Ansari v The Queen

Case [2010] HCA 18

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No S287/2009

HAJAMAIDEEN MOHAMED ANSARI  APPELLANT

AND

THE QUEEN  RESPONDENT

Matter No S288/2009

ABDUL AZEES MOHAMED ANSARI  APPELLANT

AND

THE QUEEN  RESPONDENT

Ansari v The Queen
Ansari v The Queen
[2010] HCA 18
26 May 2010
S287/2009 & S288/2009

ORDER

In each matter, the appeal is dismissed.

On appeal from the Supreme Court of New South Wales

Representation

S J Odgers SC with W P Lowe for the appellant in each matter (instructed by Ford Criminal Lawyers)

P W Neil SC for the respondent in each matter (instructed by Commonwealth Director of Public Prosecutions)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Ansari v The Queen
Ansari v The Queen

Criminal law – Conspiracy – Fault element – Recklessness – Where appellants charged with conspiracy to deal with money where risk existed money would be used as instrument of crime – Whether charges bad in law because of inherent inconsistency in proving conspiracy where fault element of offence the object of conspiracy is recklessness – R v LK [2010] HCA 17.

Words and phrases – "conspiracy to commit an offence", "instrument of crime".

Criminal Code (Cth), ss 5.4, 11.5, 400.3(2).

FRENCH CJ.

Introduction

  1. On 15 March 2006 the appellants and their brother, Abdul Jaleel Mohamed Ansari, were arraigned upon a joint indictment in the District Court of New South Wales on two counts of conspiracy under s 11.5 of the Criminal Code (Cth) ("the Code") to commit an offence against Commonwealth law known broadly as money laundering. The three men pleaded not guilty. The appellants were found guilty on each count. The jury were unable to reach a verdict in relation to their brother.

  2. The appellants appealed against their convictions to the Court of Criminal Appeal of New South Wales.  They did so on the ground that the offences of which they had been convicted were not known to the law. They contended that the charges against them were bad because they alleged a mental state involving an intention which contemplated future reckless behaviour.  On 14 August 2007, the Court of Criminal Appeal dismissed their appeals[1].  They applied for special leave to appeal to this Court on 12 September 2007.  Their applications lapsed, but were later reinstated.  On 2 October 2009 special leave was granted.  The appeals were heard immediately after R v LK[2].  These reasons should be read with those in LK so far as they relate to the elements of conspiracy under the Code.

  3. For the reasons that follow the appeals must be dismissed.

    The indictment

  4. The first count of the joint indictment alleged against the appellants and their brother that:

    "Between about 1 September 2003 and about 14 October 2003 at Sydney in the State of New South Wales and elsewhere…

Continue reading Ansari v The Queen

Sign in free to access the full text

Details
AGLC
Ansari v The Queen [2010] HCA 18
Case
[2010] HCA 18
Decision Date

CaseChat Overview and Summary

The case of *Ansari v The Queen* concerned appeals by the appellants against their convictions for two counts of conspiring to commit a money laundering offence. The convictions arose from their involvement as directors of a money exchange business where they received large sums of cash, which were then deposited in amounts below $10,000 into various bank accounts. The appeals were heard by the High Court of Australia.

The central legal issues before the High Court were whether it was legally permissible under the *Criminal Code* (Cth) to charge a conspiracy to commit an offence where the fault element of that offence was recklessness, and whether the physical and fault elements of the offence of conspiracy had been correctly characterised by the Court of Criminal Appeal. The appellants argued that a charge of conspiracy to commit an offence with a recklessness fault element was "bad in law".

The High Court, in its joint reasons with a related case, *R v LK*, determined that the charges laid against the appellants did disclose offences. The Court found that the characterisation of the physical and fault elements of the conspiracy offence under the *Criminal Code* by the Court of Criminal Appeal was correct. Consequently, the appellants' grounds of appeal failed.

In each matter, the appeal is dismissed.

Orders

Orders of the court

In each matter, the appeal is dismissed.

Background

Background to the litigation

Section 31(1) of the FTR Act makes it an offence for a person to be a party to two or more "non-reportable cash transactions" where it would be reasonable to conclude that the person conducted the transactions in a particular manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner or form that would not give rise to a "significant cash transaction", within the meaning of the FTR Act. That purpose is assessed by reference to enumerated factors[5]. This kind of offence is commonly referred to as a "structuring offence".[5]FTR Act, s 31(1)(b).The factual background It is common ground that the Court of Criminal Appeal dealt with the case on the factual basis that follows. The appellants were directors of a company called Exchange Point Pty Ltd, through which they conducted a money exchange business in Sydney. In mid-2003, Z was recruited by a relative and other associates from Romania to travel to Australia and collect more than $2,000,000 in cash from the back of a floor safe located in an apartment at Bondi. He did so, and over a ten-day period delivered instalments of the money to the appellants at the Exchange Point premises. The appellants were said to have arranged for an associate to come to Exchange Point and take various portions of the money which they had received from Z and deposit them into a number of different bank accounts. The associate deposited a total of $1,952,107 on behalf of the appellants between 16 October 2003 and 13 May 2004. The sums were deposited in amounts of less than $10,000. The second count arose out of another visit to Sydney by Z in June 2004. The Crown case in relation to the first count was that when the appellants received cash exceeding $2,000,000 in October 2003: (a)there were risks that at least some of the money which they had received might be used in structuring offences and that at least some of it would be dealt with in a way that facilitated deliberate tax evasion; (b)the risk that the money would become an instrument of crime was one in respect of which the appellants were reckless "in the sense of being aware of and going ahead". In respect of the second count the Crown case was that the appellants agreed with Z in June 2004 to receive between $2,000,000 and $3,000,000 in cash and: (a)they intended that they would receive from Z well over $1,000,000 in cash; (b)a risk existed that the money would become an instrument of a structuring offence or an indictable offence under Commonwealth law which potentially could be committed by deliberately evading the reporting of taxable income from a cash source; (c)the appellants were aware of the existence of the risks referred to in (b). The Crown case against the appellants did not ultimately rely upon them being reckless about the risk of the money becoming an instrument of crime. Their receipt and their contemplated receipt of the money, intending to "launder" it by deposits of less than $10,000, was said to have created the relevant risk. The charge was framed in terms of recklessness because the Crown was concerned that it would not be able to prove that Jaleel Ansari (about whom the jury ultimately were unable to reach any verdict) had any knowledge or intention that the money would be the subject of structured cash transactions.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
For the preceding reasons the charges laid in the indictment against the appellants did disclose offences and the first ground of appeal therefore fails. The second ground of appeal fails for the reasons given in LK[30].[30][2010] HCA 17 at [51]-[57], [75]-[78].Conclusion The appeals should be dismissed. Introduction The appellants were convicted, following a trial in the District Court of New South Wales, of two counts of conspiring to commit a money laundering offence. Part 10.2 of Ch 10 of the Criminal Code (Cth) ("the Code")[31] creates a number of offences involving this activity. The offence particularised as being the object of these conspiracies involves dealing with money being reckless as to the risk that the money will be used as an instrument of crime. [31]Criminal Code Act 1995 (Cth), s 3. The appellants appealed against their conviction to the New South Wales Court of Criminal Appeal upon a single ground, which contended that they had been "tried and convicted of an offence not otherwise known to law"[32]. Under the Code it is an offence to conspire with another person to commit an offence punishable by more than 12 months imprisonment or a fine of 200 penalty units or more[33] ("a non-trivial offence"). The appellants' case before the Court of Criminal Appeal was that it is not open under the Code to charge a conspiracy to commit an offence that has recklessness as its fault element. The Court of Criminal Appeal rejected this contention and dismissed the appeals.[32]R v Ansari (2007) 70 NSWLR 89 at 91 [4] per Simpson J ("Ansari").[33]Code, s 11.5(1). The appellants applied for special leave to appeal from the orders of the Court of Criminal Appeal. Their applications lapsed. They were reinstated following the grant of special leave to appeal in R v LK ("LK")[34]. That case raised an issue concerning proof of a conspiracy to commit the offence of dealing with money being reckless to the circumstance that the money is proceeds of crime[35]. It also raised an issue concerning the elements of the offence of conspiracy under s 11.5 of the Code. On 2 October 2009 the present appellants were granted special leave to appeal. The two grounds of appeal upon which special leave was given raise issues in common with those raised in LK. These appeals were heard immediately following the hearing in LK. These reasons are to be read with the joint reasons in LK. [34][2010] HCA 17.[35]Code, s 400.3(2)(b)(i). One of the appellants' grounds contends that the Court of Criminal Appeal erred in its characterisation of the physical and fault elements of the offence of conspiracy under the Code. For the reasons given in the joint judgment in LK, the Court's analysis was correct and this ground must be dismissed. This conclusion has no bearing on the determination of the appellants' remaining ground, which is that the Court of Criminal Appeal erred in holding that a charge of conspiracy to commit an offence of recklessness under the Code is not "bad in law".

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Full text does not contain this section.