Criminal Conspiracy: Takes One to Tango?

DOI10.1177/000486588201500301
Published date01 September 1982
Date01 September 1982
Subject MatterEditorial
AUST & NZ
JOURNAL
OF
CRIMINOLOGY
(September
1982) 15 (129-130)
EDITORIAL
129
Criminal
Conspiracy:
Takes
One
to Tango?
The
recent
decision of
the
High
Court
of Australia in Ru
Darby
(1982) 40 ALR 594
raises questions of central significance for all concerned
with
the
criminal justice
system. In
that
case,
Darby
had
been
charged
with one Thomas
with
conspiracy to
commit
armed
robbery;
there
were
no
other
persons alleged to have
been
party
to
the
conspiracy. Both
Darby
and Thomas
were
tried
together
in
the
County
Court
of
Victoria
and
convicted. Thomas
appealed
against his conviction to
the
Victorian
Court
of Criminal Appeal on
the
ground that, while
there
was a
strong
case
that
he
conspired
with
Darby
to commit acriminal act,
the
evidence did not establish
what
the
completed
crime
was.
The
Court
of Criminal Appeal
upheld
the
appeal by
Thomas
and
quashed
his conviction.
Darby
then
sought leave to appeal to
the
same
court
against his conviction on
the
ground
that
his conviction for conspiracy with
Thomas could
not
stand
since Thomas
had
been
acquitted of
that
conspiracy.
The
Court
of
Criminal
Appeal accepted
the
argument
and
quashed
Darby's conviction.
The
Crown
then
sought leave to appeal.
The
High
Court
in a four to
one
decision
(Gibbs CJ, Aickin, Wilson and
Brennan
JJ;
Murphy
Jdissenting) allowed
the
Crown's
appea'
md
affirmed Darby's conviction.
Apart from
questions
of previous legal decisions,
the
basic
argument
on
behalf
of
Darby
was
that
there
was a fundamental inconsistency in sustaining aconviction
that
Aconspired
with
B
when
B has
been
declared by acquittal to be
innocent
of
conspiracy
with
A.
The
majority of
the
High Court, while
conceding
the
plausibility
of
the
argument,
rejected
it on
the
ground
that
it
proceeded
"upon
amistaken view
of
the
true
effect of an acquittal".
The
majority agreed with
Lord
Salmon's remarks
in a
House
of Lords decision
Shannon
[197,5]
AC 717 at 772:
An accused is
entitled
to be
acquitted
unless
the
evidence
satisfies the
jury
beyond
reasonable
doubt
that
he is guilty. A
verdict
of not guilty may mean
that
the
jury
is certain that the
accused
is
innocent,
or it may
mean
that,
although
the
evidence
arouses
considerable
suspicion, it is insufficient to convince
the
jury
of
the
accused's guilt
beyond
reasonable doubt.
The
verdict
of not guilty is
consistent
with
the
jury
having
taken
either
view.
The
only effect of an acquittal, in law, is that
the
accused can
never
again he
brought
before
acriminal
court
and
tried
for the same offence. So far as
the
Crown
is
concerned,
the
accused is
deemed,
in law, to be
innocent.
His acquittal cannot, however, affect anyone
but
himself
and
indeed
would
not be admissible in
evidence
on
behalf
of or against
anyone
else. Anyone
acquitted
of a criminal conspiracy
may still be
sued
in
damages
for
the
conspiracy of which he has
been
acquitted
at his trial.
An acquittal on this view is
reduced
to a
mere
injunctive result. Acquittal says
nothing
of guilt or innocence; it simply stays
the
Crown's hand.
The
dramatic
and
symbolic
nature
of
the
public trial is
irrelevant
to this exposition.
The
presumption
of innocence
and
the
golden
threat
of Wool1nington [1935] AC 462 have
been
devalued.
Murphy
J, in a vigorous dissent,
rejected
the
majority view.
For
him, in a case
where
A
and
Bonly had
been
charged with conspiracy,
the
conviction of A was
logically
inconsistent
with
the
acquittal of B. More fundamentally,
the
view
that
the
apparent
inconsistency was easily explained away because an acquittal
did
not really
stand
for a finding of innocence was
seen
by
Murphy
J as a most
dangerous
erosion

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