Smith v The Queen [1970] HCA 48

High Court of Australia McTiernan, Menzies, Windeyer, Owen and Walsh JJ. Smith v The Queen [1970] HCA 48

ORDER Application for special leave to appeal refused.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 26 McTiernan J.

I agree with the judgment and reasons of my brother Menzies.

Menzies J.

This is an application for special leave to appeal against a judgment of the Court of Criminal Appeal of Victoria upholding the conviction of the applicant upon a charge of conspiracy tried in the Supreme Court. The relevant count in the presentment charged the applicant with conspiracy with nine other people. Of those presented on this count, four were acquitted and six convicted. There was another count alleging a separate conspiracy against six of the persons charged with the applicant. Of these, four were acquitted and two convicted. The trial took 136 days and the jury had to consider a huge mass of oral and documentary evidence.

The count in the presentment with which we are now concerned was, at the hearing, amended to read as follows: "On divers dates between the 1st day of April 1965 and the 31st day of December 1965" the persons named "conspired together to cheat and defraud the National Bank of Australia Pty. Ltd. into paying money on behalf of or extending credit to the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch by divers fraudulent devices." Of this count the learned trial judge ordered particulars, and the following particulars were filed in the course of the trial: "The conspiracy alleged is (a) one to which the accused Mitchell was a party, (b) one in consequence whereof money was paid by the National Bank through the account known as the Southern Cross Fishing and Water Sports Centre at the Southern Cross Branch of the said Bank, to the accused Mitchell and to companies with which the accused Mitchell was associated."