Gerakiteys v The Queen [1984] HCA 8

High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Deane JJ. Gerakiteys v The Queen [1984] HCA 8

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.

Cur. adv. vult.

The following written judgments were delivered:—

1984, Feb. 24 Gibbs C.J.

This is an application for special leave to appeal from a judgment of the Court of Criminal Appeal of the Supreme Court of New South 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.