Ben Aulich's lawyers claim prosecution created charge that 'does not exist'

Lawyers for Ben Aulich have argued his conspiracy charge has been laid incorrectly because the allegations don’t reach higher than accusing him of assisting with an illegal cigarette conspiracy, not actually committing the crime himself.

As a result, they argue there is no charge for the allegations.

Ex-lawyer Mr Aulich, 51, and accountant Michael Anthony Papandrea, 57, have both been charged with conspiracy, while the former has also been charged with recruiting people to engage in criminal activity in the alternative.

The pair allegedly agreed to try to help a person called ‘Alex Torosian’, who was actually an undercover police officer, to launder money from the illegal importation of cigarettes through the purchase of a supermarket.

Mr Aulich, who pleaded not guilty, launched two legal arguments in the ACT Supreme Court on Friday (13 December), including an application to temporarily stay the proceedings while other legal applications take place.

His junior barrister, Vicki Geraghty, argued that the particulars of his alleged crime provided by the prosecution actually accused him of aiding and abetting a conspiracy.

She said by framing the case this way, “the prosecution has created a charge that simply does not exist”.

She said the case involved Mr Aulich allegedly recruiting Mr Papandrea to conspire with himself and Mr Torosian to launder money. He also allegedly encouraged the other two to speak to each other and Mr Papandrea to create business structures.

Ms Geraghty said the alleged involvement of both accused was limited to assisting Mr Torosian, while the undercover officer would have been responsible for the actual commission of the crime.

“Two individuals cannot form an agreement to cause a third party to perform an act beyond their control or outside the scope of their agreement,” she said.

Mr Aulich’s senior barrister, John Purnell SC, said it was alleged the agreement was not an agreement between the conspirators to launder money “but simply to facilitate money laundering”.

He said there was no evidence to show an intention that either defendant would launder money, while Mr Torosian, being an undercover officer, never intended to launder money himself.

However, prosecutor Mark Tedeschi KC argued that the law of conspiracy didn’t distinguish between the role of the planned participants and the intended substantive crime.

He also said it appeared the application for a temporary stay was misconceived, as the defence would have time to make whatever legal applications it wanted to make before a trial could be held, which would be in the second half of 2025 at the earliest.

Chief Justice Lucy McCallum has reserved her decision for 3 February 2025 and has scheduled a discussion on juridical review proceedings for the same date.