High Court of Australia
High Court of Australia Gibbs C.J. Murphy, Aickin, Wilson and Brennan JJ. R v Darby [1982] HCA 32
ORDER Application for special leave to appeal granted. Appeal allowed. Judgment of the Full Court of the Supreme Court of Victoria set aside. In lieu thereof order that the conviction and sentence of the County Court of Victoria be affirmed. Matter to be remitted to the Supreme Court of Victoria to make any such orders as may be appropriate.
Cur. adv. vult.
The following written judgments were delivered:—
1982, May 18 Gibbs C.J., Aickin, Wilson and Brennan JJ.
The respondent John Edward Darby and one Leonard Clifford Thomas were tried together in the County Court in Victoria on a charge that at Melbourne on 17 February 1978 they unlawfully conspired together to rob, whilst having with them a firearm, one Vladoslav Gregurek of certain money. The trial proceeded for ten days, and on 12 July 1980 the jury returned a verdict of guilty against each of the accused persons. They were each sentenced to a term of imprisonment, and the respondent was also fined the sum of $2,000.
Thereafter Thomas applied to the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal for leave to appeal against his conviction. The application was successful. The Court gave leave, allowed the appeal, quashed the conviction and ordered that a verdict and judgment of acquittal be entered. The reason for his success lay in the Court's conclusion that while the evidence which was admissible against him established "an overwhelming case" to go to the jury that he conspired with the respondent to commit a criminal act, it fell short of establishing what that crime was.
The case which the Crown presented against the respondent was stronger than its case against Thomas. There was evidence of admissions made by him to police officers which if accepted by the jury established that the object of the conspiracy was armed robbery. He did not seek to challenge his conviction until Thomas's conviction was quashed. Then, on 17 October 1980, he applied for leave to appeal on the sole ground that
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