Agius v The Queen

[2013] HCATrans 92

[2013] HCATrans 92

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S28 of 2013

B e t w e e n -

ROBERT AGIUS

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 APRIL 2013, AT 10.15 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR P.R. COADY, for the appellant.  (instructed by Eddy Neumann Lawyers)

MR P.W. NEIL, SC:   May it please your Honours, I appear with my learned friend, MS S.M. McNAUGHTON, SC, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Thank you.  Mr Barker, I just mention before you begin that the form of your notice of appeal or the relief you seek of the quashing of the conviction of count 2, the form of the notice of appeal is an appeal from the judgment of the Court of Criminal Appeal given on 24 May 2011, that is on the interlocutory question.

MR BARKER:   Yes.

FRENCH CJ:   That of course has, as it were, been overtaken by the conviction that occurred on I think it was 31 July 2012, and the Court is of the view that you may be advantaged to this extent by reformulating your notice of appeal so that there is an appeal against conviction, albeit on the same grounds, to avoid any suggestion that the appeal is incompetent.

MR BARKER:   Yes, thank you for that, your Honour.

FRENCH CJ:   It will require you to file an amended notice of appeal, but the grounds do not need to change.  It does not go to the merits of the grounds; it is just the form of the appeal.

MR BARKER:   So may we do that this morning?

FRENCH CJ:   Yes.

MR BARKER:   Your Honours, the grounds of appeal as they now are are page 125 of the appeal book.  The statement of issues is page 1 of our submissions and the indictment is at appeal book 2 – sorry, the particulars are in the appeal book at page 5. 

Your Honours will see from the indictment that count 1 alleges a conspiracy between January 1997 and 23 May 2001 – which we take it to mean is when the Crown says it finished – and the contentious count is count 2 which is said to have started on 24 May 2001 until 10 April 2008 which was amended to 2006.  So, the debate – well, sorry, before I go to that could I just take you to the particulars?  On its face, the indictment makes conventional sense until we go to the particulars and particular 1 says:

The conspiracy alleged was an agreement between about 1 January 1997 and about 10 April 2008 –

and particular 6 tells us that:

The agreement was formed in Sydney . . . between about 1 January 1997 and 1 May 1997.

Now, the debate is whether count 2 can survive, alleging as it does a conspiracy said to have been laid under the Criminal Code without proof or even allegation of such a conspiracy, which did not exist.  Can it be saved by recourse to the count 1 conspiracy?  Well, the problem – there are a number of problems but the ‑ ‑ ‑

FRENCH CJ:   Is it right that your submission at its core is that absent an agreement in the period covered by the second count, the second count is fatally flawed?

MR BARKER:   Yes, your Honour.  Your Honours, I am well aware that five‑sevenths of you sat on the R v LK and RK and examined the Code in some considerable detail.  So, with respect to the other two, I shall try not to take up too much time debating matters about which your Honours are all familiar.  But, firstly we say that conspiracy under the Code requires a close examination of section 134.4(5), involving as it does some statutory requirements.  I mean by that the matters referred to in subsection (9), all of which refer to things to be done or done pursuant to the agreement in section 135.4(5).  So that the section quite obviously is concerned with an agreement entered into, section 135.4(5), during the currency of the Criminal Code.  As to the matters referred to in subsection (9), could I briefly take you to R v LK and RK 241 CLR 177 at paragraph 93.

FRENCH CJ:   Page?

MR BARKER:   Sorry, page 218, where the Court is commenting upon the judgment of Chief Justice Spigelman.  In paragraph 93:

His Honour characterised s 11.5(2), (3), (4) and (5) as “particular requirements of a finding of guilt”‑

Those numbers, of course, were repeated in section 135.4(9).  So, the Court approved of Justice Spigelman’s characterisation of them as being particular requirements of a finding of guilt.  As I said earlier, most of you have already thoroughly examined conspiracy under the Code.  I would like to take you back to it, for two reasons.  Firstly, it explains clearly how conspiracy under the Code requires an active entry into an agreement. 

That, as your Honours will be aware, is one of the issues here, whether a pre‑existing conspiracy can somehow assume validity without active entry.  Whereas, this Court has said in LK and RK and the Act, we say, says that there must be an active entering into the agreement, not simply the fact of an agreement, or participation in it, because of the way the Code is drafted. The principal issues, here, can be best approached, I submit, by going to that case. Firstly, to the judgment of your Honour, the Chief Justice, at paragraph 78, page 213, paragraph 3:

When s 11.5(2) is applied to the preceding, that person commits a conspiracy if he or she:  (a) (intentionally) enters an agreement with one or more others to commit an offence –

You are there dealing with, of course, the Criminal Code.  Then if I could take you to the judgment of the majority, or the plurality as it is now called, at paragraph 117, page 228:

The offence of conspiracy under the Code is confined to agreements that an offence be committed.  A person who conspires with another to commit an offence is guilty of conspiring to commit that offence.  It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence –

Then if we go to paragraph 141 on page 234:

The Court of Criminal Appeal’s conclusion that the law creating the offence of conspiracy is s 11.5(1) is correct.

Of course, we are dealing with 135.4 but they are in identical terms and I do not think that is an issue.  The fault element is a single, physical element of conduct and halfway down that passage on page 235:

In charging a jury as to the meaning of “conspiring” with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons –

So we submit that what follows from that and from the scheme of the Act is that what is required to bring a person within the conspiracy section 135.4 is an active joining, an active entering, not simply participation in some pre‑existing agreement.  If we could then go to Justice Simpson’s judgment at appeal book 30, we say that this is where her Honour fell into error.  At page 29, paragraph 34, in responding to a submission at paragraph 33:

I am satisfied that the submissions are based upon a fundamental misconception.  That misconception is that the offence of conspiracy depends upon the formation of, or entry into, an agreement, as distinct from the existence of, or participation in, such an agreement.

So her Honour has quite succinctly stated the battlelines in this case.  She said over the page, paragraph 35:

What the offence of conspiracy depends upon is the existence of, or participation in, an agreement, and not the precise timing of its formation.

Then if one goes to the respondent’s submissions, the respondent’s case can be distilled at pages 5 to 6, paragraphs 14 to 17.  In paragraph 14 on page 5, she says near the end of the passage:

It follows, in the Crown’s submission –

and this appears to have been approved by her Honour –

that an antecedent agreement in place and being implemented at the time the Code offence commenced, which has the characteristics of moral culpability required by the Code offence i.e. those set out in s.135.4(5) is necessarily a conspiracy within the meaning of s.135.4(5)(a) of the Code.

Now, she is talking about a conspiracy charged under the Crimes Act, of course now repealed.  Then she says, over the page at page 6, paragraph 16, about the middle of that passage:

The fact that the Code in s.135.4(12) provides a defence of withdrawal from the agreement on the conditions stated therein points in the opposite direction, namely that participation, rather than entry, is the actus reus or physical element.

Now, in my submission, that simply cannot sit with what this Court said in LK and what is said in the Code itself.  They say, well, participation not entry.  The problem with that is that this Court sees things in reverse.  That is, it is entry and not participation.  The provisions of subsection (9) all relate to an agreement entered into in subsection (10), not to an earlier agreement entered into under the Crimes Act. 

As the Court explained in R v LK, there are various modifications to the common law of conspiracy, some more significant than others, but which, in conjunction with the common law, have created a code conspiracy statutory regime, largely as recommended by the Model Criminal Code Officers’ Committee.  Your Honour the Chief Justice said in LK, for example, at paragraph 56, page 205 that:

Having regard to the assumption of the Gibbs Committee that the word “conspires” in s 86 of the Crimes Act imported the common law concept and the use of that word, without definition, in s 11.5 of the Code, it may be inferred that the drafters of the Code intended to retain the common law concept of conspiracy.  The purpose of s 11.5(2) as explained by the report of the MCCOC was to operate on the common law by “more clearly” distinguishing the elements of agreement and intention to commit the offence the subject of the conspiracy.

Your Honour, in paragraph 57, over the page at page 206, saw it:

as a screening device to exclude from “the attention of the criminal law” conspiracies not manifested by any implementing conduct.

The majority at paragraph 93, I have already taken you to; that is, the “particular requirements” seen as “requirements of a finding of guilt”, as found by Chief Justice Spigelman.  At page 117, the majority saw section 11.5(2) ‑ ‑ ‑

FRENCH CJ:   It is paragraph 117, is it not?

MR BARKER:   Sorry, paragraph 117, page 228, about halfway down the page, 11.5(2)(b): 

As these reasons will show, this provision informs the meaning of “conspires” in sub-s (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement.  It also speaks to proof of the accused’s intention.

The majority at paragraph 132 to 134 commencing at page 232 made it clear that agreement in 11.5(2)(a) or 134.5(9) is an reference “to the agreement that is criminalised in s 11.5(1)”.  In paragraph 133, the Court said that:

Section 11.5(2)(b) looks to the time at which the agreement was entered, making clear that for a person to “conspire” . . . it is necessary that he or she and at least one other party to the agreement “must have intended” that an offence be committed pursuant to it.

They go on to talk about the Gibbs Committee Report.

BELL J:   That, I think, is in the context of making clear that a party to the conspiracy need have intended to commit an offence in a context in which an alleged party may be an agent provocateur.  It is that issue that that particular provision is directed to.

MR BARKER:   Yes, your Honour.

BELL J:   Can I just take this up with you?  If you look at LK, it was directed in part to a consideration of what function was being served by the matters set out in subparagraphs (a) to (c) of subsection (2) of section 11.5 of the Code. In that connection, it rejected the idea that those stated elements of the offence, for the purposes of Part 2.2 of the Code. But what the Court went on to say was that – this is at 234, paragraph 141 – the Court of Criminal Appeal was right to conclude that the law creating the offence is found in subsection (1), and the Court there described it as:

The offence has a single physical element of conduct: conspiring with another person to commit a non‑trivial offence.

The Court accepted in LK that “conspiring” was to be understood in a background of the common law and the well‑understood meaning of that expression. In that context, what is wrong with the analysis that the physical element of conduct is defined to include a state of affairs and that a person may intentionally participate in a state of affairs by continuing to participate in an agreement that may have been formed earlier, but that from day to day involves intentional participation in the carrying out of that agreement? What is wrong with that, and what is inconsistent with what is said by the majority at paragraph 141?

MR BARKER:   Well, firstly, the indictment does not take you there.  The indictment alleges an agreement – this is count 2 – under the Code.  The problem with the state of affairs of course, I submit, remains.  That is, how can one engage in conduct which is a state of affairs; state of affairs being an entirely passive circumstance, and yet it has found its way into the Code.  In section 4.1:

A physical element of an offence may be:

(a)       conduct

. . . 

conduct means an act, an omission to perform an act or a state of affairs.

engage in conduct means:

(a)       to do an act; or

(b)       omit to perform an act.

Now, in my submission, the Code, the sections which we have discussed, at least all those sections dealing with conspiracy, all assume some activity on the part of the person charged, that is, the entering into an agreement.  Whilst one can understand what engaging in conduct means – either doing an act or omitting to perform an act – one has some difficulty, I submit, with fitting a state of affairs into that equation because firstly it is ‑ ‑ ‑

FRENCH CJ:   It has got to be given some meaning, has it not?

MR BARKER:   Well, it has, unless the Court finds it cannot.

FRENCH CJ:   What about being in possession?

MR BARKER:   Well, that is precisely what Justice Brennan said is a state of affairs, not the activity which led to the state of affairs.  I mean, your Honour said this, and I say this with respect, in LK; that the notion of engaging in a state of affairs remains unexplained.

FRENCH CJ:   Which is to say that the Code does not define that concept.

MR BARKER:   It does not.  The nearest we get to it is in one of the pre‑Code reports where a state of affairs such as being a vagrant was discussed.  Wherever you go and look for a definition of it, it continually comes down to ordinary English words meaning a passive state of affairs and it is ‑ ‑ ‑

FRENCH CJ:   Or continuing to be, or being a party to an agreement?

MR BARKER:   Well, that would involve the joining, the entering ‑ ‑ ‑

FRENCH CJ:   Let us assume you have joined, being a party to an agreement would constitute, would it not, conduct – or is capable of constituting conduct being a state of affairs, however broad that concept goes, and we need not explore the outer boundaries of it?

MR BARKER:   It really does not work here, your Honour.  It is an oddity in the drafting.

FRENCH CJ:   Well, it is fairly central to your proposition that conduct being a state of affairs cannot pick up being a continuing party to an agreement.

MR BARKER:   Yes, your Honour.

HAYNE J:   What underpins that proposition is that formation of the agreement can be identified as being relevantly legally completed at a particular time.

MR BARKER:   Yes.

HAYNE J:   Why should one impose notions which ultimately find their origin in things like the law of contract, where notions of formation of agreement have particular legal consequences attributed?  Why should one build in to this area where agreement may be agreement, understanding, going along with a very informal state of affairs, why should one build in these concepts at all?

MR BARKER:   Precisely. 

HAYNE J:   I thought the question was intended not to assist you, Mr Barker, but ‑ ‑ ‑

MR BARKER:   I “missed the knife in the napkin”, as Justice Kirby would have said.

HAYNE J:   Exactly.

MR BARKER:   But what I mean was this; that the problem with that, your Honour, is the indictment itself where count 1, which we are told now is part of the overall agreement, tells us that the conspiracy finished on 23 May 2001.  Now, having elected to finish it then, how it comes to be revitalised ‑ ‑ ‑

FRENCH CJ:   Sorry, why does it say it is finished then?

MR BARKER:   Between 1 January 1997 and 23 May 2001 ‑ ‑ ‑

FRENCH CJ:   If it is a continuing offence, the fact that they charge you between those dates does not imply, does it, that the offence is necessarily completed at that point?  We know that the date 23 May 2001 has to do with the timing of the amendment.

MR BARKER:   Well, the Crown says in the particulars that the agreement was formed between January 1997 and May 1997, and surely 23 May 2001 is intended to denote when the conspiracy finished.

KEANE J:   Why not to denote simply when it ceased to be unlawful by virtue of section 29D and section 86 of the Crimes Act?

MR BARKER:   Well, perhaps it could but that runs counter to the Crown’s argument that this agreement endured for all those years.  It is very difficult to know exactly what is alleged when you consider the conflict between the indictment and the particulars.  I do not know whether that goes anywhere near to answering your Honour’s question, Justice Bell, but ‑ ‑ ‑

KEANE J:   Mr Barker, is it not an ordinary use of – a perfectly ordinary use of language to describe the situation that attains between formations and withdrawal as a state of affairs in which the parties to the agreement continue to adhere to it?  Is that not a perfectly ordinary use of language?

MR BARKER:   They would then be conspiring.

KEANE J:   Quite.

MR BARKER:   But that involves an activity.  Here, there is no activity alleged.  There is no entry alleged.  

KEANE J:   No, there is a state of affairs.

MR BARKER:   There is simply a state of affairs.  Well, that is not enough for the purposes of the Code, we submit, because the Code requires some activity, that is, the entering into the agreement.

KIEFEL J:   But they are maintaining the conspiracy, that is all they have to do, do they not?  They are keeping it alive for the purpose of unlawful activity.

KEANE J:   They are adhering to the agreement as opposed to withdrawing from it.

MR BARKER:   That could be, I suppose, as a matter of circumstance.  It is very difficult to spell that out from the Code.  I mean, these sections I have been referring you to all point to the necessity for entry, entry into the agreement.  This is where, I submit, the prosecution has run off the rails.

GAGELER J:   But, Mr Barker, that submission really focuses on the language of section 135.4(9)(a) of the Code, and perhaps exclusively on that language.  That paragraph is cast in the past tense. 

the person must have entered into an agreement with one or more other persons –

You appear to be reading it in the present tense. 

MR BARKER:   Well, firstly, you have the conspiracy according to subsection (5) with a single physical element, that is, conspiring with another person.  From that point, if you go to subsection (9), you have (a), (b) and (c) all dealing with “the agreement” entered into in subsection (5).  This is what Chief Justice Spigelman talked about as being matters – I forget the precise words, I took you to them earlier – necessary to found guilt. 

The point we make here, your Honours – or trying to make – is that the general provisions, subsection (9) of section 135.4, can only refer to the agreement, the subject of subsection (5).  So it is that the “overt act” referred to subsection (12) can only refer to the agreement the subject of subsection (5).  So it is that in subparagraph (10) the impossibility concept is removed, and in subsection (12) a person may withdraw.

HAYNE J:   How does your argument accommodate differing parties coming and going from the conspiracy?  Does your argument entail that with each change of parties there is a new conspiracy?

MR BARKER:   No.  We are talking about, I take it, the conspiracy entered into during the currency of the Code and not before it.

HAYNE J:   Leave aside whether the initial agreement between (a) and (b) – or let us take the case of it – an initial agreement made between (a) and (b) after the Code comes into force.  Let it be assumed (c) joins the agreement at one point, (d) joins at another point, and still further down the track (b) leaves the arrangement.  Is there a single conspiracy or is there a series of conspiracies, according to the argument you are advancing?

MR BARKER:   Well, one would have to know the circumstances, but it could be either.

HAYNE J:   Because what is alleged in paragraph 8 of the particulars here seemed to be that other people later joined the conspiracy at dates variously specified or indicated?  That is, the particulars seem to convey the idea – singular conspiracy formed originally at date X.

MR BARKER:   Yes.

HAYNE J:   People come, nobody has acknowledged ever to have gone, but it is one conspiracy throughout.

MR BARKER:   I understand that is the allegation.

HAYNE J:   Yes, and you say that cannot be laid under the Code?

MR BARKER:   No.  It cannot be laid under the Code in respect of conduct under the Crimes Act.  The problem here is that, firstly, we are told there are two conspiracies and then we are told there is only one.  The Crown have put these hypotheses in their submissions about people joining and leaving.  We do not argue that that cannot happen to a Code conspiracy.  It could not happen to a Crimes Act conspiracy.

FRENCH CJ:   Maybe there is multiple characterisation possible.  You are a late joiner of the conspiracy.  Your joinder may constitute the entry of an agreement for the purposes of subsection (9)(a), which is a necessary condition of guilt but is distinct from, if you like, the agreement that constitutes the conspiracy.  You would say to the contrary.

MR BARKER:   Yes.  I have got to be careful about that knife.

FRENCH CJ:   I do not have any knives, only blunt instruments.

BELL J:   Given that no formality need attend the formation of the agreement, and that frequently the existence of the agreement is to be inferred from what it is that the conspirators do, when one looks at the second count in the indictment, why is it not sufficient to say on and from a date after 24 May 2001, the accused, by participating in activities that were a logical continuance of those that he had agreed in 1997 to engage in, nonetheless there is a notion of agreement by one’s continuing participation.  You seem to be driving this towards a notion of a formal single agreement.

MR BARKER:   Your Honour, that is what the Crown now alleges, a single agreement.  What we say is that his charge under both the Crimes Act and the Code ‑ ‑ ‑

BELL J:   When the Crown rely on a single agreement, what the Crown are identifying in the particulars are matters upon which it is alleged the conspirators agreed back in 1997, but as long as the agreement continues and they participate in it, why, when it ceases to be lawful under the Crimes Act, does the fact of intentional participation in what it no longer needs to be explained is the 1997 agreement – by which I mean they do not need to, as it were, make explicit the understanding that may have been made explicit in 1997 but there is an intentional act of participation in the conduct that is in furtherance of it, surely?

MR BARKER:   It is speaking of conduct in furtherance of the Crimes Act conspiracy, whereas we are charged with conspiring under the Code in count 2.

BELL J:   But that carries with it a notion that you have a single agreement that in some way has terminated.
MR BARKER:   Well, we do the best we can with the wording of the indictment, which quite clearly is intended to convey there are two conspiracies.

CRENNAN J:   What is the answer to Justice Keane’s point which, as I understood it, was that the first count is just reflecting that the conduct, the single conspiracy, is no longer lawful under that legislation and therefore count 2 is directed to the same conspiracy, unlawful now under the Code from the relevant date?  So it is the one conspiracy, but the two counts just reflect the change in the legislation, making it unlawful.

MR BARKER:   Your Honour, that would give the Code retrospectivity, which we say it does not have. The Crimes Act has come and gone, the Code is current ‑ ‑ ‑

KEANE J:   And your client is still a conspirator.

MR BARKER:   Well, I accept that for the purposes of argument.

CRENNAN J:   In the sense of adhering to the same agreement ‑ ‑ ‑

MR BARKER:   Well, it is not the same agreement because it is brought under a different statutory regime.  This was the purpose of taking your Honours to those various matters referred to in LK which serve to define conspiracy under the Code as being subject to the Code’s special provisions.  Certainly it embraced the common law as modified, but it is surely wrong in principle to charge the appellant under the Criminal Code in respect of conduct seven or eight years before the Code was enacted. 

This gets onto our retrospectivity argument which your Honours already have details about.  But if the Crown had wanted to avoid all this, we say, why not proceed under count 1, the criminal component of which would continue after the agreement was finished because of the transitional provisions in the legislation which is before you?  Your Honours, I suppose it all comes down to this:  the DPP says the agreement formed by 1 May 1997, contrary to the Crimes Act, continued after 24 May 2001, contrary to the Code, but the indictment says it finished on 23 May 2001.

FRENCH CJ:   But you say it would have been open to the Crown to charge your client with conspiracy between 1 January 1997 and 10 April 2008 pursuant to 86(1) and 29D of the Crimes Act by operation of the transitional provisions?

MR BARKER:   Yes.

FRENCH CJ:   So one count covering that whole period?
MR BARKER:   If it derived from the same conduct, yes.

HAYNE J:   Are you able to explain to me how that transitional provision would have that effect?

MR BARKER:  Yes, it is in our submissions. Page 8, paragraph 28, we have recounted the transitional material in the “Criminal CodeAmendment (Theft, Fraud, Bribery and Related Offences) Act 2000”:

(1)      Despite the amendment –

I think your Honours do have this legislation –

or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

(a)an offence committed before the commencement of this item; or

(b)proceedings for an offence alleged to have been committed before the commencement of this item; or

(c)any matter connected with, or arising out of, such proceedings;

FRENCH CJ:   This item commenced when, 24 May 2001?

MR BARKER:   Yes, 24 May 2001.  That is at page 13, where we have given you a summary of the legislation.

FRENCH CJ:   Well then, paragraph 29 of your submission says that the item:

does not extend . . . to conduct which takes place after 24 May 2001 –

MR BARKER:   Yes, but preserves their application to conduct which took place before their repeal.  So the criminality in the earlier period, if it is subject to proceedings, would continue.  But all paragraph 29 is saying is that the amendment did not deprive conduct before the amendment of being justiciable, and that is again at paragraph 30.

BELL J:   It is not entirely clear as between 29 and 30 that there is not some conflict.  Just to be quite clear about it, you are saying on your construction of the transitional provision in section 418 of the amending Act, it was open to charge the conspiracy from the date the Crown alleged it was formed, continuing up until 2006, and to lead evidence of Acts in the period from May 2001 to 2006 as Acts done in furtherance of the one conspiracy that had been ‑ ‑ ‑

MR BARKER:   Under the Crimes Act, yes.

KEANE J:   So your client would fall to be sentenced on the footing that his criminality, the criminality involved in his offending, is criminality that extended to October 2006?

MR BARKER:   I am sorry, your Honour?

KEANE J:   Well, I am just trying to work out what the injustice that you are concerned about is?  It would seem to me that in practical terms the purpose of this appeal might have been to ensure that your client was sentenced on the footing that the criminality involved in his offence was criminality that ceased in May 2001.  But from what you are saying, I take it that you accept, am I right, that the criminality for which your client should be sentenced was the criminality involved in being a conspirator to defraud the Commonwealth, up until October 2006?

MR BARKER:   Well, up until 23 May 2001.

KEANE J:   But then I do not – I have to confess, I cannot quite understand your point about the transitional provisions then.  Your point must be, must it not, that the transitional provisions do not operate to make your client criminally responsible for any offence against the Crimes Act after May 2001?  And, if you are successful in this appeal, you would say that your client falls to be sentenced on the basis that his only criminal conduct ceased – the only criminal conduct of which he has been convicted ceased in May 2001.

MR BARKER:   Yes.  Yes, your Honour.

BELL J:   So, just to be very clear, Mr Barker, in paragraph 30 of your written submissions, you are not suggesting that it would have been open to the Crown to prove steps taken in furtherance of the conspiracy up to 2006.  That is, between May 2001 and 2006. 

MR BARKER:   In respect to the indictment as now drawn.

BELL J:   I understood your contention was, it was open to the Crown to charge a single conspiracy beginning in 1997 and, consistently, with the transitional provisions, to have led evidence of acts done in furtherance of that conspiracy after the repeal of the Crimes Act and the introduction of the Code provisions.  That, I thought, might be implicit in paragraph 30.

MR BARKER:   I am sorry, yes.

BELL J:   Is that so?

MR BARKER:   Yes.

BELL J:   Well, how does that fit with your submission that it would not have been open to the sentencing judge to sentence in relation to any criminal conduct after May 2001?

MR BARKER:   We do not quarrel with the notion that he could be charged in respect of criminal conduct before 24 May 2001.  At that point, the first conspiracy – if I may call it that – finishes, the Code starts and he finds himself charged under the Code.  There is a serious problem, we say, of retrospectivity.  I think the foundation of our argument was that count 2 cannot survive without an agreement entered into on or after 24 May 2001.

KIEFEL J:   Your argument on retrospectivity, I take from paragraphs 39 to 42 of the written submissions, is simply that there are not clear words in the later amendments to give it retrospectivity?

MR BARKER:   Yes, your Honour.

KIEFEL J:   Justice Gageler put to you that section 135.4(9)(a) does refer to the past tense.  It refers to a person “must have entered into an agreement”.  It does contemplate an agreement in the past, does it not?

MR BARKER:   This was an issue argued before Justice Simpson and we have referred to it in our written submissions.

KIEFEL J:   And if you read that conformably with section 135.4(5)(a), a person could be conspiring with another in the present tense to dishonestly cause a loss prospectively, but nevertheless, in accordance with subsection (9), be doing so in accordance with an agreement entered into in the past.

MR BARKER:   Yes, your Honour.  The problem with that is that the agreement must be an agreement entered into under subsection (5).

KIEFEL J:   No.  A person is guilty of an offence if they are presently conspiring with another to dishonestly cause a loss, but then when you go to (9), that can be the case under (9)(a), so long as the person has entered into an agreement in the past which informs their current position of maintaining a conspiracy and to put it into action.  The two sit perfectly well together and have that slight retrospective effect that (9)(a) permits, and yet (5) speaks in the present tense.

MR BARKER:   Well, it would involve, would it not, giving retrospectivity to (9)(b) and (c) because they have to relate to the agreement, the agreement being subsection (5) and (9)(a).

KIEFEL J:   But they can speak in the present tense.  That means at the time that they can still speak in the present tense, can they not?

MR BARKER:   Well, your Honour, they ‑ ‑ ‑

KIEFEL J:   Paragraph (c) is the one that you would fasten onto?

MR BARKER:   Sorry?

KIEFEL J:   Paragraph (c) would be the one that you would fasten onto.  If you are looking for the “overt act”, you would work back from that point.

MR BARKER:   Yes, “pursuant to the agreement” or “an agreement”, in my submission, all mean the same.  That is, the agreement criminalised by subsection (5), and that was the subject of considerable discussion by your Honours in R v LK.

Your Honours, the question of retrospectivity is dealt with in the grounds of appeal, ground 2(c) at appeal book 126.  It is issue 2(c) in our submissions, page 1.  What we say, and I suppose I am only repeating what is in the submissions ‑ ‑ ‑

KIEFEL J:   It is a curious aspect of your argument on retrospectivity that you are not talking about legislation which has the effect of rendering unlawful something which was previously lawful. 

MR BARKER:   No, but it is not often so restricted when we are dealing with a penal statute.  We are talking about the quantum of conduct which would surely be a relevant matter to consider when considering the question of retrospectivity.

FRENCH CJ:   It criminalises your ongoing participation in a conspiracy, that is, the implementation of a prior agreement and makes entry into the prior agreement a necessary condition of the liability of subsection (9)(a).  So, how does it operate retrospectively?

MR BARKER:   I am sorry, your Honour lost me.

FRENCH CJ:   How precisely does the section operate retrospectively – the Crown’s view of it?

MR BARKER:   You are talking about subsection (9)?

FRENCH CJ:   As you say, the effect of the decision of the Court of Criminal Appeal was that 135.4(5) applies retrospectively.  Your client on count 2 is charged with, as it were, participation in a continuing offence.  A necessary condition of his criminality is antecedent entry into an agreement.  That is what 135.4(9)(a) requires.  Having regard to that statutory structure, how does the approach taken in the Court of Criminal Appeal involve a retrospective application of the legislation?

MR BARKER:   Because the offence charged would go back to 1997.  We say for count 2 to survive there must be an agreement.

FRENCH CJ:   That is the first argument.

MR BARKER:   Yes, and that agreement necessarily would have to be in respect of issues which arose before 24 May 2001.  If we get to the stage where it is apparent that an agreement is necessary, then it runs into the hurdle, we say, of retrospectivity.  Your Honours, the Crown’s argument in respect of the whole singular…..conspiracy is that it is simply a continuum of the conspiracy entered into in 1997, and they call in aid cases like Doot and Simmonds. 

We do not quarrel, as we say in our submissions, with the ordinary concept that conspiracies continue.  But in this case, we are not dealing with only the common law.  We are dealing with the common law as modified and affected by those matters which I took your Honours to earlier.  So one should be very slow, I submit, with respect, to call in aid a decision of the House of Lords in 1973 based entirely on the common law with none of the statutory refinements under which the Code operates.

Your Honours, as to the state of affairs, I do not think I can add anything to what we have said in writing.  In our submissions at pages 11 to 12, and our reply at page 5, we put our argument that there is a single physical element.  It requires an entry.  You cannot conspire in a passive way and, in my submission, as we said earlier, it is conceptually incoherent to talk about engaging in a state of affairs for the purpose of entering into a

conspiracy as defined by section 135.4.  Otherwise, your Honours, I am content to rely on the submissions already given to you.

FRENCH CJ:   Thank you, Mr Barker.  Yes, Mr Neil.

MR NEIL:   May it please your Honours.  Your Honours have our principal submissions which were filed on 12 April 2013 and our short summary provided this morning.  Just to deal with a couple of points that have arisen during oral submissions, my learned friend, Mr Barker, QC, took you to this but it is quite plain in terms of the particulars in the appeal book at page 5, paragraph 1:

The conspiracy alleged was an agreement between about 1 January 1997 and about 10 April 2008 to defraud the Commissioner of Taxation of tax revenue –

et cetera.  The only change that was made subsequently was to reduce the period to October 2006 for the reason we put in our written outline.  We accepted that because at that date the office of the Burwood accountants was raided by the Australian Federal Police and many materials that were there were seized, that brought the conspiracy to an end in one of the ways discussed by Lord Pearson in Doot.  So we brought the period back, but for the purposes of this case it matters not.

The explanation for the terms of the charges, and they are set out at page 2 of the appeal book, we would submit, appears reasonably plainly by glancing at those short charges.  Firstly in count 1, the appellant and others were charged with that they did conspire with each other and Mr Daniel, and, by way of particulars, the specific sections of the Crimes Act are identified.  That is said to continue to 23 May 2001 and, of course, we know that at the close of that day the Crimes Act offence came to an end. 

Count 2, in very similar slightly different wording, simply says that between about 24 May 2001 the next day – and at this point April 2008 but later brought back to 2006 – the accused and others did conspire with each other and Mr Daniel essentially to defraud the Tax Commissioner of revenue and, again, the identifiers, by way of particulars of the provision of the Code, were given.

If I might just briefly submit upon the transitional provisions, and we address these in our written outline, but in summary, Justice Simpson ruled that the effect of the transitional provisions was not that now advanced by the appellant to your Honours.  That proposition was not put to Justice Simpson or to the Court of Criminal Appeal, for understandable reasons no doubt.

In the Court of Criminal Appeal, that court was unanimously of the view that Justice Simpson’s interpretation of item 418, the relevant transitional provision, which would have applied from 24 May 2001 was correct, and that was in the reasons of Justice Johnson.  Now, we have not sought to cavil with that.  There was a problem recognised beforehand about the terms of the transitional provisions which caused the Crown for good or ill to frame the charges as set out in the copy indictment at page 2 of the appeal book.  Without going to the technical detail of it, but we have submitted formerly that both of the courts below were correct in their interpretation of item 418 and we set that out in our submissions filed on 12 April at page 9 at the bottom of the page under the heading “Retrospectivity and legislative history” paragraph 25 and thereafter. 

The essential reasoning that we have adopted is set out at paragraph 26 on page 10.  Now, we have nailed our colours to the mast.  The Crown’s position and submission to your Honours is that the transitional provision item 418 did not permit the course that is now advocated on behalf of the appellant.  But, in any event, perhaps it is not relevant, we took our course and there it is.  We do not resile from it.  We do not want to try and change our position now.

Your Honours, in relation to some of the oral submissions of our learned friend Mr Barker, QC, and in particular dealing with some of the matters in the appellant’s submissions in reply which were from recollection filed on 26 April, we may find it convenient to briefly make a few short points at this juncture.  If your Honours were to have regard to those submissions in reply which were filed on 24 April and, of course, your Honours will recall that both in various written submissions and in my friend Mr Barker’s oral address, substantial reliance is placed on the decision of this Court in R v LK. 

One submission we do put about LK is that the whole focus of this Court’s decision in that case was elsewhere.  Namely, it was on what constituted the elements of the 11.5 offence and they were found to be contained in subsection (1).  Now, if we transpose that to the Code offence section 134.5(4), we find the same situation.  But our submission is that the remarks of your Honour the Chief Justice that our learned friend, Mr Barker, QC, took the Court to and also the remarks in LK of the plurality where at various places, as we have seen, there is reference to entry into an agreement were obiter stated in the significantly different context from this case. 

So far as we are aware and our researches disclose, the point that the appellant, or the principal points the appellant ventilates here, have not previously been considered except in this case in the judgments below of Justice Simpson and the Court of Criminal Appeal.  But in LK at page 205 at paragraph 57, for instance, your Honour the Chief Justice said that:

The common law defines the elements of the offence –

of conspiracy –

by reference, albeit not without some difficulty, to the agreement as the actus reus and the intention to do an unlawful act pursuant to the agreement as the mens rea.

Reference Justice McHugh and Peters v The Queen.  That expression “the fact of the agreement” fits, we submit, with the respondent’s basic position in this case and that is that there was one conspiracy throughout the period which, as we submit, Justice Simpson correctly held was criminalised by two contiguous legislative regimes; one which came to an end, one which immediately commenced upon it coming to an end, the essential criteria for the offence being identical.

We say that one does not read paragraph (9)(a) of section 135.4 as our friends urge upon this Court that it has any retrospective operation.  Now, we heard the recent interchange about it speaks in the past tense.  We did put that submission to Justice Simpson.  She took a different view, as did the Court of Criminal Appeal, but we have in our written outline put an alternative way, which we had previously relied upon, of how it may work.  It certainly could work in the way, with respect, your Honour Justice Gageler articulated but ‑ ‑ ‑

GAGELER J:   Paragraph (c) would also have to work in the same way though, would it not?

MR NEIL:   Paragraph (c) is perhaps the particular difficulty with the proposition.  We seek to explain it this way.  Paragraph (9)(a) can have immediate effect and an immediate effect is not a retrospective effect.  Paragraph (c), on one view, and perhaps we are not able to argue strongly against this view, must have a prospective effect.  It is something that it would seem has to be done, that is there be an “overt act” after the Code offence commences.  In practical terms, in this case there is no issue.  So far as the trial is concerned there were hundreds, if not more of them, many involving the appellant.

But be that as it may, we have addressed in some detail in our written outline what we say about state of affairs, but fundamentally we have respectfully adopted the analysis of “state of affairs” of both Justice Simpson below and Justice Johnson on behalf of the Court of Criminal Appeal.  My friend, Mr Barker, QC, says “state of affairs” for the purposes of the Code offence must mean an active state of affairs.  We submit that cannot be so. 

It would be a plain misuse of the language of the section, and merely because in some earlier cases there may be pointed to cases where there was a state of affairs simply by being in possession of something does not allow itself to be translated into artificially circumscribing the plain meaning of the words in section 4.1 to say that they must mean, and can only mean, passive states of affairs.  But even if they did, you can have a state of affairs that arises immediately by being in an antecedent agreement in which you are actively participating, and which continues on after the close of 23 May 2001, with no interruption whatever.  On one view that is just a passive circumstance that exists, but it could not be said, we respectfully submit, that ipso facto that cannot be a “state of affairs” within the meaning of section 4.1.

There would be little utility in expressly defining “conduct”, the physical element of this offence in section 4.1, as including a state of affairs if the state of affairs was to be given some, we would submit, artificial restriction, that the words of the section and the whole import of section 4.1, we submit, do not permit.  Section 4.1 is plainly intended to make clear that “conduct” has an expansive meaning, not a narrowly restricted one.

Could I just deal with a couple of matters in the reply?  It may be the most convenient way and the shortest way of us to make our principal points.  Our friends in the reply filed on 26 April in paragraph 4 refer to this form of indictment being “without precedent”.  That is not strictly so.  A similar form of indictment in different circumstances under section 86 arose in the case of R v Ronen, reported in (2006) 161 A Crim R 300.

BELL J:   I think no point was taken in Ronen about this question.

MR NEIL:   Your Honour Justice Bell is quite correct, and I think at paragraph 44 in the decision of the Court of Criminal Appeal – that is at appeal book 71 – Justice Johnson expressly noted that no argument such as this was advanced, but he regarded it as of some relevance.  He expressly made reference to it.

In relation to our friends’ reply at paragraph 8, our position is that count 2 in the indictment does not plead entry into a new agreement.  It merely pleads that the accused did conspire.  So far as the question of the actus reus is concerned, our friends in their reply at paragraphs 17 and 18 put an argument about that, but our submission is their position does not acknowledge that if the actus reus of conspiracy is entering into the agreement, you cannot have one person entering an agreement because the actus of the counterparty – that is, the other conspirator or conspirators – has concluded.

So simply put, there is no other person to agree with.  We need at least two people to enter at the same time in order for there to be an agreement, but because as the courts below held, the actus reus at common law of conspiracy – which LK did establish, in our submission – was imported into the Code, because neither “conspire” nor “conspiracy” are defined in the Code, the actus reus is properly to be understood as participation, and so understood, no difficulty arises.

So far as the question of our friends in oral submission and in their reply, and the passage in the written reply is at paragraph 16, acknowledging that conspiracy is a continuing offence, that without more, in our submission, is devoid of content.  One would ask rhetorically if it is not the actus reus of conspiracy that continues, what does continue, and how can the agreement itself continue if the actus reus is not continuing?

GAGELER J:   Mr Neil, I am sorry to hark back to subsection (9)(c), but is the doing of “an overt act pursuant to the agreement” part of the actus reus?

MR NEIL:   No, your Honour.  That is the one express statutory modification brought in by the Code that Justice Howie in the Court of Criminal Appeal in the decision of Ansari identified.  Ansari was considered in LK and in other cases and so far as our researches indicate, that has never been doubted.  That is the only express – and we put this in our written outline – the only express statutory modification of the common law of conspiracy is paragraph (c), whether it is in (9)(c) or 11.2(c), that is that there must be an overt act.  We say it does not really bear upon the issues in this case.  It does not touch anything of relevance.

GAGELER J:   So is one way of analysing the relationship between subsection (5) and subsection (9) to say that the actus reus of the offence in subsection (5) is the ongoing adherence to the agreement and subsection (9) sets out antecedent circumstances that must be shown to exist for that actus reus to be criminalised by subsection (5)?

MR NEIL:   Well, yes, your Honour, not exclusively, but it includes that and it fits the bill in your Honour’s scenario, we submit.  Without any question that is so.

GAGELER J:   Why I am asking that is because that sort of operation for subsection (9) might not be giving subsection (5)(a) retrospective effect in the most technical sense of the word “retrospective”.  The word “retrospective”, it has been said on a number of occasions, is an ambiguous word.

MR NEIL:   Yes, your Honour.

GAGELER J:   And it may be that the modification of conduct occurs by reason of subsection (5) prospectively, but subsection (9) simply sets out some prior events that must have occurred for that conduct prospectively to be criminalised.
MR NEIL:   Well, yes, I have submitted that in terms of paragraph (c), the requirement for an overt act, that may require an overt act post the commencement of the Code offence.  I am reminded that would be needed anyway or you would not have a continuing conspiracy beyond the commencement of the Code offence, because there would have to be some participation beyond the close of 23 May 2001 and that would be by way of overt acts by one or more of the alleged conspirators.  I hope I have answered your Honour’s question.

GAGELER J:   Yes, thank you.

MR NEIL:   In paragraph 18 of our friends’ written reply, it is submitted in the first sentence that “In the circumstances of this case the physical element” of conspiracy “cannot be a state of affairs” under “s.4.1(2)” of the Code “but must be conduct”.  Our submission is that is not correct and cannot be correct.  Now, the Crown does not resile from the proposition that conduct is necessary.  However, we suggest under the Code the question is what amounts to conduct?  Because under section 4.1(2) a “state of affairs” by definition is conduct for the purpose of the Code, a state of affairs must necessarily be capable of constituting the physical element of the offence under the Code, including of course the section 135(4) offence, and nothing else need be established.

HAYNE J:   Well, the reference to “state of affairs” may – it may not – have particular relevance in one of the two possible kinds of conspiracy with which the Code must grapple.  First, there is the conspiracy which is constituted by the agreement to commit a future single criminal act.  Here, the allegation made against the appellant was that there was a combination made before the Code was enacted, thereafter to commit a series of undifferentiated but successive criminal acts of defrauding the Commonwealth.

MR NEIL:   Yes, your Honour.

HAYNE J:   Relevantly, the state of affairs may – it may not, I do not know – find engagement in dealing with an agreement which is not an agreement confined to the performance of a single future criminal act but is an agreement that in future we will combine together to effect a series of frauds.

MR NEIL:   It may, your Honour.  Our submission is it covers the former circumstance, whatever be the situation.  That is how we would respond to your Honour Justice Hayne’s ‑ ‑ ‑

FRENCH CJ:   It is a kind of “standing, ready to perform” definition, is it?

MR NEIL:   Yes, yes your Honour.  Now, there is no issue on the facts of this case.  If there was a problem about it, our friends would have alerted this Court and the courts below to the fact that there was an uninterrupted, continuous course of conduct by the appellant and at least Mr Zerafa that went right through the end of 23 May and into the beginning of 24 May and continued on for some years.  What the Crown had to prove relevantly to this appeal – what it had to satisfy was that there were facts capable of constituting the physical element of the Code conspiracy offence.  Section 4.1 says:

(1)A physical element of an offence may be:

(a)      conduct –

It also says that a state of affairs includes conduct.  The state of affairs that exists at the commencement of 24 May 2001, against the background of which there is not dispute, must plainly be a state of affairs constituting conduct which satisfies the physical element of the Code offence.  I hope I am not being at all over‑simplistic in submitting that is fundamentally the Crown’s position and it involves no issue of retrospectivity and it really is the answer, we submit, to what has been put by our learned friends.

Your Honour Justice Bell raised some matters with Mr Barker, QC, and we, with the utmost respect, adopt your Honour’s analysis.  It had been flagged, and there are a couple of passages in the appeal book from the first special leave application where your Honour – I do not expect your Honour to recall this but if I could just identify the passages.  The first special leave application – and that was before Justice Gummow and your Honour Justice Bell – was on 15 June 2011, and the transcript commences at appeal book 95.  This was primarily in an interchange between Mr Hastings, QC, and your Honour Justice Bell.  Mr Hastings was representing the interests of the accountants from the Burwood firm, Owen T. Daniel & Company.

At page 98, about point 10 going through to point 20, your Honour Justice Bell identified what LK was looking at or, more specifically, what it was not looking at.  I just draw that to attention.  There is no point in reading it out, I do not think.  Your Honour came back to the matter with Mr Hastings at appeal book 101 around about line 20 and below, particularly in the last two sentences, where your Honour said:

I do not understand the courts to have embraced a view that was inconsistent by reference to the way the Crown’s argument with respect to subsection (9)(a) was dealt with.

Then, finally, and this is just to identify an issue at appeal book 102 at line 30, your Honour Justice Bell pointed out that:

It turns on the idea of what it is to conspire within subsection (5)(a) –

Now, Mr Hastings did say yes, well it was explained by subsection (9).  We have debated that at quite some length.  There was a lengthy debate, of course, before Justice Simpson and the Court of Criminal Appeal.  Your Honours will have gathered from our written outline that in substance we are submitting on all material disputes between the parties, Justice Simpson was correct.  The Court of Criminal Appeal was correct in so finding and adding its own reasons in support, in particular, through the reasons of Justice Johnson, and on legal principle our position is that the reasons of the two courts below really cannot be faulted. 

What has occurred here is simply a method of dealing with the fact that the Parliament saw fit to bring in the Code but leave a criminal conspiracy that was ongoing, purely and simply a conspiracy to defraud the Commonwealth of tax, criminalised immediately upon the repeal of section 86 of the Crimes Act and the commencement of section 135.4.  Your Honours, we made reference in our written outline to the case of Ahern v The Queen (1998) 165 CLR 87 but we apologise for this. We omitted to put it on our list but we have copies. I would like to go to one passage only. I wonder if I might have leave to hand copies up?

FRENCH CJ:   Yes, very well.

MR NEIL:   I am much obliged to his Honour, the Chief Justice.  We have previously given these to our learned friends.  Your Honours will be reminded that this was a decision of the Court comprising Chief Justice Mason and Justices Wilson, Deane, Dawson and Toohey.  I wanted to take your Honours, if I could, please to page 93, just below the middle of the page and the paragraph that commences:

In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it.  Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means –

Now, of course, this is pre‑Code.  It is within the period of section 86, but relevantly section 86 was in very similar terms to section 135.4.  It is the following words that, we submit, have some significance and “it is the fact of the agreement”.  We place some stress on that:

the fact of the agreement, or a combination, to engage in a common enterprise which is the nub of the offence.  This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence.

That is precisely the case here and was at the trial.  In the case of R v LK itself in this Court, and this citation may have been given but I should perhaps put it on the transcript, (2010) 241 CLR 177 – if your Honours will excuse me for a very brief moment – in the reasons of your Honour the Chief Justice at paragraph 64, page 208. Your Honour was discussing Churchill v Walton in the House of Lords and also Director of Public Prosecutions v Nock, which are cited in the footnotes at page 208 and said:

The difficulties of dividing the offence of conspiracy at common law into actus reus and mens rea was pointed out by McHugh J in Peters v The Queen.  As he said, the agreement which is the actus reus necessarily also includes a mental element.

FRENCH CJ:   So what are you deriving from this?

MR NEIL:   I am sorry, your Honour?

FRENCH CJ:   What are you deriving from this?

MR NEIL:   We do not have it, but – forgive me, your Honour, I have just got to come back to – yes, the reference just after your Honour referred to Director of Public Prosecutions v Nock:

It identified the intention to do the unlawful act as the mens rea of the offence and the fact of the agreement as the actus reus.

Now, we say what we have here, in fact, is an agreement, one continuous uninterrupted agreement, criminalised both under the Crimes Act for a certain period and under the Code thereafter up to 2006.  Your Honours, I was contemplating going to some parts of the second reading speech, but I may just – my reservation is I am not really sure that they add much to what I have submitted and I do not want to be perhaps more repetitive than I usually am.  It is in the folder of the appellant’s index and authorities, which your Honours may have as a large ring binder.  It is under the red – or mine is red – tab of legislation and other materials.

Under tab 8, there is the explanatory memorandum to the Criminal Code Bill 1994.  Unfortunately, these pages are not numbered, but one goes nearly to the end – they are double‑printed, but taking each page as a single page, one goes to I think the sixth last page from the end where near the foot of the page there is a heading “Proposed Section 11.5 – Conspiracy” which leads into the matter I wanted to draw attention to.  That is more readily seen over the page near the foot of that page ‑ ‑ ‑

HAYNE J:   I think it is page 40 of the explanatory memorandum.

MR NEIL:   Thank you, your Honour Justice Hayne.  At the foot, it states:

Proposed paragraphs 11.5(2)(a) & (b) are drafted to clearly separate the agreement component of the conspiracy from the intent to commit an offence pursuant to that agreement.

We would say that is plainly to be read in the context “clearly separate the fact of the agreement component” from the intent to commit an offence.  That is, the concern was to separate out the agreement from the intention, and also to deal with the problems of recklessness and so on.

HAYNE J:   What exactly do we get out of that, Mr Neil, that bears on the issue in this case?

MR NEIL:   It is tangential.  If your Honour would indulge me for a very brief moment, I will ‑ ‑ ‑

FRENCH CJ:   “Tangential” is something that glances off the curve and goes in a different direction.

MR NEIL:   Yes, I am assisted.  If they were going to intentionally change the Code meaning of “conspiracy” in a radical way, or, we would submit, in the way advocated by our learned friends, they would have been very likely to have brought it out in the explanatory memorandum.

GAGELER J:   Mr Neil, could I take you back please to paragraph (9)(a)?  It is just to identify precisely what you say in the offence as particularised meets the language of (9)(a).  Is it the formation of the agreement in 1997 as particularised in paragraph 6 of the particulars, or is it the adherence to the agreement on and after 24 May 2001?

MR NEIL:   It is the latter, your Honour, the adherence.

GAGELER J:   Thank you.

MR NEIL:   And the adherence to an agreement which never comes to an end is relevantly until late October 2006.  Your Honours, the balance of what we wish to rely upon has been fairly fully set out in the written outline.  Unless there are other matters that I am able to assist your Honours with, they would be the respondent’s submissions.

FRENCH CJ:   Thank you, Mr Neil.  Yes, Mr Barker.

MR BARKER:   Your Honours, if I could go back to where I started at count 2, we sought particulars of the agreement upon which it relied and were told there were none.  It can only refer to an agreement entered into under section 135.4(5).  That would then enliven subsection (9), all of which refer to “the agreement” contemplated by subsection (5).  I say, all of which refer to “the agreement”, even though 9(a) says “an agreement”. 

The point is that (b) and (c) both deal with agreements and they deal with conduct pursuant to the agreement, the agreement being the agreement in subsection (5).  In my respectful submission, the Crown has not answered this problem.  Why do we have a specific count of conspiracy laid according to a specific statute which requires an agreement?  If there was no agreement, I submit that the count should go. 

It is not a question of saying, well, we have this overarching agreement starting in January 1997 and going on until April 2008.  We have an allegation of a specific agreement entered into pursuant to the Criminal Code.

HAYNE J:   How does that submission sit with the particulars in paragraph 1 under the rubric “particulars of conspiratorial agreement” in relation to counts 1 and 2:

1.        The conspiracy alleged was –

et cetera?

MR BARKER:   It does not.  That is the point of the submission.  The founding document is the indictment.  Particulars are usually sought to provide material which is going to be used as evidence to support the indictment.  In my respectful submission this indictment is bad and the Court should quash it. 

FRENCH CJ:   Yes, thank you.  The Court will reserve its decision and the Court adjourns until 10.15 tomorrow morning.

AT 12.09 PM THE MATTER WAS ADJOURNED