Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317 (24 February 1984)

HIGH COURT OF AUSTRALIA

GERAKITEYS v. THE QUEEN [1984] HCA 8; (1984) 153 CLR 317

Criminal Law

High Court of Australia
Gibbs C.J.(1), Murphy(2), Wilson(3), Brennan(4) and Deane(5) JJ.

CATCHWORDS

Criminal Law - Conspiracy - Count charging conspiracy to defraud divers insurance companies by accused, another named person and others - No evidence to support conspiracy charged - Evidence to support conspiracy between the accused and other named person - Conviction - Appeal - Order for new trial - Whether appropriate - Criminal Appeal Act 1912 (N.S.W.), s. 8.

HEARING

1983, September 1; 1984, February 24. 24:2:1984
APPLICATION for special leave to appeal from the Supreme Court of New South Wales.

DECISION

1984, February 24.
The following written judgments were delivered: -
GIBBS C.J. This is an application for special leave to appeal from a Wales, setting aside the applicant's conviction for conspiracy and ordering a new trial. The facts of the case are set out in detail in other judgments. The applicant was convicted on two charges of conspiracy: (1) that between 1 April 1975 and 3 May 1978 he conspired with a person known as Harrison and divers other persons to cheat and defraud divers insurance companies; and (2) that between 1 March 1977 and 9 May 1978 he conspired with Harrison and divers other persons to defraud the Commonwealth. The particulars furnished by the Crown showed that nine persons, other than the applicant and Harrison, were parties to the first conspiracy alleged, and that five persons, other than the applicant and Harrison, were parties to the second conspiracy alleged. The learned members of the Court of Criminal Appeal treated the fate of the second charge as being consequential upon that of the first, and it is therefore sufficient for me to confine my discussion to the first count. In relation to that count, Street C.J., with whom Nagle C.J. at C.L. agreed, said that there was no evidence sufficient to indicate that all of the nine persons other than the applicant and Harrison had been jointly involved with each other, as well as with the applicant and Harrison, in the conspiracy. The evidence pointed to the existence of four separate conspiracies stemming from a central arrangement to which the applicant and Harrison were parties. As Street C.J. said, "of the eleven persons named as conspirators in the particulars of the first count, two were the appellant and Harrison, and the remaining nine participated, one as a solo claimant, two together, another two together and the remaining four together". Besides the arrangement between the applicant and Harrison, there were four similar arrangements involving various persons who were intended to make fraudulent claims on a particular insurance company, but no arrangement, to which all nine claimants were parties, to defraud all those companies. Street C.J. went on to say that there had been a misdirection, in that the jury were told that they might convict the applicant of the conspiracy to defraud a number of insurance companies if there was evidence of an agreement between Harrison and the applicant to defraud one insurance company. The third member of the Court, Samuels J.A., expressed agreement with Street C.J., but added some remarks in the course of which he referred to the misdirection, but not to the absence of evidence of the wider conspiracy. (at p320)

2. Clearly there was a serious misdirection, and the conviction was rightly quashed. However, even if there had been no misdirection, the conviction could not have been sustained, since there was no evidence to support it. Counsel for the Crown did not contest the correctness of the view expressed by Street C.J. that there was no evidence of a conspiracy between eleven persons to defraud a number of insurance companies, but contended that on the indictment as framed it would have been open to the jury to have convicted the applicant of a conspiracy with Harrison and, say, the four claimants who were jointly involved, or even of a conspiracy with Harrison alone. He particularly relied on Reg. v. Greenfield (1973) 1 WLR 1151, at p 1157; (1973) 3 All ER 1050, at p 1055; 57 Cr.App.R. 849, at pp. 857-858. , where Lawton L.J. said that "if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the defendants, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury". (at p320)

3. The jury in this case could not have found that the applicant and Harrison and any one or more of the nine claimants were guilty of the conspiracy alleged, because the evidence did not show that any claimant had a common purpose with the applicant and Harrison to defraud divers insurance companies. Each claimant had only the purpose of defrauding his own insurer. The case resembles Reg. v. Griffiths (1966) 1 QB 589 ; and see also Reg. v. Macdonald (1963) 10 CCC (2d) 488 . It should have been obvious from the nature of the case that, assuming the correctness of the Crown evidence, the claimants were parties to a number of different conspiracies, not to one common conspiracy. However, on the Crown case the applicant and Harrison did have the common purpose of achieving a fraudulent objective. Was it the conspiracy charged, so that the jury might have convicted the applicant on proof that he conspired only with Harrison? In my opinion, a conspiracy between the applicant and Harrison was not the conspiracy charged. The particulars, imprecise though they may be thought to be, point to a conspiracy which involved the persons who were intended to make the fraudulent claims. It might have been enough, under s. 393 of the Crimes Act 1900 (N.S.W.) if it had been proved that the applicant and Harrison had conspired in the manner alleged with one or more of those intended claimants, but that was not proved, because, as I have said, no claimant intended to defraud more than one insurance company. In seeking to obtain a conviction against the applicant based on a conspiracy made only with Harrison, the Crown would have shifted its ground from that defined by the particulars, which it did not seek to amend. For these reasons I consider that the applicant could not properly have been convicted at the trial of a conspiracy with Harrison alone. (at p321)

4. It was submitted on behalf of the applicant that the Court of Criminal Appeal had no power to order a new trial. That submission must be rejected: s. 8 of the Criminal Appeal Act 1912 (N.S.W.) gives a wide discretionary power to order a new trial. It is however another question whether it was a sound exercise of the court's discretion to order a new trial. It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction (see Reid v. The Queen (1980) AC 343, at pp 349-350 ; and see also R. v. Wilkes [1948] HCA 22; [1948] HCA 22; (1948) 77 CLR 511, at p 518 and Andrews v. The Queen [1968] HCA 84; (1968) 126 CLR 198, at p 211 ). Clearly it would not have been a proper exercise of the discretion of the Court of Criminal Appeal to order that the applicant be tried again on a charge of a conspiracy to which all eleven conspirators were parties - a charge which there was insufficient evidence to support at the first trial. However, I doubt whether it was the intention of the learned members of the Court of Criminal Appeal that the applicant should be retried on the charge which the prosecution had failed to prove against him. The words of the count are so wide and vague that in the absence of particulars they would cover not only a wider conspiracy involving all eleven participants, but also any of the four narrower conspiracies to which the applicant, Harrison and at least one other claimant were parties. The judgments of the Court of Criminal Appeal do not discuss the question whether an order should be made for a new trial, and it is possible that it was the intention of the court that the applicant should be retried only after amendment of the particulars so as to restrict the charge to one or other of the more limited conspiracies. It was conceded by counsel for the applicant that there is nothing to prevent the Crown from now proceeding against the applicant in respect of those narrower conspiracies even if the order for a new trial is set aside. Since this is so, and since it is unlikely that the Crown would attempt to prosecute the applicant again on a charge of the wider conspiracy, it does not seem to me that the present case is one in which it would be appropriate to grant special leave to appeal. The questions of law which are involved are not in doubt, although their application may occasion differences of opinion, and the practical outcome is likely to be the same in any event. (at p322)

5. However, if a majority of the Court considers that special leave should be granted, in my opinion, the appeal must be allowed. It was technically wrong to order a new trial, since such an order would theoretically entitle the Crown to prosecute again on the charge which it had particularized but which it had failed to support by evidence. The appropriate course was to quash the conviction and to leave it to the Crown to prosecute in respect of the narrower conspiracies if it decided to do so. (at p322)

6. I would refuse special leave to appeal, but if special leave is granted I would allow the appeal. (at p322)

MURPHY J. The New South Wales Court of Criminal Appeal quashed convictions on two conspiracy counts but ordered new trials. The accused seeks special leave to appeal against the order for new trials. The prosecution does not challenge the judgment, but seeks to maintain it. The convictions were quashed because of insufficient evidence. In these circumstances, the accused is entitled as of right to an acquittal. "There is no ground for ordering a new trial on an indictment when no sufficient evidence to support it has been called at the trial" (Andrews v. The Queen [1968] HCA 84; (1968) 126 CLR 198, at p 211 ; see also Reid v. The Queen (1980) AC 343, at pp 349-350 ). Judgment of acquittal is essential to vindicate the principle against double jeopardy. The Court of Criminal Appeal did not exercise its discretion under s. 8 of the Criminal Appeal Act 1912 (N.S.W.) correctly. (at p322)

2. The prosecution suggested that it would not bring the identical charges again but there is no justification for leaving that possibility open. The prosecution had its chance and did not substantiate the charges; the defendant must be acquitted. (at p322)

3. This Court has previously criticized excessive reliance on conspiracy charges (see Reg. v. Hoar [1981] HCA 67; (1981) 148 CLR 32 ) but in some places those warnings appear to have gone unheeded. Too often, those prosecuting appear to adopt the view that an accused person must be guilty of something but, rather than identifying what that something is, choose a conspiracy charge as a dragnet. (at p323)

4. There must be regularity and precision in charges for purposes of sentencing, parole and double jeopardy, as well as to ensure that an accused person truly knows what allegations he must meet. It is essential to avoid confusion about the basis of any conviction which may result. Unless courts insist on strictness in this area there is a very real danger that, in a conspiracy trial, some members of the jury will believe the accused is guilty of conspiracy A but not B, while others will find he is guilty of B but not A. Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members. (at p323)

5. In Grunewald v. United States [1957] USSC 59; (1957) 353 US 391, at p 404 (1 Law Ed (2d) 931, at p 943) , the United States Supreme Court warned that it would view with disfavour "attempts to broaden the already pervasive wide-sweeping nets of conspiracy prosecutions". The abuses to which that warning was directed have become very evident in Australia. This case is an illustration. (at p323)

6. Special leave should be granted, the appeal allowed, the order for a new trial set aside, and judgment of acquittal entered. (at p323)

WILSON J. I agree with the Chief Justice in concluding that the Court of Criminal Appeal should not have ordered a new trial. I have nothing to add to the reasons which his Honour advances in support of that conclusion. I also agree, for the reasons given by his Honour, that the circumstances of the case do not present features which would render it appropriate for the Court to grant special leave to appeal. (at p323)

2. I would refuse special leave to appeal but if leave is granted would allow the appeal. (at p323)

BRENNAN J. On 14 September 1981 in the District Court of New South Wales an indictment was presented charging the applicant, a medical practitioner, on two counts, namely:
"(a) That the applicant between the first day of April, 1975 and the third day of May, 1978 at Sydney in the said State did conspire with Haralambos Haralabopoulos also known as Harry Harrison (and) divers other persons to

cheat and defraud divers insurance companies;
(b) That the Applicant between the first day of March, 1977 and the ninth day of May, 1978 at Sydney in the said State did conspire with Haralambos Haralabopoulos also known as Harry Harrison and divers other persons to defraud the Commonwealth."

The first count has come to be known as the insurance count, the second as the social security count. (at p324)

2. Prior to the presentation of the indictment, particulars of each of the counts which were then intended to be joined in the indictment were sought and given. The Crown and the defence understood those particulars to be the particulars of the indictment as presented. The conspiracy relating to the insurance companies was alleged to have been made orally, and the following particulars were given:
". . . Haralambos Haralabopoulos also known as Harry Harrison was an insurance agent who arranged general insurance with a number of the conspirators. At some stage Harrison suggested to each of the conspirators that they should obtain personal insurance in the form of a sickness and accident policy providing weekly benefits in the event of sickness and accident. Harrison accompanied, from time to time, the conspirators separately from his office at Marrickville to various insurance companies in the city. On such visits insurance proposals were signed and policies taken out. Thereafter claim forms were sent to the conspirators and those forms were partly completed by Harrison. After such partial completion Harrison and each of the conspirators, from time to time, went to see Dr. Gerakiteys who completed the medical certificate on the form provided to him or alternatively provided his own medical certificate as to the alleged disability or illness suffered by the particular conspirator. In each of these consultations with Dr. Gerakiteys there was no medical examination of the conspirator made by him, the conspirator paid money to him and signed a Medibank assignment form. Each conspirator made a claim or claims against the various insurance companies and those claims were accompanied by false certificates of disability provided by Dr. Gerakiteys. As a result of such claims the various insurance companies provided benefits by way of cheques to the conspirators presenting such certificates. Such conspirators receiving such payments, at Harrison's instigation, opened bank accounts in various locations, banked the cheques and paid some of the proceeds to Harrison. None of the conspirators suffered from the illnesses or injuries alleged in the claim forms and it is the allegation of the Prosecution that at all times Harrison and Gerakiteys were well-aware that there was nothing wrong with any of the conspirators as claimed in the medical certificates issued by Dr. Gerakiteys."
The parties to the conspiracy relating to the insurance companies were alleged to be the applicant, Harrison and nine other persons each of whom had allegedly accepted Harrison's suggestion and had made a claim on an insurance company accompanied by a false certificate of disability provided by the applicant. (at p324)

3. The social security conspiracy was alleged to have been made orally, and the following particulars were given:
"Haralambos Haralabopoulos (Harry Harrison) was an insurance agent who arranged general insurance for some of the conspirators. Harrison suggested that he (Dr. Gerakiteys) should call at the home of some of the co-conspirators. He did call at the house of Mr. and Mrs. Mitrakos and said words to the effect: 'I want you to get the pension. First of all I fix this form, I put Christos (Mitrakos) in first and later on I put John

(Giannakopoulos).'
Harrison suggested that Christos Mitrakos go to Dr. Gerakiteys firstly.
Harrison, when asked how was the pension obtained, said that he had a way that the conspirators would obtain the pension and that he had doctors who would fix it. He further said that each one who applied would need to stay for a year on sickness benefits and afterwards each would make application for the pension. Later, Harrison introduced each conspirator seeking sickness benefits to Dr. Gerakiteys. It was said by Harrison in the presence of the various applicants and Dr. Gerakiteys that some time would be given off work whereupon the doctor, without examining or consulting with the applicant wrote a certificate giving the applicant time off work. The signature of the applicant was then obtained to a Medibank assignment form before leaving. Thereafter, the applicant conspirators, who had previously been in good health, did not return to their previous work and commenced to receive social security payments. Initially, both Messrs. Mitrakos and Giannakopoulos were given two medical certificates, one to be taken to the Social Security Department and one to their respective employers indicating that they would be unable to return to work because of permanent incapacities.
Subsequently social security cheques arrived and after Mitrakos commenced receiving his cheques Harrison suggested to Giannakopoulos that it was his turn and he was to do the same as Mitrakos had done.
The social security cheques once received were banked into newly-opened bank accounts. The applicant conspirators regularly attended the surgery of Dr. Gerakiteys; were not examined by him; basically were not spoken to by him; and on no occasion were they suffering from any illness or disability. Despite this Dr. Gerakiteys issued medical certificates certifying as to disability and illness and unfitness for work. After paying money in cash to Dr. Gerakiteys in his surgery the applicant conspirators left and on the way out signed a Medibank assignment form.
Gerakiteys on a number of occasions told the patients that he would get them on the pension.
A number of the conspirators were referred to other doctors for opinion in an effort to bolster the claim for the invalid pension and Harrison coached them in what they should say and the appearances they should present to those doctors. Gerakiteys on receiving unfavourable reports from some of those doctors to whom his patients were referred, said words to the effect: "This is no good. I'll send you to another doctor.'"

The parties to the social security conspiracy were alleged to be the applicant, Harrison and five other persons each of whom had allegedly applied for and received social security benefits. (at p326)

4. After a lengthy trial the jury found the applicant guilty on both counts and he was sentenced to a period of imprisonment. He appealed to the Court of Criminal Appeal which allowed the appeal, quashed the convictions and ordered that a new trial be had upon the indictment. The applicant now seeks special leave to appeal against the order for a retrial. This Court has not been furnished with the voluminous transcript of the trial, but the nature of the Crown case appears from the judgment of Street C.J. in the Court of Criminal Appeal:
"It was the Crown case that the appellant, a medical practitioner, had been the author of a large number of false medical certificates, the contents of which certified that individual persons had suffered from a physical disability, and in consequence, that they had been unfit. The appellant's participation in the furnishing of these certificates was invoked by the man named in the indictment, Harrison. Harrison was an insurance agent. As such, he procured a number of persons to take out insurance policies (this being the substance of the first count) against sickness and accident. In all, some 19 companies were involved in the issuing of policies of this nature. Having arranged for the issue of the policies, Harrison then arranged for the individuals concerned to call at the surgery of the appellant, whereupon the appellant furnished them with the certificates that have been mentioned. Altogether as far as the first count was concerned, fifty-three such false certificates were furnished. These were used by the nine persons named as being the divers other persons involved in the conspiracy alleged in the first count for the purpose of making claims on the insurance companies with which

individually they had taken out these policies.
The second count, . . . involved a similar participation by the appellant in the falsification of claims upon the Commonwealth in respect of Social Security entitlements of four persons."

His Honour said that there was "a central, conspiratorial arrangement" between Gerakiteys and Harrison and that the arrangement was "carried into effect through the groups or individuals who participated in particular claims on particular insurance companies". The evidence in relation to the social security count threw up what his Honour described as "separate, individual sub-conspiracies". (at p326)

5. Apparently there was no variation of present significance between the indictment and the particulars given on the one hand and the evidence adduced by the Crown on the other. Gerakiteys and Harrison allegedly devised the steps to be taken in defrauding insurance companies and arranged with each claimant that he should make a fraudulent claim; but it was neither alleged nor proved that any claimant had knowledge of the claims made by all the other claimants or knew of Gerakiteys' and Harrison's object of effecting a series of frauds upon a number of insurance companies. Similarly, it was neither alleged nor proved that the claimants for social security benefits knew of the social security claims made by all the other claimants or knew of Gerakiteys' and Harrison's object of effecting a series of frauds upon the Commonwealth. (at p327)

6. It appears that, in framing the indictment and in presenting the Crown case, the prosecution failed to distinguish between the primary conspiracies to defraud divers insurance companies and to effect a series of social security frauds and consequential conspiracies to effect particular frauds (cf. Reg. v. Ardalan (1972) 1 WLR 463, at pp 469-470; (1972) 2 All ER 257, at pp 261-262; 56 Cr. App. R. 320, at pp. 329-330. ). The Crown attempted to subsume several conspiracies within the single conspiracy charged in each count of the indictment. That was a fundamental misconception. It result in a confusion of the issues at the trial, and it induced the learned trial judge to direct the jury that, if they found the existence of what was in truth a particular separate conspiracy, they should return a general verdict of guilty on the relevant count in the indictment. That direction, as the Court of Appeal held, was erroneous. (at p327)

7. The identity of a conspiracy is to be found in what the conspirators commonly agree to or accept: a conspiracy is proved by evidence of the actual terms of the agreement made or accepted or by evidence from which an agreement to effect common objects or purposes is inferred. If two conspirators agree to effect several unlawful objects and a third person agrees with them to effect some only of those objects, there are two conspiracies not one: the original conspirators are parties to both conspiracies, the third person is a party only to the conspiracy with the more limited objects. That was the unanimous opinion of the judges who were summoned to advise the House of Lords in O'Connell v. The Queen [1844] EngR 880; [1844] EngR 880; (1844) 11 Cl & F 155 (8 ER 1061) . Lord Chief Justice Tindal stated the judges' opinion that where the jury had found some accused guilty of conspiracy to effect all the objects stated in the charge and some to effect part only of those objects the findings were insupportable in law. His Lordship said (1844) 11 Cl & F, at p 237 (8 ER, at p 1093) that:
". . . the reason and ground for such opinion is this: That as each count of the indictment charges one conspiracy or unlawful agreement, and no more than one, against all the defendants in such count, so the jury could find only one conspiracy or unlawful agreement on each separate count; for though it was competent to the jury to find one conspiracy on each count, and to have included in that finding all or any number of the defendants, yet it was not competent for them to find some of the defendants guilty of a conspiracy to effect one or more of the objects stated, and others of the defendants guilty of a conspiracy to effect others of the objects stated; because that is, in truth, finding several conspiracies, on a count which charges only one. The case of R. v. Hempstead (1818) Russ & RyCroCas344(168 ER 837) is strong in support of this principle, when applied to the case of larceny. The indictment contains one charge: the jury cannot find more than one." (at p328)

8. That is not to say that a person who performs one only of several overt acts of a conspiracy cannot be a party to the conspiracy: the question is whether he has agreed that effect be given to all the objects or purposes of the conspiracy (so that his overt act gives only partial effect to those objects or purposes), or whether his agreement is limited to part only of those objects or purposes. In the latter case, it may be that his overt act gives effect fully to the agreed objects or purpose. In Reg. v. Griffiths (1966) 1 QB 589, at p 599 Paull J., speaking for the Court of Criminal Appeal, gave an illustration of the principle:
". . . the Post Office clerk who agrees to alter a date stamp in a case where a bookmaker has been swindled must know that the alteration is to be used for a fraudulent purpose. He therefore joins a scheme to defraud that bookmaker, of whom he may not have heard, but he cannot be indicted, merely because he has agreed to alter that stamp, on a charge of a conspiracy to alter date stamps and cheat bookmakers all over the

country.
We venture to say that far too often this principle is forgotten and accused persons are joined in a charge of conspiracy without any real evidence from which a jury may infer that their minds went beyond committing with one or more other persons the one or more specific acts alleged against them in the substantive counts, or went beyond a conspiracy to do a particular act or acts." (at p328)

9. Looking to the objects of the conspiracy charged in each count in the indictment, the indictment charges a single conspiracy in relation to the insurance companies and a single conspiracy in relation to social security frauds. The reference in the indictment to "divers other persons" does not contain the leading description of the conspiracies charged therein; the leading description must be taken to be the object or purpose of each conspiracy which gives the conspiracy its identity. Construing the indictment in this way, the issue for the jury on the insurance count was simply whether the accused Gerakiteys had conspired at least with Harrison "to cheat and defraud divers insurance companies" and, on the social security count, whether Gerakiteys had conspired at least with Harrison "to defraud the Commonwealth" in a series of social security frauds. On this approach, it is immaterial that the evidence did not inculpate the several claimants in the relevant conspiracy, but inculpated each of them in another conspiracy, namely, a conspiracy to effect a particular fraud upon a particular insurance company or upon the Commonwealth as the case may be. It is clear that an insufficiency of evidence to inculpate one alleged conspirator in a conspiracy does not entitle other conspirators to an acquittal, for the jury may find all or any of two or more alleged conspirators are guilty of a conspiracy to effect all or some of the improper purposes alleged, provided those who are convicted had agreed to effect the same improper purposes: R. v. Ongley (1940) 57 WN (NSW) 116 . It is equally clear that a trial upon an indictment charging a single count of conspiracy does not miscarry when evidence is led which shows that an accused is or may be a member of another conspiracy: Reg. v. Greenfield (1973) 1 WLR 1151, at pp 1156-1157;(1973) 3 All ER 1050, at p 1056; 57 Cr.App.R. 849, at p. 858. . On this approach to the indictment, the Crown case was simply insufficient to prove that the respective claimants were parties to the conspiracies charged in the respective counts in the indictment, but there was nevertheless sufficient evidence to prove that Gerakiteys and Harrison conspired to effect the unlawful purposes alleged in the indictment and the particulars. I would therefore agree with the order of the Court of Criminal Appeal that Gerakiteys be retried on the existing indictment. (at p329)

10. However, the indictment in its present form and the particulars, which remain unamended, perpetuate the confusion on each count between a primary conspiracy between Gerakiteys and Harrison on the one hand and a series of consequential conspiracies between them and each of the several claimants or groups of claimants on the other. The respective conspiracies charged were complete when Gerakiteys and Harrison agreed to effect the unlawful objects alleged. Although each conspiracy continued so long as the fraudulent claims were being made (Director of Public Prosecutions v. Doot (1973) AC 807 ; Reg. v. Cuthbertson (1981) AC 470, at p 481 ) and although each conspiracy was open to be joined by any claimant who agreed with Gerakiteys or Harrison to give effect to the unlawful objects upon which those two persons had agreed (R. v. Murphy (1837) 8 Car & P 297, at p 311 [1837] EngR 1120; (173 ER 502, at p 508) ), there was no evidence that the "divers other persons" mentioned in the insurance count, i.e., the claimants whose names appear in the particulars, became parties to a conspiracy to defraud "divers insurance companies", and there was no evidence that the "divers other persons" named in the particulars of the social security count became parties to a single, wide-ranging conspiracy to defraud the Commonwealth. There was no evidence under either count of a general conspiracy to which the respective classes of claimants were parties. (at p330)

11. Counsel for the applicant submitted that it is wrong in principle to order a retrial if there is no evidence to support the charge contained in the indictment. The principle can be accepted (cf. Reid v. The Queen (1980) AC 343, at pp 349-350 ), but the question is whether the principle applies in this case. Reliance was placed on what Street C.J. said in his judgment in the Court of Criminal Appeal:
"The difficulty thrown up by the way in which the evidence came out was that there was no evidence sufficient to indicate that all of the other nine persons, apart from the appellant and Harrison, named as the participants in the conspiracy on the first count, had been jointly involved with each other, as well as with the appellant and Harrison in the conspiracy which was charged."
That deficiency in the evidence would be critical if the reference in the indictment to the alleged parties rather than the reference to the alleged objects or purposes had identified the conspiracies charged. But the identifying characteristic of each conspiracy - its object or purpose - must be taken as the governing description. The indictment's false allegation that the claimants were parties to the conspiracies charged is not a sufficient reason for setting aside the order for retrial (made pursuant to s. 8 of the Criminal Appeal Act 1912 (N.S.W.)). There was evidence that Gerakiteys and Harrison were parties to conspiracies to defraud divers insurance companies and to carry out a series of social security frauds, and it would not be right to make the alternative order (for which s. 6(2) of the Act provides), namely, an order directing that a judgment and verdict of acquittal be entered on those charges. (at p330)

12. However, the indictment should be amended to delete the references to the "divers other persons" in each count, lest the retrial be affected by the confusion which affected the first trial. That amendment can be made by the court before which the retrial takes place. I would grant special leave to appeal, and dismiss the appeal. (at p331)

DEANE J. The applicant's conviction in the District Court of New South Wales on each of two counts of conspiracy has been quashed by the New South Wales Court of Criminal Appeal which ordered that he been tried again on the indictment containing those two counts. The applicant seeks special leave to appeal from that order of a new trial. At the heart of the applicant's case there lies a submission that the evidence at his trial, while adequate to found a verdict of guilty of a number of other conspiracies with which he had not been charged, was insufficient to found a verdict of guilty of either of the conspiracies with which he was charged. The applicant conceded that there is nothing to prevent the Crown from now charging him with those other conspiracies. His contention is that the Crown, having failed to lead evidence capable of sustaining the charges against him, should not now be given a second chance to prove his guilt on those same charges. I am persuaded that, if the submission that the case presented by the Crown was insufficient to found a verdict of guilty of either of the offences with which the applicant was charged and for which he has stood trial is correct, the applicant was and is entitled to be acquitted of those charges (Andrews v. The Queen [1968] HCA 84; (1968) 126 CLR 198, at p 211 ; Reid v. The Queen (1980) AC 343, at pp 349-350 ). The more difficult question is whether that submission has been made good. (at p331)

2. The first of the two counts in the indictment was that the applicant between 1 April 1975 and 3 May 1978 at Sydney conspired with a Mr. Haralabopoulos (also known as and hereinafter called "Harrison") and "divers other persons to cheat and defraud divers insurance companies". The second count was that the applicant between 1 March 1977 and 9 May 1978 at Sydney conspired with the said Harrison "and divers other persons to defraud the Commonwealth". Those counts are, in their terms, vague and uninformative. It is convenient to turn immediately to the consideration of the prosecution case in relation to the first of them. (at p331)

3. The facts alleged by the Crown at the trial to sustain the first count can be shortly summarized. The applicant carried on practice as a medical practitioner. Harrison was an insurance agent. The "divers other persons" were nine individuals ("the nine insured" or "the insured") who, at Harrison's instigation, had taken out sickness and accident insurance with one of a number of insurance companies. By arrangement between Harrison and the applicant, each of the nine insured obtained from the applicant at least one medical certificate which falsely stated that he or she was ill or disabled and which he or she forwarded, together with a claim for payment of benefits, to the relevant insurance company. As a result of such claims, the insurance companies paid moneys, by way of cheque, to the insured who, in turn, paid part of the proceeds of the fraud to Harrison. For his part, the applicant received, from the insured, a payment of money and a signed Medibank assignment form at the time he provided a false medical certificate. The Crown alleged that the applicant issued the medical certificates without any physical examination of the insured and that, as the applicant and Harrison were at all times aware, none of the insured suffered from the illnesses or injuries stated in the relevant medical certificates. (at p332)

4. The involvement of the nine insured with the applicant and Harrison was summarized by Street C.J. in the Court of Criminal Appeal as follows:
"In respect of the eleven persons named as conspirators in the particulars of the first count, two were the appellant and Harrison, and the remaining nine participated, one as a solo claimant, two together, another two together and the remaining four together. There were accordingly altogether some four separate ventures undertaken by claims on insurance companies, originating from the central, fraudulent arrangement proved to have been made between the appellant and Harrison. The difficulty thrown up by the way in which the evidence came out was that there was no evidence sufficient to indicate that all of the other nine persons, apart from the appellant and Harrison, named as the participants in the conspiracy on the first count, had been jointly involved with each other, as well as with the appellant and Harrison in the conspiracy which was charged." (at p332)

5. It is apparent that the facts alleged by the Crown at the trial involved at least five distinct conspiracies. One consisted of a central conspiratorial arrangement between the applicant and Harrison alone that particular arrangements would be made with another person or other persons for such other person or persons to be placed in a position and furnished with the means to make fraudulent claims upon an insurance company or insurance companies. The other four were four separate consequential conspiracies to which Harrison, the member or members of one or other of the four groups of insured and, arguably, the applicant were parties involving the making of claims by the particular insured. On the other hand, the facts alleged by the Crown at the trial failed to provide a basis for a finding of a single all-embracing conspiracy between the applicant, Harrison and all of the "divers other persons" (i.e., all nine insured) involving all of the separate steps which were taken to cheat and defraud the various insurance companies. There was no general conspiracy to which all the insured were parties and no one insured was a party to a conspiracy involving the making of claims by a member of a group of insured other than his own. (at p333)

6. In these circumstances, it becomes critical to determine precisely what conspiracy it was which the Crown alleged against the applicant in the first count of the indictment. Notwithstanding that the applicant has already been tried once on that count, the answer to that question remains obscure if one pays regard only to the wording of the count and the facts alleged by the Crown at the trial. Theoretically, if the words "divers other persons" are read as including the singular, the first count is capable of embracing any one of the five conspiracies (i.e., an overall conspiracy between the applicant and Harrison alone and the four consequential conspiracies between the applicant, Harrison and the member or members of one or other of the four groups of insured) which the facts alleged by the Crown arguably involved. The words of the first count are also appropriate to refer to an overall conspiracy between the applicant, Harrison and all nine insured which the facts alleged against the applicant at the trial were incapable of sustaining. (at p333)

7. As Street C.J. pointed out in the course of his judgment in the Court of Criminal Appeal, it is, where the use of a conspiracy count is availed of by the Crown, "essential - indeed fundamental - that the precise nature of the conspiracy be carefully analyzed prior to the commencement of the proceedings". It is plain enough that there was a failure in the present case to attempt any such precise analysis. It would seem, from the conduct of the trial, that that failure was the result of an approach that it sufficed to allege one overall conspiracy between all possible conspirators involving the making of all of the relevant claims on the basis that, if that overall conspiracy or any one of a variety of consequential conspiracies which might be subsumed within it could be proved, the Crown would be entitled to a verdict that the applicant was guilty of the conspiracy charged. If that were, in truth, the approach adopted by those advising the Crown, it was mistaken. "A count in conspiracy must comply with the general rule of charging one offence only . . . . Where a count in conspiracy charges, as it should do, only one conspiracy to effect some one or more improper purposes, the only issue before the jury under that count is whether all or any of the accused are guilty of the conspiracy alleged" (per Jordan C.J., R. v. Ongley (1940) 57 WN (NSW) 116, at p 117 ). Where the single conspiracy charged is to effect more than one unlawful purpose, the jury may find a single conspiracy to effect some only of those purposes (see O'Connell v. The Queen [1844] EngR 880; [1844] EngR 880; (1844) 11 Cl & F 155 (8 ER 1061) ). The jury cannot, however, find two conspiracies under a count which charges one only nor find an accused guilty of a conspiracy which is a distinct and different conspiracy to that which the count alleges (R. v. Ongley (1940) 57 WN (NSW), at p 117 ). In particular, where a single conspiracy has been charged, it is not open to the jury to find the accused guilty of a consequential but different conspiracy which flowed from that which is the subject of the actual charge. (at p334)

8. The gist of the crime of conspiracy lies in the making of the relevant agreement. It is the subject-matter and purpose of the agreement which determines whether it is criminally unlawful. There must be at least two parties to a conspiracy. That apart however, the number and identity of the co-conspirators may be inessential to the identification or proof of the particular conspiracy with which an accused is charged. Indeed, as a matter of common law principle, an accused may be convicted of conspiring "with a person or persons unknown" to commit an unlawful act (see Archbold's Pleading, Evidence and Practice in Criminal Cases, 41st ed. (1982), p. 2057; Reg. v. Howes (1971) 2 SASR 293 ; Reg. v. Anthony (1965) 2 QB 189, at pp 192-193 ). More in point to the present case, s. 393 of the Crimes Act 1900 (N.S.W.) expressly provides that an accused "may be charged separately, in any count, as having conspired with divers persons, of whom it shall be sufficient to name one only . . . and may be convicted on such count upon proof of his having unlawfully conspired for the purpose therein alleged with any one such person". On the other hand, the number and the identity of the co-conspirators may be relevant and, conceivably, even essential to both the identification of the subject-matter of the conspiracy which is alleged against an accused and to the actual proof of guilt of that conspiracy. For example, the question whether the intended perpetrator of an unlawful act is actually a party to a conspiracy is likely to be of critical importance on the question whether the conspiracy is a conspiracy to commit the act as distinct from a conspiracy to procure its commission by another. In such a case, s. 393 of the Crimes Act 1900 (N.S.W.) in no way alters the established common law position that a person cannot be found guilty of a distinct and different conspiracy to that which the count in the indictment alleges. Indeed, as I followed the argument, no submission to the contrary was advanced on behalf of the Crown. (at p335)

9. As has been seen, the wording of the first charge in the indictment in the present case is so vague and imprecise that it is arguable that it refers to any one of a number of different alleged or conceivable conspiracies. All of those conspiracies had a direct or indirect purpose of cheating and defrauding an insurance company or insurance companies. That being so, the reference to purpose in the count offers little assistance in identifying the single conspiracy to which the count relates. In that context and in circumstances where the identity of the alleged co-conspirators is of importance in determining whether the conspiracy charged is a conspiracy to make the fraudulent claims or a conspiracy to procure or enable the making of those claims by persons who were not conspirators, the statement in the charge that the applicant conspired with Harrison "and divers other persons" assumes particular significance on the question of the subject matter of the alleged conspiracy. Once those "divers other persons" are identified as all nine insured, there is something to be said for the view that, as a mere matter of construction, the count should be confined to alleging a single allembracing conspiracy to which the applicant, Harrison and all nine insured were parties as distinct from a conspiracy to which the applicant and Harrison alone were parties or a consequential conspiracy between the applicant, Harrison and the member or members of but one group of insured. It is, however, unnecessary to pursue that question since that reading of the count is unambiguously confirmed by reference to the particulars supplied by the Crown before the trial commenced. (at p335)

10. The particulars of the charge are contained in answers given by the Crown to specific questions which had been asked in a letter from the solicitor for the applicant. The questions and answers must be read together. So read, the particulars identified each of the applicant, Harrison and the nine insured as "a party to the conspiracy" and stated that all of the eleven alleged conspirators were parties "in each and every instance" to any alleged agreement or agreements from which the conspiracy was alleged to have arisen. Such "agreement or agreements" were stated, in the particulars, to have been entered into in or about April 1975 and subsequently in various conversations at the offices of Harrison "and in the homes of the various conspirators" and in various other conversations. The Crown declined to provide particulars of the words used in the various conversations on the ground that that was a matter of evidence but made clear, in the particulars, that the conspiracy alleged in the first count was a single conspiracy to which all eleven named conspirators were parties and which involved the making of claims by all of the nine insured and the receipt of money from the insurance companies by all of the nine insured. Such a general conspiracy between the applicant, Harrison and all nine insured, involving the making of all insurance claims by the nine insured as conspirators, is distinct and different from either a more limited general conspiracy between the applicant and Harrison to involve others in the making of fraudulent claims or particular consequential conspiracies between the applicant, Harrison and the member or members of a particular group of insured involving only the making of claims "by the member or members of that group". The difference between such a general conspiracy and the conspiracies which the facts alleged at the trial were capable of sustaining is not merely a difference in parties. It is a difference in nature and subject-matter. (at p336)

11. It has not been suggested, on behalf of the Crown, that the particulars of the first count were either abandoned or effectively varied in the course of the trial or that the Crown case at the trial should be seen otherwise than in the context of the particulars which it had supplied. That being so, the particulars effectively resolve the difficulty in identifying which of the conceivable conspiracies the first count of the indictment charged against the applicant. The conspiracy charged and the conspiracy for which the applicant has stood trial was a general conspiracy between all eleven alleged conspirators which embraced the actual making of all the claims by the nine insured in their capacity as conspirators. Since, as has been seen, the facts alleged by the Crown were not capable of sustaining such a general conspiracy, the applicant was entitled, on the trial, to be acquitted of the charge in the first count of the indictment. That being so he should not have been ordered to be retried on that particular count. (at p336)

12. The second count in the indictment referred to allegedly fraudulent claims made by a number of persons ("the claimants") for social security payments. The members of the Court of Criminal Appeal found it unnecessary to summarize the evidence on the second count and the material before this Court in relation to it is incomplete and unsatisfactory: in particular, the summing up of the learned trial judge indicates that there was discrepancy between the particulars provided before the trial and the facts alleged on the trial as to the identity of the alleged conspirators and claimants. It was, however, common ground on the hearing of the application for special leave that, for present purposes, the considerations in relation to the second count corresponded to those applicable in relation to the first count and that the question whether a new trial should have been ordered on the second count should be answered conformably with the answer to the question whether a new trial should have been ordered on the first count. This approach would appear to be consistent with that adopted in the Court of Appeal and I propose to follow it. It follows that the applicant should not be retried on the second count and that the order of the Court of Criminal Appeal for a retrial of the applicant on the present indictment should be quashed. (at p337)

13. The making of an order quashing the order of the Court of Criminal Appeal that the applicant be retried will not, in the particular circumstances of the present application, preclude a new indictment or new indictments being presented charging the applicant with a more limited general conspiracy between the applicant and Harrison alone in relation to either the insurance or the social services claims and/or one or more of the consequential conspiracies between the applicant, Harrison and the member or members of a particular group of insured or social security claimants. The reason for that is that such an order is based upon acceptance of the applicant's argument that each of the two counts in the indictment was and is to be read as referring only to an overall conspiracy between the applicant, Harrison and all the identified insured or claimants and as not referring to a more limited conspiracy between the applicant and Harrison alone or a consequential conspiracy between the applicant, Harrison and particular insured or claimants. (at p337)

14. I would grant special leave to appeal and quash the order of the Court of Criminal Appeal for a new trial on the present indictment. (at p337)

ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order that the judgment of the Court of Criminal Appeal of the Supreme Court of New South Wales be varied by deleting the order for a new trial.