Ahern v R [1988] HCA 39; (1988) 165 CLR 87 (18 August 1988)

HIGH COURT OF AUSTRALIA

AHERN v. THE QUEEN [1988] HCA 39; (1988) 165 CLR 87
F.C. 88/037

Criminal Law

High Court of Australia
Mason C.J.(1), Wilson(1), Deane(1), Dawson(1) and Toohey(1) JJ.

CATCHWORDS

Criminal Law - Evidence - Admissibility - Conspiracy - Acts and declarations of alleged co-conspirators - Evidence of participation of accused in conspiracy - Acts done or words uttered outside presence of accused - Admissibility to prove participation - Requirement of reasonable evidence - Whether existence of reasonable evidence to be determined by judge or jury.

HEARING

1988, April 19, 20; August 18. 18:8:1988
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

MASON C.J., WILSON, DEANE, DAWSON AND TOOHEY JJ. The applicant was convicted upon one count of conspiracy to defraud the Commonwealth. He was indicted alone, three of his alleged co-conspirators having been tried and convicted in other proceedings. The case against the applicant was that he had knowingly participated in a scheme to evade the payment of income tax. Speaking in the broadest of terms, the scheme involved the acquisition of target companies with profits for the current financial year at a price which did not reflect the contingent tax liability in respect of those profits. Upon this transaction the vendor shareholders paid a fee. The companies were then stripped of their profits and "dumped" by steps which passed ownership and control to straw persons. The result was that the companies could not, and did not, meet their liability to pay tax.

2. At his trial the applicant admitted the existence of a conspiracy to defraud the Commonwealth. There was no contest that a scheme of the type described above had been devised and carried out by persons alleged to be the applicant's co-conspirators, nor was there any contest that the applicant, who was an accountant, had introduced clients whose companies had been used in the scheme. There was evidence that the applicant had in relation to those companies taken part in various activities which were part of the scheme and had shared in the fee which was paid by vendor shareholders. The applicant's defence was that what he did formed no part of any scheme to engage in fraudulent conduct. His case was that at all times he believed that the companies in question would be "treated" rather than "dumped", that is to say, that they would be dealt with in a manner designed to avoid or reduce the liability to pay tax on the income which had been already earned, rather than stripped of their assets to prevent the effective collection of the tax for which they remained liable. The prosecution, on the other hand, contended that the inference to be drawn from his activities was that the applicant knew that the companies with which he was concerned were to be "dumped" and that he participated knowingly in the conspiracy to defraud.

3. The sole point which was argued before us arises from a direction given to the jury by the trial judge in his summing up. His Honour directed the jury to have regard first of all only to the evidence "directly admissible" against the applicant, that is to say, the evidence of his own acts and declarations, any acts or declarations of others which he adopted or what others did at his direction. The purpose of looking at this evidence alone was, according to the trial judge's direction, to determine whether there was a prima facie case that the applicant was a party to the conspiracy. If the jury were satisfied that there was prima facie proof of the applicant's participation, so the charge continued, they might then look at all the evidence, including the acts and declarations of the other conspirators, for the purpose of determining the nature and extent of the underlying agreement and for the purpose of deciding the ultimate issue of the applicant's "guilty participation". It is this direction which was said by the applicant to have been erroneous.

4. An appropriate starting point from which to consider the use which might be made of the acts and declarations of one co-conspirator against another is the rule of thumb referred to in Tripodi v. The Queen [1961] HCA 22; (1961) 104 CLR 1, at p 7. There it was said to be an "empirical but practical and convenient test" that acts and declarations done or made outside the presence of an accused are not admissible against him. Practical and convenient though that test might be, it can be no more than a rule of thumb, because it is clear that it has a limited application. It represents an attempt to state in practical terms the effect of the hearsay rule although, of course, acts (other than certain acts of communication) cannot of themselves constitute hearsay and, strictly speaking, lie outside the rule. However, acts may contain an implied assertion on the part of the actor which makes it appropriate to treat evidence of those acts for some purposes as the equivalent of hearsay. A conspirator may, in the absence of another person alleged to be a co-conspirator, say or do something carrying with it the implication that the other person is involved. The statement or the act may be admissible in evidence to prove the fact of a conspiracy and, by way of admission, the participation of the maker of the statement or the actor in that conspiracy. But evidence of neither the statement nor the act should, except in the circumstances which we shall elaborate presently, be admitted against the other person to prove his participation because it would for this purpose be hearsay or the equivalent of hearsay.

5. In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

6. Thus it was said in Tripodi, at p.6, that proof of the crime of conspiracy "may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment". For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion 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 as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant. It was such a situation that Isaacs J. had in mind in The King and the Attorney-General of the Commonwealth v. Associated Northern Collieries ("the Coal-Vend Case") [1911] HCA 73; (1911) 14 CLR 387 when he pointed out that both the fact of combination and the participation of the participants may be proved by the same evidence. At p.400 he said:

"... though primarily each set of acts is
attributable to the person whose acts they are, and
to him alone, there may be such a concurrence of
time, character, direction and result as naturally
to lead to the inference that these separate acts
were the outcome of pre-concert, or some mutual
contemporaneous engagement, or that they were
themselves the manifestations of mutual consent to
carry out a common purpose, thus forming as well as
evidencing a combination to effect the one object
towards which the separate acts are found to
converge."

7. However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.

8. That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi, at p.7. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.

9. The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence "hearsay would lift itself by its own bootstraps to the level of competent evidence": Glasser v. United States [1942] USSC 36; (1942) 315 US 60, at p 75. In that case, Glasser, who was charged with conspiracy to defraud the United States, had red hair. Evidence was led of a declaration by an alleged co-conspirator in the absence of Glasser that "he would have to see 'Red,' or send the money over to the 'red-head,' etc., in connection with 'fixing' cases" (at p.73). In accordance with accepted principle, such evidence was held to be admissible "only if there is proof aliunde that he is connected with the conspiracy" (at p.74). That, of course, still leaves two questions. The first is the degree or standard of proof of the evidence from another source which is required. The second is whether it is for the trial judge or the jury to decide whether proof of the required standard exists.

10. Turning to the first question, if it is proof beyond reasonable doubt which is required, then the evidence of acts and declarations of co-conspirators led to prove the participation of an individual in the combination would be of no value in proving that fact. At most its relevance would be to show the nature and extent of the participation, once the actual participation had been proved beyond reasonable doubt. This was recognized by Street C.J. in R. v. Gunn & Howden (1930) 30 SR(NSW) 336, at p 343 where he said:

"In point of fact if the agreement or common
purpose, which is the gist of the offence, could be
proved aliunde the acts or declarations of the
different parties in pursuance of the common
purpose would not be required to be proved. In
practice however, as is pointed out, they are
almost universally put forward for the purpose of
proving the conspiracy itself, and this case was no
exception to that practice."

At p.342, Street C.J. had also said:

"It is laid down by the authorities that the fact
of a conspiracy must be established, prima facie at
least, before the acts and declarations of one can
be used in evidence against the others, but this
would in most cases lead to such insuperable
difficulties that in practice the rule is
disregarded and for the purpose of proving the
conspiracy evidence is admitted of acts done by the
alleged conspirators."

These two passages appear not to recognize that in seeking to prove the participation of an alleged conspirator by attributing his authority to the incriminating acts or declarations of the others, it is sought to use the evidence in a manner different from that in which it may be used to establish the combination as a matter of inference. A similar attitude seems to be taken in Phipson on Evidence, 10th ed. (1963), par.263, at p.124 where the author says that "On charges of conspiracy, the acts and declarations of each conspirator in furtherance of the common object are admissible against the rest; and it is immaterial whether the existence of the conspiracy, or the participation of the defendants be proved first, though either element is nugatory without the other." Such statements fail to recognize the problem.

11. Often the problem will not arise in any practical way because the acts and declarations of the conspirators considered separately will establish both the fact of the combination and the participation of each of them. But that is not always the case. Nor is the problem overcome when it does arise merely by treating the evidence establishing the existence of a combination separately from the evidence of the participation of an individual in the combination. Of course, the case against each alleged conspirator must be established separately and this ultimately requires those two elements to be kept distinct. Sometimes, particularly where the existence of evidence of an individual's participation is crucial, this may dictate the order of proof. As was said in The Queen's Case [1820] EngR 563; (1820) 2 Brod. & B. 284, at p.310 [1820] EngR 563; (129 E.R. 976, at p.986) "on a prosecution for a crime to be proved by conspiracy, general evidence of an existing conspiracy may in the first instance be received, as a preliminary step to that more particular evidence, by which it is to be shewn that the individual Defendants were guilty participators in such conspiracy". But it may not be necessary or possible in many cases to call the evidence in two stages and that, apparently, is what the author of Phipson on Evidence had in mind in the passage which we have cited above.

12. In Reg. v. Finn and Niblock (1985) 1 QdR. 212, at pp 215-216 McPherson J., speaking for the Court of Criminal Appeal in Queensland, referred to the passage from Phipson and said:

"But that means no more than that evidence of the
acts of others may be admitted to prove the
existence and nature of the agreement before proof
is adduced for the purpose of establishing that the
accused was a party to the agreement.... However,
when it comes to proving that a particular accused
was a party to the agreement - that he participated
in the conspiracy - the acts of other persons may
not be relied upon. The accused must be connected
with the conspiracy by evidence admissible against
him according to ordinary principles of the law of
evidence.... Participation by the accused in the
alleged conspiracy can therefore be established
only by evidence of his own acts or admissions and
not by the acts or admissions of others, except to
the extent that they are shown to have been
authorized or adopted by the accused himself.
Until such participation is established, the acts
of others are available only to show the existence
of an agreement and its nature or terms."

As we read that passage, McPherson J. was expressing the view that the participation of an individual in a conspiracy cannot be proved by evidence of things said or done by other conspirators in furtherance of the conspiracy unless that participation is first proved beyond reasonable doubt by other evidence. Such a view is understandable, particularly when it is borne in mind, as it should be, that the other conspirators, whose acts and declarations in the absence of the individual are sought to be used in evidence, may not be available for cross-examination by the individual. It is a view, however, which deprives the evidence of any probative effect, other than with respect to the nature and extent of the conspiracy, by requiring as a prerequisite of its use, proof of the very thing which it is led to prove, namely, that the accused was guilty of conspiracy. The need to cut this Gordian knot has been generally recognized, although there has been no general recognition of the point at which it should be cut.

13. In R. v. Orton (1922) VLR 469, a case of conspiracy, Cussen J. charged the jury that "Each accused is entitled at the outset to have the evidence properly admissible against him considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him" (at p.474). This appears to require proof beyond reasonable doubt of participation before the acts and declarations of others in the absence of the particular accused may be used against him, but in Reg. v. Minuzzo and Williams (1984) VR 417, at p 429, Young C.J. (with whom King J. agreed) doubted whether, upon a consideration of the whole of the charge, Cussen J. intended to convey to the jury that it was only after they had concluded that any alleged conspirator was guilty that they could use the evidence of the acts of the other conspirators against him. In Minuzzo and Williams itself, the Victorian Full Court held that evidence of the acts and declarations of the other accused might be used to prove the participation of an individual accused once there was prima facie evidence from another source of the individual accused's participation in the combination.

14. The term "prima facie grounds" was used by Stephen in Article 4 of his Digest of the Law of Evidence (1876) where he said (at p.6):

"When two or more persons conspire together to
commit any offence or actionable wrong, everything
said, done, or written by any one of them in the
execution or furtherance of their common purpose,
is deemed to be so said, done, or written by every
one, and is a relevant fact as against each of
them .... Evidence of acts relevant under this
article may not be given until the judge is
satisfied that, apart from them, there are prima
facie grounds for believing in the existence of the
conspiracy."

In The Indian Evidence Act 1872, which was drafted by Stephen and upon which his Digest was based, s.10 provides:

"Where there is reasonable ground to believe that
two or more persons have conspired together to
commit an offence or an actionable wrong, anything
said, done, or written by any one of such persons
in reference to their common intention, after the
time when such intention was first entertained by
any one of them, is a relevant fact as against each
of the persons believed to be so conspiring, as
well for the purpose of proving the existence of
the conspiracy as for the purpose of showing that
any such person was a party to it."

See Mirza Akbar v. King-Emperor (1940) 3 All ER 585, at p 591. Whether Stephen drew any distinction in this context between "prima facie grounds" and "reasonable ground to believe", the latter phrase is reflected in the judgment of this Court in Tripodi where at p.7 it said:

"When the case for the prosecution is that in the
commission of the crime a number of men acted in
preconcert, reasonable evidence of the preconcert
must be adduced before evidence of acts or words of
one of the parties in furtherance of the common
purpose which constitutes or forms an element of
the crime becomes admissible against the other or
others, that is to say of course, unless some other
ground for admitting the evidence exists in the
given case."

15. In Tripodi the Court was speaking of the admission in evidence of the acts and declarations of others outside the presence of the accused in proof of larceny rather than conspiracy, but, as we have said, the principle upon which such evidence is admitted extends beyond cases of conspiracy. The significant distinction between conspiracy and other offences for present purposes is that indicated in Tripodi at p.6, namely, that on a charge of conspiracy combination is also an element in the offence and not merely a ground for the admission of the evidence. The question does not, therefore, arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred. Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged.

16. In the United States, varying standards have been applied to the proof of the participation of an alleged individual conspirator which is required to open the way for the use against him of the acts and declarations of others. They include "substantial independent evidence", "a prima facie case" and "proof of a conspiracy by a preponderance of the evidence": see Marcus, Prosecution and Defense of Criminal Conspiracy Cases, (1987), pp.5-60, 5-62. In Canada the requirement is that "a probability is raised that he (the individual accused) was a member of the conspiracy": Reg. v. Carter (1982) 67 CCC (2d) 568, at p 575. In New Zealand, the Court of Appeal, adopting Tripodi, laid down a test of reasonable evidence of common intention, that is to say, of the participation of the individual: Reg. v. Humphries (1982) 1 NZLR 353; Reg. v. Buckton (1985) 2 NZLR 257. It should be added that in the second of these two cases a majority took the view, for which Tripodi is no authority, that reasonable evidence is the equivalent of proof on the balance of probabilities.

17. In our view, the test adopted in Tripodi is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words "reasonable evidence" have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between "reasonable evidence" and "a prima facie case", which in this context we very much doubt, then the words "reasonable evidence" are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator's acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term "reasonable evidence" is desirable.

18. The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance, for the evidence of acts and declarations ought not to be admitted at all for that purpose if no basis can be shown for its admission. But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue.

19. In United States v. Dennis [1950] USCA2 292; (1950) 183 F 2d 201, at p 231, Learned Hand J. expressed the view:

"The law is indeed not wholly clear as to who must
decide whether such a declaration may be used; but
we think that the better doctrine is that the judge
is always to decide, as concededly he generally
must, any issues of fact on which the competence of
evidence depends, and that, if he decides it to be
competent, he is to leave it to the jury to use
like any other evidence, without instructing them
to consider it as proof only after they too have
decided a preliminary issue which alone makes it
competent. Indeed, it is a practical impossibility
for laymen, and for that matter for most judges, to
keep their minds in the isolated compartments that
this requires."

One might add that the difficulty for a jury is exacerbated if the standard of proof upon which they are to decide the preliminary issue differs from the standard of proof upon which they are ultimately to decide the guilt or innocence of the accused. In Carbo v. United States [1963] USCA9 56; (1963) 314 F 2d 718, at p 737 this difficulty was referred to:

"The jury is already concerned with the
evidence-weighing standards involved in proof
beyond a reasonable doubt. To expect them not only
to compartmentalize the evidence, separating that
produced by the declarations from all other, but as
well to apply to the independent evidence the
entirely different evidence-weighing standards
required of a prima facie case, is to expect the
impossible."

In that case the court held that it was for the trial judge alone and not the jury to determine the admissibility of evidence of acts and declarations occurring outside the presence of an alleged conspirator. Thereafter, it was held, it was for the jury to determine whether the whole of the evidence, including the acts and declarations, established guilt beyond reasonable doubt. That appears to be the orthodox approach in the United States: see Marcus, op.cit., p.5-70.

20. In Canada the opposite approach is adopted. This appears from Reg. v. Carter where McIntyre J. delivering the judgment of the Supreme Court said, at pp 575-576:

"In charging the jury on this question, the trial
judge should instruct them to consider whether on
all the evidence they are satisfied beyond a
reasonable doubt that the conspiracy charged in the
indictment existed. If they are not satisfied,
then the accused charged with participation in the
conspiracy must be acquitted. If, however, they
conclude that a conspiracy as alleged did exist,
they must then review the evidence and decide
whether, on the basis of the evidence directly
receivable against the accused, a probability is
raised that he was a member of the conspiracy.
If this conclusion is reached, they then become
entitled to apply the hearsay exception and
consider evidence of the acts and declarations
performed and made by the co-conspirators in
furtherance of the objects of the conspiracy as
evidence against the accused on the issue of his
guilt. This evidence, taken with the other
evidence, may be sufficient to satisfy the jury
beyond a reasonable doubt that the accused was a
member of the conspiracy and that he is accordingly
guilty. They should be told, however, that this
ultimate determination is for them alone and that
the mere fact that they have found sufficient
evidence directly admissible against the accused to
enable them to consider his participation in the
conspiracy probable, and to apply the hearsay
exception, does not make a conviction automatic.
They should be clearly told that it is only after
they have become satisfied beyond a reasonable
doubt on the whole of the evidence on both issues,
that is, the existence of the conspiracy and the
accused's membership in it, that they may convict,
and that it is open to them, if they think it right
or if they are not satisfied, to acquit the
accused, even after reaching their initial
determination of probable membership in the
conspiracy which enabled the application of the
hearsay exception."

We have set out this passage in full because it demonstrates, we think, the difficulty upon that approach in formulating a charge to the jury which could readily be applied, or even understood, by them. It is an approach which has been adopted in some States in Australia - for example, in Victoria in Minuzzo and Williams - and it was adopted by the trial judge in the present case, but experience suggests nothing to allay the fear that it requires the jury to undertake a task which is incapable of explanation in terms which they can comprehend. Indeed, at the risk of repetition it is instructive to set out a passage from the judgment of Young C.J. in Minuzzo and Williams at p.431 which illustrates the complexity which must necessarily be introduced when this approach is adopted in charging a jury:

"An accused person is entitled to have his
case considered upon the evidence admissible
against him. In a conspiracy case such as the
present there are three classes of evidence to be
considered, namely (a) evidence of the acts and
declarations of the accused whose case is being
considered, (b) evidence of the acts and
declarations of co-accused from which the
conclusion that there was a combination might be
drawn, and (c) acts and declarations of
co-conspirators done or made in pursuance of the
combination. Most evidence which falls within
category (b) will also fall within category (c).
Those two categories are not intended to be either
co-extensive or mutually exclusive.

Evidence in category (b) may be used in order
to establish the conspiracy.... Evidence in
category (c), which is sometimes described as
evidence in furtherance of the conspiracy, may only
be used against an accused whose case is being
considered once there is some evidence that that
accused is connected with the conspiracy. But it
is not necessary that the jury should be satisfied
of the guilt of the accused before they can use
evidence of category (c). Satisfaction of guilt of
course requires satisfaction beyond reasonable
doubt. But evidence falling into category (c) can
be used against an accused once prima facie proof
of the accused's connection with the conspiracy has
been given.... The prima facie evidence which is
here referred to is evidence described as directly
admissible against the accused connecting him with
the conspiracy alleged. By evidence directly
admissible against the accused is meant in this
context evidence other than the acts and
declarations of the alleged co-conspirators not in
the presence of the accused. Whether there is
sufficient evidence directly admissible against an
accused connecting him with the conspiracy to make
evidence in category (c) available to be used
against him is a question for the jury."

Consideration of that carefully worded and clearly expressed passage as a whole inevitably leads one to doubt the proposition that the sufficiency of evidence of participation directly admissible against the accused is appropriately a question for the jury. Nothing is more likely to discredit and undermine the institution of trial by jury than a requirement that a trial judge explain to the jury matters of law in terms which are unlikely to be understood or retained by them.

21. In New Zealand, as in the United States, it appears that the question of the sufficiency of the independent evidence of participation of one accused to make evidence of the acts and declarations of other participants admissible against him is treated as a question for the judge alone: Reg. v. Humphries; Reg. v. Buckton. In England, little attention seems to have been given in the cases to the problem and the position is unclear.

22. The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.

23. It may be observed that the matters which we have discussed have little to do with the order in which the evidence may be led. It will often be difficult, if not impossible, to segregate the evidence so as to enable a ruling to be given in advance. In most cases, evidence of the acts and declarations of alleged co-conspirators will be admissible in the form of separate acts to prove the fact of combination. In those circumstances, the trial judge may postpone until all the evidence is in, his ruling whether the proof of the combination sufficiently implicates an individual accused to allow the acts and declarations of the others in his absence to be used against him as proof of his participation. If the trial judge concludes that there is insufficient independent evidence of participation of the individual for this purpose, then it will be necessary for him to instruct the jury upon the limited purpose for which the evidence of the acts and declarations of the others may be used. It may in some cases be desirable for the trial judge to give a preliminary ruling upon the depositions, but it is only when the whole of the evidence is in that a final ruling can be given. It is conceivable that there will be cases, although they are difficult to envisage, where evidence of the acts and declarations of one alleged conspirator in the absence of another is admissible only to prove the participation of that other and in those cases it may be necessary to require the prosecution to take the preliminary step of laying the ground for the admission of the evidence before admitting it at all.

24. It may be argued that there is a danger in not leaving the question of admissibility to the jury in that the jury may see the independent evidence of participation as unconvincing and yet act upon the acts and declarations of others outside the presence of the accused. Any such danger may, however, be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow. A direction of that kind is likely to be far more effective in safeguarding the position of an individual accused than a direction, the evidence having been let in, which a jury could not reasonably be expected to understand and apply. Moreover, any danger of the kind suggested would, in our view, be outweighed by the risk of diverting the jury's attention from the criminal standard of proof in requiring them to apply some lesser standard to determine a preliminary question.

25. In the present case the complaint is, in effect, that the trial judge followed Minuzzo and Williams rather than Finn and Niblock, as indeed he did. But as we have explained, the approach adopted in Finn and Niblock requires the guilt of the individual accused to be established before evidence of the acts and declarations of his co-conspirators can be used against him to prove his participation in the illegal combination. Not only does that approach render the evidence somewhat superfluous, but it is inconsistent with the decision in Tripodi which would allow the evidence in upon a less demanding basis. The trial judge was not, therefore, wrong in principle in preferring Minuzzo and 1 Williams to Finn and Niblock, but he ought to have decided for himself the question whether there was independent evidence of the participation of the accused in the illegal combination sufficient to let in against him evidence of the acts and declarations of the other participants in further proof of that participation. That question ought not to have been left to the jury.

26. There can be no question that there was reasonable independent evidence upon which it could be concluded that the applicant participated in the illegal combination, the subject of the charge against him. Indeed, there was no dispute that the activities engaged in by the applicant brought about the result that the companies concerned could not meet their liability to pay tax. The dispute centred upon the knowledge with which he engaged in those activities, in particular whether he knew that the companies were to be "dumped". It was not suggested before us or before the court below that there were any significant acts or declarations of the other participants in the combination occurring outside the presence of the applicant which would bear upon that issue. There was, as Thomas J. pointed out in the Court of Criminal Appeal, "an abundance of evidence from which the jury could have concluded that the (applicant) must have known what was going on, and from which they were entitled to reject his explanations in relation to each particular transaction". In any event, in the circumstances of this case, which were rather more straightforward than is usual in similar cases, it could hardly be said that the direction complained of operated to the disadvantage of the applicant. The conclusion of the Court of Criminal Appeal that any misdirection occasioned no substantial miscarriage of justice is correct.

27. We would grant special leave and dismiss the appeal.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.