Ansari, HM v The Queen; Ansari, AAM v The Queen

[2009] HCATrans 258

[2009] HCATrans 258

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S479 of 2007

B e t w e e n -

HAJAMAIDEEN MOHAMED ANSARI

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S481 of 2007

B e t w e e n -

ABDUL AZEES MOHAMED ANSARI

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 OCTOBER 2009, AT 12.43 PM

Copyright in the High Court of Australia

__________________

MR S.J. ODGERS, SC:   May it please the Court, I appear for both applicants.  (instructed by Ford Criminal Lawyers)

MR P.W. NEIL, SC:   I appear for both respondents, may it please your Honour.  (instructed by the Commonwealth Director of Public Prosecutions)

HEYDON J:   Mr Neil, you will be aware that in LK v The Queen Justices Gummow, Bell and I granted special leave to appeal, I think, in May or June.  There appears to be considerable common ground between this application and that appeal.  In those circumstances, why should special leave not be granted in relation to these applications?

MR NEIL:   Your Honours, the submissions fundamentally are that at a factual level there is a radical distinction between RK & LK in these cases and that an appeal in these matters would have no utility to the applicants because it could not lead to their convictions being quashed and that really none of the issues relating to the meaning of “recklessness” under the Code arise in these matters because of the way that the trial proceeded – not at all dependent upon recklessness according to its common law meaning, but a case charging recklessness but relying upon the extended statutory meaning of “recklessness” in the Code in section 5.4(4), which brings in an ability to prove recklessness by proving intention or knowledge.  At the trial that is what the Crown in these matters set out to do and that is what occurred.

I could demonstrate that by going to a number of passages in the application book perhaps commencing with a paragraph from the written directions that the learned trial judge, his Honour Judge Woods, QC, gave to the jury, which your Honours will find commence at page 3 under the heading “Directions of Law”.  The particular passage I want to take your Honours to is at the foot of application book 9 at about line 60 in that final paragraph:

As a matter of law, it would be sufficient proof of such “recklessness” if the accused actually intended the risk or knew of the risk.  This is what the Crown alleges here.

Then over the page, at page 10, commencing at about line 10 his Honour charged the jury:

The Crown case has been presented on the basis that the conduct of the accused was at all times deliberate and conscious, undertaken in the full knowledge that what they were doing was secretive and in breach of the laws of the kind set out in this indictment.

On behalf of each of the accused, proof of any relevant knowledge, intention or awareness is disputed.

That was the complete basis upon which the trials of the applicants were conducted and that is made explicitly, we would respectfully submit, in the reasons of Justice Simpson, which appear at page 351 of the application book.  Just above line 30 her Honour says it is conceptually unacceptable to have a charge, in her view, of recklessness and its common law sense.  She goes on to say:

But it emerges only from the unextended meaning of “recklessness”.  To prove recklessness, by reason of s 5.4(4) the Crown could also prove either that the appellants intended or knew that the money would become an instrument of crime.  That is, in fact, what the Crown here set out to do.

In the reasons of Justice Howie, at page 375 of the application book, at about line 50, paragraph 89, his Honour, having referred to the extended statutory meaning of “recklessness” under the Code, said:

Provided that the Crown was intending to prove as against the appellants that they knew that there was a risk that the money they dealt with would become an instrument of crime, that is that they knew of all the facts that made their dealing with the money criminal conduct, there was no impediment to the prosecution proving the offences charged.

There are a number of other passages and they perhaps sufficiently make the point that – as your Honours will recall, RK & LK, apart from the fact that it was a somewhat different charge, the fundamental difference was that there was no allegation whatsoever by the prosecution against those accused of any intention or knowledge with respect to the moneys.  It was pleaded there that the moneys were in fact proceeds of crime and that they were reckless in the pure sense of a risk.  Now, that is why these cases are fundamentally different and why we submit that, as we put in the written outline, the special leave questions postulated by our learned colleague really do not arise.  It is difficult to see how they can be answered in the context of these particular matters.

One of the matters Justice Simpson pointed out was that, as she saw it, the fatal flaw in the applicants’ argument upon the appeal was the complete failure to make any argument with respect to the extended meaning of “recklessness” under 5.4(4) and therefore not to argue what was the essential question for consideration in the way the trial had been conducted.  In other words, as we understand it, your Honours, there has never been a contention in any court on behalf of the applicants that the offence with which they were charged could not be committed if it were put forward, although charged as recklessness, upon the extended statutory meaning of “recklessness” which does not apply under the common law.

That was never put to the learned trial judge, Judge Woods, QC.  It was not put to the Court of Criminal Appeal.  It would arise if special leave is granted for the first time here, but, as we have submitted in the written outline, we are at difficulty in seeing how, whatever answers may arise from the Court’s decision in RK & LK on the recklessness per se issue, how they could have any impaction upon the convictions of the applicants on the charges upon which they were convicted.  That is the fundamental genesis of the opposition.  We appreciate, of course, that at face value there appears to be some commonality between this and RK & LK.  Our submission is directed to endeavouring to persuade your Honours that, in reality, there is none and that these questions cannot be answered if special leave is granted in an appeal in these matters, whereas they all fall for answer and will be answered in RK & LK.  That is our fundamental position, may it please your Honours.

HEYDON J:   Thank you, Mr Neil.  Mr Odgers, is it the case that your application is a day or so out of time?

MR ODGERS:   Yes, I seek an extension.

HEYDON J:   Is that a problem, Mr Neil?

MR NEIL:   I have no objection, your Honours.

HEYDON J:   That application is granted.  We are of the opinion that, despite Mr Neil’s arguments, special leave should be granted and that the appeal should be heard either simultaneously with or immediately after the appeal in LK.  It would be sensible, I think, for the parties to stay in touch with the Registry and provide their own input into what date that will be.  It will be either late this year or more likely early next year.  Thank you, gentlemen.

Adjourn the Court to 10.15 am on Monday, 12 October 2009 in Perth.

AT 12.53 PM THE MATTER WAS CONCLUDED