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Agius v The Queen

Agius v The Queen

Case [2011] NSWCCA 119 24 May 2011

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119
Hearing dates: 13 May 2011
Decision date: 24 May 2011
Jurisdiction: Criminal
Before: Tobias AJA at 1
Johnson J at 2
Hall J at 96
Decision:
1. Leave granted to the Applicants under s.5F(3)(a) Criminal Appeal Act 1912 to appeal against the interlocutory judgment or order of Simpson J refusing a permanent stay of the second count on the indictment.
2. Appeals dismissed.

Catchwords: CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 - refusal by trial Judge to grant permanent stay of second count on indictment - indictment alleging two counts of conspiracy - Crown alleges single tax fraud conspiracy extending from 1997 to 2008 - change in legislative regime during course of alleged conspiracy - two counts charged to reflect change in legislative regime - whether second count foredoomed to fail - whether necessary for Crown to prove fresh agreement entered for purposes of second count - nature of conspiracy - continuing offence - whether s.135.4 Criminal Code 1995 (Cth) required proof of fresh agreement entered into within period of second count - physical element of s.135.4(5) offence - "state of affairs" - second count not foredoomed to fail - no error in refusal of permanent stay - leave to appeal granted - appeal dismissed
Legislation Cited: Criminal Appeal Act 1912
Crimes Act 1914 (Cth)
Interpretation Act 1901 (Cth)
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
Criminal Code 1995 (Cth)
Cases Cited: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 367
R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134
R v Steffan (1993) 30 NSWLR 633
R v Matovski (1989) 15 NSWLR 720
R v Dinh [2000] NSWCCA 536; 120 A Crim R 42
R v Einfeld [2008] NSWCCA 215; 71 NSWLR 31
R v King [2003] NSWCCA 399; 59 NSWLR 472
Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
Williams v Spautz [1992] HCA 34; 174 CLR 509
R v Chairman, County of London Court of Sessions; Ex parte Downes [1954] 1 QB 1
R v Petroulias (No. 1) [2006] NSWSC 788; 177 A Crim R 153
Walton v Gardiner [1993] HCA 77; 177 CLR 378
R v Jasper [2003] NSWCCA 186; 139 A Crim R 329
Doney v The Queen [1990] HCA 51; 171 CLR 207
The Queen v LK [2010] HCA 17; 241 CLR 177
R v B [2008] NSWCCA 85; 76 NSWLR 533
Director of Public Prosecutions v Doot [1973] AC 807
R v JS [2007] NSWCCA 272; 175 A Crim R 108
R v Ronen [2006] NSWCCA 123; 161 A Crim R 30
R v G, F, S and W [1974] 1 NSWLR 31
Woss v Jacobsen (1985) 11 FCR 243
R…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agius v The Queen

Details

AGLC: Agius v The Queen; Abibadra v The Queen; Jandagi v The Queen; Zerafa v The Queen [2011] NSWCCA 119
Case: [2011] NSWCCA 119
Decision Date: 24 May 2011

CaseChat Overview and Summary

The applicant, Agius, sought leave to appeal a decision of the trial judge, who refused to grant a permanent stay of the second count on an indictment. The indictment alleged two counts of conspiracy, with the Crown asserting a single tax fraud conspiracy extending from 1997 to 2008. A change in the legislative regime occurred during the course of the alleged conspiracy, which led to the charging of two counts to reflect the change. The key legal issues were whether the second count was foredoomed to fail, if the Crown needed to prove a fresh agreement for the second count, and the nature of the conspiracy as a continuing offence. Additionally, it was questioned whether section 135.4 of the Criminal Code 1995 (Cth) required proof of a fresh agreement within the period of the second count, and what constituted the physical element of the s.135.4(5) offence, specifically the "state of affairs."

The court held that the second count was not foredoomed to fail and that there was no error in the trial judge's refusal to grant a permanent stay. The court found that a conspiracy could be a continuing offence, and the Crown did not need to prove a fresh agreement for the second count, provided there was a continuity of purpose and intent. The court also determined that the physical element of the offence under s.135.4(5) related to the "state of affairs" created by the conspiracy, which was present throughout the entire period of the alleged conspiracy. Consequently, leave to appeal was granted, but the appeal was ultimately dismissed.

No further orders were made by the court beyond dismissing the appeal. The court's decision upheld the trial judge's refusal to grant a permanent stay and clarified the legal principles surrounding continuing conspiracies and the application of section 135.4 of the Criminal Code 1995 (Cth).

Orders