Ansari v The Queen

[2009] HCATrans 315

[2009] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S287 of 2009

B e t w e e n -

HAJAMAIDEEN MOHAMED ANSARI

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Sydney  No S288 of 2009

B e t w e e n -

ABDUL AZEES MOHAMED ANSARI

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 DECEMBER 2009, AT 10.17 AM

(Continued from 2/12/09)

Copyright in the High Court of Australia

__________________

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Thank you, your Honour.  Can I just hopefully briefly just touch on three matters raised yesterday.  Firstly, your Honour Justice Gummow raised the issue of codification and section 2.1.  We did make submissions in respect of this in the written submissions at page 7.  If I could just ask your Honours to turn to those written submissions at page 7 you will see under paragraph (c) there is a discussion of this issue.  Your Honours will note that we challenged the proposition of Justice Howie “that the Common Law applies to conspiracy to the extent that there is not a contrary express provision in the Code”.  We contend that that approach is misconceived.

GUMMOW J:   Where are you reading from, Mr Odgers?

MR ODGERS:   I am reading from the submissions rather than going to the appeal book, but it is appeal book 681, paragraph 84.  Page 7 of the submissions.  I am sorry, your Honour.

GUMMOW J:   Yes.

MR ODGERS:   At the top of the page, your Honour, you will see there is a paragraph (c) and I have extracted ‑ ‑ ‑

GUMMOW J:   Well, the common law cannot apply because there is no such thing as a common law offence against the Commonwealth.

MR ODGERS:   Your Honour, I apprehend that Justice Howie meant by that that he imported common law principles relating to conspiracy under the common law into ‑ ‑ ‑

GUMMOW J:   I am not saying it does not follow, but it would have to follow as a matter of construction of the statute.

MR ODGERS:   I am not sure what your Honour means – it would have to follow.  That, of course, is one of the key issues here.

GUMMOW J:   I will not say anything.

MR ODGERS:   I am sorry, your Honour.  In any event, I am challenging the approach of Justice Howie.

GUMMOW J:   I had hoped someone overnight would have read Kidman, that is all.  Yes, go on.

MR ODGERS:   Your Honours, my submission is that what Justice Howie is saying there is inconsistent with section 2.1, which your Honour Justice Gummow took me to yesterday.  Section 2.1 refers to the general principles of criminal responsibility.  It is clear that Chapter 2 deals with those general principles of criminal responsibility.  Section 11.5 falls within Chapter 2 and Part 2.4 is in Chapter 2.  Part 2.4. deals with extensions of criminal responsibility – that is, it provides the elements of the offences, such as attempt under criminal law and conspiracy under criminal law.  It may be seen that general principles of criminal responsibility include a codification of the elements of conspiracy under the Commonwealth law.

It may be inferred that the intention was, based on section 2.1, that 11.5 would specify all the elements of conspiracy under Commonwealth law.  That, we submit, is a proper interpretation of 2.1 as applied to 11.5.  That reflects, we say, the proposition of Chief Justice Spigelman, which we have extracted, again, at page 7 of the written submissions, where his Honour said that a central purpose of adopting the Code is to comprehensively state each of the elements of criminal offence.

We say it is consistent with the broader principle – I am not going to draw analogies to palimpsests, but the broader principle for codification of criminal offences – that the Code provision should be interpreted without reference to pre-existing law.  That is what Justice Brennan called in Boughey the paramount rule.  So one begins with the Code provision.  One proceeds on the assumption that it is going to state all the elements of the offence – in this case conspiracy – and one only goes to the pre-existing law if there is an ambiguity about a particular expression within that provision.

So what I am saying to your Honours is that Justice Howie’s approach, which I have extracted, found at page 681, paragraph 84, is directly inconsistent with the proper approach to the interpretation of a Code provision such as 11.5.  Perhaps I could take you to what Justice Howie said at page 681, if I might.  This is paragraph 84 at about line 8.  His Honour was referring to section 11.5(7A) which he says the existence of that provision supported the argument:

that the Common Law applies to conspiracy to the extent that there is not a contrary express provision in the Code.  Section 11.5(7A) was obviously inserted to ensure that in this respect the Common Law would not apply.

I respectfully submit that the contrary is the case.  Subsection (7A) was inserted to override the effect of section 11.5(2)(b).  Absent (7A) the effect of section 11.5(2)(b), which is intend that an offence be committed, would require that each and every physical element of the offence has to be intended.  That submission has been made repeatedly to your Honours and I will not again repeat it in detail.  That would mean, absent (7A), that even an element of an offence to which there was absolute liability that the effect would be pursuant to subsection (2)(b) that the conspirator would have to intend that physical element to exist even though it was a matter of absolute liability in respect of the foundational offence.  Therefore (7A) was introduced to overcome the effect of (2)(b), not to ensure that the common law would not apply.

That was the first matter I wished to return to.  The second is something that your Honour Justice Heydon raised with me.  You raised with me the relevance of such learned commentators on the common law as Glanville Williams and Professor Ormerod.  I think Mr Game referred to Professor Ormerod, author of Smith and Hogan.  Our answer was that the Criminal Law Officers Committee considered those views and resolved them in the Code.  I just want to give your Honour one example of how that occurred.  If I can just return you to the Criminal Law Officers Committee report on Chapter 2, and take you to page 79.

Your Honours will see that there is a very large footnote, footnote 1.  This was a footnote on the question of whether or not attempt could be committed recklessly or whether intention was required.  There is an extensive discussion in that footnote of the English Law Commission position, academic writings, common law authority in respect of sexual offences, could attempted rape be committed reckless as to consent?  All of those issues were considered in this footnote.  If you return to page 77 you will see that the footnote, which is about point 6 on page 77, and noted that the position at common law is unclear about recklessness, whether or not recklessness is sufficient for attempt, and then the Officers Committee proceeded to accept the submissions that recklessness should not be sufficient.

This, in my submission, demonstrates the flaw of looking at common law discussions or discussions of academic commentators in England or Australia.  Prior to the Code, the Officers Committee effectively codified the law, resolved those issues and this Court, in my respectful submission, should implement the outcome of those determinations.

FRENCH CJ:   Just going back for a moment to (7A) that speaks of special liability provisions that apply to an offence.  If you go back to 6.1 and 6.2, there seem to be two classes of special liability provisions in each case; those that apply to the offence and those that apply to elements of the offence.  So, you may have a special liability provision, say strict liability, which applies to a particular physical element.  Alternatively, you can have strict liability applying to the whole offence.

MR ODGERS:   Your Honour, I do have to interrupt, I am sorry, but strict liability is not a special liability provision.

FRENCH CJ:   Well, then, how do we define “special liability provision”?

MR ODGERS:   It is defined.

FRENCH CJ:   Where is that?

GUMMOW J:   Page 334 of Reprint No 2.

MR ODGERS:   It is in the dictionary, the dictionary to the Code, your Honour.

FRENCH CJ:   I am sorry, thank you.  Yes.

MR ODGERS:   Thank you, your Honour.  The third matter I wished to return to was something that your Honour Justice Bell raised with me towards the end of my submissions yesterday.  Your Honour asked me what was the physical element that the intention in 11.5(2)(b) was a fault element “for”, if it was a fault element at all which, of course, is one of the issues.  We, as I said yesterday, challenge an assumption that a fault element must be for some physical element.

Your Honours, I have to say to you this is probably the single most important issue that arises in Commonwealth criminal law and I will explain why it is so important.  We deal with it in the reply at page 3, if I could just take your Honours to that, paragraph (c).  As I said yesterday, our submission is that the Code does not require all fault elements to be “for” a physical element.  I have given the example of section 134.1(1) and perhaps if your Honours could go to that provision.  This is the offence of “Obtaining property by deception”:

(1)      A person is guilty of an offence if:

(a)the person, by a deception, dishonestly obtains property belonging to another with the intention of permanently depriving the other of the property –

Now, clearly enough there are at least two fault elements in that provision.  One is dishonestly and that is clearly a fault element for the obtaining.  You must obtain dishonestly.  “Dishonestly” is defined in the Code effectively to mean you know that it is dishonest by the standards of ordinary people.

There is another fault element, which is an intention to permanently deprive. That plainly is also a fault element. Now, our submission is that is not a fault element for the obtaining. It accompanies the obtaining. It is a fault element that coexists with the obtaining, but the fault element for the obtaining is dishonestly. If that is not correct, if your Honours considered that intention to permanently deprive was a fault element for the obtaining as well, then a serious problem would arise by reason of section 3.2(b) because it could be contended that since there are two fault elements for the obtaining, only one needs to be proved. Now, that, with respect, is just most implausible. It is simply inconceivable that a prosecution could be able to pick and choose whether they establish a dishonesty or an intention to permanently deprive. It must be the case that both must be proved, in which case there is a serious problem with 3.2(b) if intention to permanently deprive is a fault element for the obtaining. There is an even more serious problem, and I will give you an example of that. Section 270.7 of the Criminal Code “Deceptive recruiting for sexual services”:

(1)A person who, with the intention of inducing another person to enter into an engagement to provide sexual services, deceives that other person about –

a range of matters, including the extent to which the person will be free to leave his or her place of residence.  I think your Honour has dealt with a similar provision in an earlier decision.  Plainly a fault element is an intention to induce another person to enter an engagement.  I ask rhetorically, is that a fault element for the deceives?  It is plainly a state of mind that must exist at the time of the deceiving, but my respectful submission is it is not a fault element for the deceives.  If it is a fault element for the deceives, then section 5.6 has no application. 

Section 5.6, as your Honours know, is one of the central components of this Code.  It deems a fault element to exist if no fault element is specified for a physical element.  If it were concluded that an intention to induce another person to enter into an engagement to provide sexual services was a fault element for the deceiving, then there would be no deeming of intention in respect of the deceiving, which would mean, on one interpretation, that if “deceives” means make a false statement, for example, where the other person believes it to be true when it is false, that would mean that a person would be guilty even though they did not know themselves that it was false.  They did not intentionally deceive.

Now, a counter argument might be put to me that the word “deceives” carries within it something, some kind of knowledge.  That is not the way the Code has generally been constructed.  It is generally divided into physical elements and fault elements.  My submission to your Honours is this is an illustration of the very serious problems that can arise throughout the Criminal Code if the view is taken that a fault element must be for a physical element.

BELL J:   Do I understand this to be by way of a submission that if we turn to 11.5(2)(b) we are looking at a fault element that stands alone?

MR ODGERS:   Yes.

BELL J:    Yes, all right.

MR ODGERS:   Your Honours will be happy to know that I am now to move very quickly, I think.  If I can take your Honours to paragraph 27 of the submission.

HAYNE J:   Just before you part from the subject you have been dealing with, the base for the submission is necessarily, I think, that there can be something identified as a fault element in 3.1(1), which provides that “An offence consists of physical elements and fault elements” and that there can be a fault element which is not a fault element for a particular physical element, is that right?

MR ODGERS:   Yes your Honour, that is right.  That is the submission.

HAYNE J:   The presupposition for that is that 3.1(1) is doing more than describing a universe, it is requiring that the universe relevantly be capable of division into those two parts and only those two parts, is it not?  That is the premise.

MR ODGERS:   No, I am not sure I accept that, your Honour.  My submission is it uses the term “fault elements”.  It does not use the term “an offence consists of physical elements and fault elements for physical elements”.  It does not say that.  It just says “fault elements” and that fault elements could include fault elements that are not for physical elements.

GUMMOW J:   I am not sure where we are left, as to what your response is to what Justice Hayne is putting to you.  We need to know very specifically.

MR ODGERS:   I am sorry, I have obviously misunderstood what is being put to me.

HAYNE J:   The proposition I put to you, I think, was this.  The real question is whether it comes out the same way, Mr Odgers.  The proposition was that 3.1(1) requires that an offence be described in a way that divides the universe into either physical element or fault element and nothing else.

MR ODGERS:   Certainly, I accept that.

FRENCH CJ:   That is to say, is it, that all things that have to be proved in order to prove an offence must be either physical or fault elements?

MR ODGERS:   Yes, I accept that too.  I was taking your Honours to page 12 of the written submissions.  Can I begin by saying that, as I indicated yesterday, I accept the proposition your Honour Justice Hayne put to the parties in the earlier matter that it is conceivable that you could have A and B intending that a circumstance exists, money be proceeds of crime, a risk exists that money become an instrument of crime, and intend that C, the person who is going to deal in the money, be reckless as to that circumstance.  I accept that that is a conceivable scenario.

But this, of course, as stated in paragraph 27, was a case where the two appellants were to be the persons who dealt in the money by receiving it.  In this case, A and B were to be the persons who committed the offence.

HAYNE J:   But there was a third alleged member of the conspiracy in respect of whom the Crown ran the case, saying there may be some less degree of certainty about what the third member knew.

MR ODGERS:   I think the position was, as I understand it, that he was in France and was hardly likely to be dealing with the property.  As against him, the scenario your Honour posited applied:  A and B – in that case A, B and C – intended that A and B would deal with it and C was the accused in that situation.  In respect of this appeal, A and B, the appellants, intended that they would deal with it.

In paragraph 28 we endorse what I think Justice Simpson described in the Court of Criminal Appeal as some of the conceptual difficulties or unacceptabilities or logical problems that are created in such a situation.  I invite your Honours to read paragraph 28.  I will not read it out.  In the last sentence we say that there is a serious difficulty in a scenario where a person both intends that a circumstance exist and intends that they will be reckless about the existence of the circumstance in the scenario we are discussing.

We would go further and say that it is conceptually – I withdraw that.  The issue here is intention to be reckless about the existence of some circumstance.  If that is the result of a conclusion that an intention to commit an offence of recklessness require - a fault element of which is recklessness, that you must intend that that fault element exists.  In this case it was the appellants intending that they would be reckless at some time in the future when they dealt with the money.

“Recklessness” is defined in the Code to mean awareness of a substantial risk and it is unjustifiable to take the risk.  We say it is conceptually unacceptable to intend to be aware of a substantial risk that a circumstance will exist.  We also contend that it is conceptually unacceptable to intend that it will be unjustifiable to take a risk.  The concept of intending what is a moral issue appears to be intractable.

FRENCH CJ:   Underlying that, is it right that you submit that a charge is bad in law if it asserts a logically impossible state of mind or, alternatively, logically inconsistent concurrent states of mind?

MR ODGERS:   Yes, that is certainly a key part of our submission.

FRENCH CJ:   Is that not the logic that underpins it?

MR ODGERS:   Yes.

HAYNE J:   What is the inconsistency?  Identify it, if you would, with some care and precision, Mr Odgers, because this is a hinge about which much of your argument turns.

MR ODGERS:   Yes, I accept that.  We say that it is inconsistent to both intend that a circumstance exists and intend to be reckless about the existence of the circumstance.

BELL J:   How do you deal with section 5.4(4)?

MR ODGERS:   I will come to that in a moment because, of course, the answer that Justice Simpson gave, and I think to the extent – no, I do not think it was how he referred to it but the answer Justice Simpson gave was that the problem which she had identified did not arise in practice in this case because of 5.4(4).  I will come to that immediately after I have answered Justice Hayne’s question, if that is acceptable to your Honour.

BELL J:   I see – if there is more to your answer.

MR ODGERS:   I am sorry, your Honour.

BELL J:   I had not realised there was more to the answer.

MR ODGERS:   No.  I had not finished.  That is one conceptual unacceptability, we say.  A second is if one focuses on the concept of intending to be reckless we say it is conceptually unacceptable to intend to be aware of a substantial risk that a circumstance will exist.

HAYNE J:   But you can intend to take a risk.  It happens every Saturday at the race track.

MR ODGERS:   Yes.  Your Honour may not regard this as persuasive but we say that is a different thing to intending to be aware of a substantial risk, which of course is what recklessness is.  We also say intending to be reckless means, as defined in the Code, intending to take a risk which you, presumably, believe is unjustifiable, intending that something be unjustifiable.

HAYNE J:   You have just glossed 5.4(1)(b), have you not?  The unjustifiability is objective.

MR ODGERS:   Your Honour, it is objective when it is an element of the offence, but here you must intend that you are reckless.  You must intend that you will be in a state of recklessness which, as defined, includes both a subjective and an objective element.  You must intend the existence of both those elements of recklessness.  You must intend both the subjective awareness of a substantial risk and you must intend the lack of justifiability.  That is the consequence of intention vis-à-vis as per recklessness.  I am simply adopting a logical analysis of what it means to say you intend to be reckless.

HAYNE J:   But a necessary step in the path you have so far charted is that the intention extend to knowledge not only of circumstances but knowledge that those circumstances are objectively classifiable as unjustifiable.

MR ODGERS:   I would not use the term “knowledge”.  I am applying the concept of intention distributively to the requirement of unjustifiability.  You have to intend that it is unjustifiable.  I think your Honours would accept that that is a very strange concept.  Your Honours make take the view that my logic is flawed and that you do not have to establish that, but I am simply saying, if you have to intend an offence and you have to intend that you will be reckless, then it must follow that you have to intend that you will be aware of a substantial risk and you have to intend that it will be an unjustifiable risk.  I am simply adopting a logical analysis, which leads, if correct, to the conclusion that there are serious conceptual difficulties with charging an offence of conspiracy to commit an offence that is committed recklessly.  Now, responding to Justice Bell, the solution that Justice Simpson ‑ ‑ ‑

FRENCH CJ:   Just before we get to Justice Simpson, because that is dealing with the extended definition of recklessness, is it not?

MR ODGERS:   Correct.

FRENCH CJ:   Your argument takes into account, does it, that the intention requisite to establish the conspiracy referred to in 11.5(2)(b) is the state of mind, the current state of mind, that you have when you form the agreement?

MR ODGERS:   I accept that the intention would have to co‑exist at the time you formed the agreement.

FRENCH CJ:   Yes, and the fault elements in relation to the offence contemplated by the agreement refer to a future state of mind?

MR ODGERS:   Correct. 

FRENCH CJ:   Logically they do not have to co‑exist.

MR ODGERS:   No, and in this case it will be the conspirator’s own future state of mind, yes.  Each appellant had to intend that they would at some future time, when they dealt with the money, be reckless.  Returning again to Justice Bell, Justice Simpson considered that the problem that she identified disappeared in this case because of the availability of section 5.4(4).  I am sure your Honours have read that provision, but can I take you to what Justice Bell said?  She identified the problem – I am sorry, did I say Justice Bell said?

BELL J:   Yes, you did.

MR ODGERS:   Justice Simpson said.

BELL J:   It is the reasoning that underpinned both Justice Simpson’s judgment and the judgment of Justice Howie with which Justice Hislop agreed.

MR ODGERS:   That is correct.

BELL J:   All members of the court were agreed on two reasons as to why the count was not bad in law on its face, both that people can agree to an offence that may be committed by another with the requisite state of mind of recklessness and the extended definition of recklessness.

MR ODGERS:   Yes.  Justice Howie did not refer to 5.4(4), but I accept that he – maybe he did, perhaps I am wrong about that.

BELL J:   I think in paragraph 88 of the judgment his Honour does in terms; indeed, he sets the provision out.

MR ODGERS:   I do apologise.  I accept that, your Honour, and I am sorry I made the mistake.  My submission is that they were both wrong as to what happened in this trial.  The provision was not used in the way that they understood it.  Both of them understood that at this trial effectively the Crown case was that both appellants intended that the money would be used in a structuring offence or another kind of offence, intended that.  Justice Simpson said that.  If I can take you to 657.  Let me say, that was not how the jury were directed.

BELL J:   This is a separate point, is it not?

MR ODGERS:   No, your Honour.

BELL J:   I thought a few moments ago you were developing a submission that the logical inconsistency between the intention necessary for the offence and the offence the object of conspiracy having a mental state of recklessness created some obstacle.

MR ODGERS:   Yes.

BELL J:   Now you are moving to the factual ‑ ‑ ‑

MR ODGERS:   No, I am responding to the answer that both Justice Simpson and Justice Howie gave to that potential difficulty, which they said it did not arise in this case because the jury were directed not in terms of recklessness but in terms of intention.

BELL J:   They said the Crown’s case was.

MR ODGERS:   Yes, that is true, but one has to be very careful about what those words mean.  I am getting ahead of myself, but just so that your Honour understands where I am going, it may well have been at one point in the addresses that the Crown was asserting that the two appellants did intend that the money would be the subject of a structuring offence, but at no time did the Crown suggest that that had to be proved beyond reasonable doubt.  At no time did the judge give any direction at all about that.  At all times the jury were directed in terms of recklessness.  The judge at no time even adverted to a Crown case that there was an intention that the money be used for structuring.  The simple fact is the jury were never, either by the Crown or by the judge, told that it needed to be proved that there was an intention that the money be used for a structuring offence.

MR NEIL:   Your Honours, I am loath to interrupt, but I think my learned friend is venturing into prospective grounds of appeal for which there is no leave and he did say at one point he would come to that application.  If he proposes to go much further down this current path, in my respectful submission, that needs to be resolved.

FRENCH CJ:   Just bear with us a moment.  In relation to the two grounds for which you seek special leave, Mr Odgers, I think we ought to know first on what basis you seek that grant.

MR ODGERS:   Yes.  In respect of the third ground, which is that the judge misdirected the jury ‑ ‑ ‑

GUMMOW J:   The first question is, why it was not sought earlier, or if it was sought earlier, was it refused?

MR ODGERS:   No objection was taken to the judge’s summing‑up and ‑ ‑ ‑

GUMMOW J:   No, you have a new special leave ground?

MR ODGERS:   Yes.

GUMMOW J:   Why are we being vexed with it now?  Why was it not in the original special leave application?  What is the explanation for that?

MR ODGERS:   It was not thought of, your Honour.

GUMMOW J:   I see.

MR ODGERS:   Can I just say, in respect of that ground, what I have said to this point does not impinge on that ground, in my submission, because in respect of what was argued before the Court of Criminal Appeal, it was contended that the charges were bad in law and the answer that Justice Simpson gave was, well, the problem did not arise because, effectively, the way that the trial proceeded, the way that the Crown ran its case and, by inference, the way that the jury understood what the question it had to determine was.  It was in respect of that that I was making submissions and I respectfully submit that that arises fair and square within the terms of the first two grounds in respect of which special leave has been granted.

I accept, given what your Honour the Chief Justice has raised with me – ground 3 plainly only arises if grounds 1 and 2 fail, that is, that if this Court concluded that there is no fundamental conceptual difficulty with charging an offence of conspiring to be reckless in the shorthand terms, then we contend that when one looks at what the judge actually said, he did not say that.  He did not direct the jury in terms of intention to be reckless and therefore we say that, in essence, it is an extension of the previous two grounds in that they have focused on what is required under 11.5.  If we are wrong that what was required under those provisions is conceptually unacceptable, as applied in this case, we say that the judge plainly did not direct the jury in accordance with how he should have.

HAYNE J:   Well, do you adhere to what you say in paragraph 33 of your written submission?  I should say to you at once, Mr Odgers, that if you do adhere to that, it seems to me that the submission there made is that if the first point is good, we never get to this point, if the first point is bad, the point does not arise, the misdirection point does not arise, because you say this ground is simply a variation.  If that is all it is, why are we fussed about it, Mr Odgers?

MR ODGERS:   I had not intended to mean that simply variation in the way that your Honour has understood me to have meant it.  What I meant by it was this appeal has raised the question of what 11.5 means.  What are the elements of conspiring to commit an offence of recklessness?  What I was submitting in 33 was that once that issue has been resolved, it becomes apparent that the jury were not directed as they should have been, there has been a miscarriage of justice and applying principles in Papakosmas this Court should intervene to correct a miscarriage of justice.

BELL J:   Is not the difficulty that there was no complaint about the directions at trial?  The sole ground in the Court of Criminal Appeal was that the count was bad in law.  Each of the members of the Court of Criminal Appeal answered that proposition in two ways; that one can conspire to commit an offence, the fault element of which is recklessness, in circumstances in which the conspirators had in mind that the offence will be committed by a third party who may possess that mental state is one answer.  A second answer is that recklessness has an extended definition under the Code which, in the way the matter appeared to have been presented by the Crown, was the very way the case had proceeded in this instance, namely, that the accused intended the section 400.3 offence.

MR ODGERS:   Yes.

BELL J:   The issue with which your submissions have thus far been directed concerning the elements of the offence and where they are to be found does not direct attention to any error in the conclusion that the Court arrived at, namely that it is not bad in law to charge a count of a conspiracy to commit an offence that has as its fault element recklessness.

MR ODGERS:   The answer, your Honour, is I think the Court accepted that the first avenue of solution did not apply in this case because the two appellants were indeed the people who it was intended would commit the offence.  My submission is that their Honours were correct to say that there is a second solution, which is if you in fact do not – you seek to prove not recklessness but intention, I say there is no error there.  That is correct.  But that is not what happened in this case.  Can I just say this.  Your Honours may take the view, well then fine, if I am right that that is not what happened in this case, then the appeal may succeed.  What I am contemplating is your Honours coming to the view, accepting what I put that that is not what happened in this case, but then coming to the view that it is not a problem to direct a jury in terms of intending to be reckless even when it is your own recklessness.

Your Honours may take the view that the Court of Criminal Appeal was wrong in concluding that, other than those two solutions, there is in fact no need – that there is no problem which needs to be solved.  I am sure I have not explained that clearly.  The Court of Criminal Appeal appeared to accept that there is a problem and there are two possible solutions.  I am concerned that your Honours may take the view that there is no problem, in which case even though I can demonstrate that neither of the two solutions applied in this case the appeal will nonetheless be dismissed because there is no problem such as to lead to a conclusion that there is a conceptual unacceptability or that the charges are bad in law.

It is to meet that scenario that I have advanced this third ground, that is that even if it is acceptable to direct the jury that the appellants intended to be reckless at some stage in the future, even assuming that is acceptable, that is not how they were in fact directed.  That is the explanation for the third ground.  I cannot say any more than I have about that.

FRENCH CJ:   Just bear with me for a minute.  You will not have a grant of leave in relation to ground 3.

MR ODGERS:   Thank you, your Honour.  Do your Honours want me to address ground 4 at this stage?

FRENCH CJ:   That might be helpful, yes.

KIEFEL J:   Before you do, could I just ask you to comment upon this attempted construction of the offence the subject of the conspiracy.  Attempting to read section 11.5(2)(b) with the offence in 400.3(2), could it not be read as, “By the conspiracy the accused intend to deal with money being” – I am sorry, I am also reading in the definition of “recklessness” – “aware (at the time of the conspiracy) of there being a substantial risk that the money will become the instrument of crime and intend to take that risk (objectively unjustifiably)”.  Is that not a construction open?

MR ODGERS:   It sounds close to being acceptable, your Honour, but ‑ ‑ ‑

KIEFEL J:   Yes, shall I say it again?

MR ODGERS:   It would be helpful to me if you could.

KIEFEL J:   “By the conspiracy the accused intend to deal with money being aware (at the time of the conspiracy) of there being a substantial risk that the money will become the instrument of crime and intend to take that risk (unjustifiably objectively)”.

MR ODGERS:   I think that does sound acceptable.

GUMMOW J:   Where does that leave ground 4?

MR ODGERS:   I have got to say something about it.  I appreciate your Honour asked me to deal with it now.  Would it be helpful if I just concluded on grounds 1 and 2 before I got to it, just so that I do not divert?

FRENCH CJ:   Yes, all right, Mr Odgers.

MR ODGERS:   Returning to where I was before my learned friend raised the objection that he did, I was responding to Justice Bell and making the point that the solution which Justice Simpson advanced, in my submission, did not apply in this case.  The solution which Justice Simpson advanced can be found at pages 657 and 658 of the appeal book.  At the bottom of 657, her Honour said, the third line from the bottom:

To prove the conspiracy the Crown had to prove that the appellants agreed to commit an offence aware of the relevant circumstance.  Where (as here) the circumstance is, itself, the existence of a risk, putting the language of s 400.3(2)(c) together with that of s 5.4(2)(a) produces a result that, at first glance, might appear odd, but which is not in reality, (for reasons which will appear) untoward.

Then her Honour states what the result is.  Then she says it is conceptually unacceptable.  Then she says:

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 –

I emphasise the word “prove” –

either that the appellants intended or knew that the money would become an instrument of crime.

I accept that that is entirely correct.  What that would mean would be that even though the appellants were charged with conspiracy to commit an offence under 400.3(2) of recklessness offence, the Crown could choose to solve the problem by seeking to prove that they in substance committed an offence under 400.3(1), that is, that they intended that the money would become an instrument of crime.

KIEFEL J:   Given your agreement about these sections read together and the definition of what “recklessness” can mean, is it necessary to really go into this territory, because the definition of “recklessness” requires an intention at the time of the conspiracy that they are aware?  It is an awareness that we are involved with which is to an extent knowledge.  I think that we might be boxing at shadows.

MR ODGERS:   Your Honour, I think this has demonstrated my concern and why I wanted to run ground 3 because I think, your Honour, this demonstrates that it may be that the solution that Justice Simpson considered was needed to solve the problem may not arise.

KIEFEL J:   No, my suggestion is it is not necessary, in the sense of having to go to the extended definition, because the knowledge of which her Honour is correctly speaking is, to an extent, embedded in the definition of “recklessness” itself.  You keep speaking of recklessness as if it is something other than a level of knowledge, but, in fact, it is a level of knowledge.

MR ODGERS:   So your Honour is saying, as I understand it, that it is not necessary to go to 5.4(4), that the offence is good without any reliance on 5.4(4).

KIEFEL J:   No, what I am saying is her Honour’s reference to knowledge is correct.  It was part of the Crown case that they were aware, but that is just by meeting the definition of “recklessness”.

MR ODGERS:   No, I am sorry, your Honour, a critical point here is there is a difference between intending or knowing that it is going to become an instrument of crime and intending that there is a risk that it is going to become an instrument of crime.

KIEFEL J:   All right.  We are talking about different levels of knowledge. 

MR ODGERS:   Precisely.  Her Honour considered that the problem, which she had identified, was removed if, by reliance on 5.4(4), instead of saying you are aware that there is a risk it is going to be used as an instrument of crime ‑ ‑ ‑

KIEFEL J:   I take what you are saying, but if her Honour is correct in saying that the Crown case was knowledge, then that subsumes the question of awareness.

MR ODGERS:   Then if that is correct I accept that that is the solution.

KIEFEL J:   And the definition of “recklessness” is made out.

MR ODGERS:   Correct, but, of course, I do not accept that that is what happened here.

BELL J:   Is not the difficulty that the only point that was taken in the Court of Criminal Appeal was a point that the indictment was bad in law.  Justice Simpson at paragraph 24 of her judgment, coming to a conclusion that is, as I would understand it, the same as the conclusion that Justice Howie, with whom Justice Hislop agreed at paragraph 89 of the judgment, responded to the sole ground that was taken before them explaining why it was that the count was not bad in law, taking into account that there was not an inherent inconsistency in having a requisite intention for a conspiracy in relation to an object of a conspiracy which had as its fault element recklessness.  That was the issue with which the court was concerned and that is the issue that it dealt with and, as I understand it, you accept the correctness of the court’s conclusion.

MR ODGERS:   No, I do not accept the conclusion.  My submission is Justice Simpson was correct to say that there is a conceptual problem.  She said the problem does not arise in two scenarios where, if somebody else is going to commit the offence and, secondly where the Crown relies on 5.4(4) to prove intention, as distinct from recklessness - I accept both of those propositions are correct and at the end of the day the dispute is, the proposition that we advance is she was wrong to say that the Crown in this case sought to prove intention.  They did not.  They did not seek to prove intention that the money be used in the structuring offence.  At all times the Crown case was “We have to prove that they were aware of a risk that it would be used in a structuring offence or some comparable offence”.

BELL J:   Turning to the majority at paragraph 89, one finds reasoning that mirrors that of Justice Simpson at the point that you have taken us to.

MR ODGERS:   With respect, no, your Honour, because Justice Howie there says:

knew that there was a risk that the money they dealt with would become an instrument of crime.

It is a different analysis.

BELL J:   In any event, let us be concerned with the reasoning of the majority for present purposes.

MR ODGERS:   Yes, your Honour.

BELL J:   From there, Justice Howie goes on to look at the way the case was put and to reject the contention that the count was bad in law.

MR ODGERS:   Your Honour, at paragraph 100 his Honour does appear to adopt the same reasoning as Justice Simpson.  He says:

The Crown was alleging that the appellants agreed to deal with money received or to be received from Z knowing that it was to be used as an instrument of crime.

So that is the analysis of Justice Simpson, that the Crown case was not awareness of a risk, but knowledge that it was to be used as an instrument of crime.  So at that point his Honour does appear to adopt a similar process of reasoning to the conclusion of Justice Simpson.  Our response is the same.  Both of their Honours were incorrect, that was not the Crown case.  As Crown cases should be understood, a Crown case is “this is what we contend, you would be satisfied of beyond reasonable doubt as having been proved, and a judge so directing a jury, you must find that fact proved beyond reasonable doubt before you can convict.”  That is what a Crown case means.

BELL J:   Where in the discussion of the Crown case that is found in the reasons of the majority beginning at paragraph 91 and following is the flaw that you identify?

MR ODGERS:   Paragraph 100 leading into paragraph 101.  His Honour is proceeding on the basis that it was the Crown case that they intended that the money would be used as an instrument of crime and his Honour concluded that that meant that there was no problem.  That appears to be his Honour’s reasoning, although I have to say that paragraph 101 is not precisely clear, that I read the last sentence of paragraph 101:

knowledge of the existence of facts that amounted to a conspiracy to commit the offence charged.

I read that in the context of paragraph 100 to mean knowing that it was to be used as an instrument of crime and so, as I said, we accept that if that was the Crown case, if that concept is properly understood, there would be no problem in this appeal, in this conviction and ‑ ‑ ‑

BELL J:   Do you propose to make that good by taking us to the directions which the trial judge gave which you say ‑ ‑ ‑

MR ODGERS:   Yes, that is what I had proposed to do, if I am allowed to.  If I am not, I am not.

BELL J:   How was this conducted in the Court of Criminal Appeal?  One finds reference, in Justice Howie’s judgment, to the way the Crown case was presented.  Now you seem to be moving into your ground ‑ ‑ ‑

MR ODGERS:   Your Honour, just so there is no confusion about what I am saying, I dealt with this in the reply at paragraphs 2, 3 and 4.  That is the submission.  If I am allowed to advance it, I will.  I guess it is a question of whether or not your Honours want me to go to what was said in the summing‑up.

BELL J:   I want to understand the legal error in the judgment.

MR ODGERS:   It was a factual error.  I think at the end of the day they believed that the Crown case in the sense that the Crown ran its case on, “We will prove beyond reasonable doubt that these appellants intended to use the money in a structuring offence” and assumed that the jury were directed in those terms that “You have to be satisfied that they did intend to use it for a structuring offence”, when it is clear, in my submission, beyond doubt that that is not what the Crown case was at the end of the day and it was not how the jury were directed at the end of the day.  The jury was always directed in terms of recklessness.

FRENCH CJ:   I presume we are addressing current ground 3?

MR ODGERS:   No, your Honour, I do submit that this goes to grounds 1 and 2. 

FRENCH CJ:   Yes, well, I am looking at the numbering of the grounds on the amended ‑ ‑ ‑

MR ODGERS:   I do apologise.  Yes, I am sorry.

FRENCH CJ:   We are looking at the question of whether it was:

bad in law for the Crown under the Commonwealth Criminal Code to charge a conspiracy to commit an offence the fault element of which is recklessness.

Secondly:

The Court of Criminal Appeal of New South Wales erred in its characterization of the physical and fault elements of the offence –

Now, those two questions do not, as a matter of logic, seem to require an exploration of what particular direction was given to the jury. 

MR ODGERS:   No, I can see the problem.  The problem with the grounds has always been something that has been apparent to me.

FRENCH CJ:   In any event, they are the grounds.  They are the parameters of the debate.

MR ODGERS:   Yes.  Well, I cannot say any more than I have about the issues.  At the end of the day my submission in respect of the grounds for which special leave has been granted is that as the case was presented to the jury the charge was conceptually unacceptable because it was one in which neither of the two solutions posited by the Court of Criminal Appeal applied.  That is the submission I make.  I think that is all I need to say about those two grounds. 

That means I have to now seek leave in respect of the fourth ground in respect of which we have sought leave.  This, we say, falls fairly and squarely within the principles of Crampton, Fingleton, Giannarelli.  If the

ground is correct, that is, the money could not in law be an instrument of either of the crimes or groups of crimes particularised by the Crown, then the appellants could not be guilty of the offence with which they were charged.  It would be a complete defence, we say, a complete answer to the charges.  If we need to go further, we say that the issue raised is plainly of general importance. 

It has very broad implications whether or not money, the subject of a structuring offence or money the subject of a taxation evasion, an attempt to evade tax or money which is brought into Australia in breach of reporting requirements or taken out of Australia in breach of reporting requirements, if every time somebody does something like that in respect of money, it is concluded that the money is an instrument of those crimes, then the result will be that that person will be guilty of extremely serious offences with extremely high maximum penalties and inevitably the money, no matter whether it is lawfully obtained or not, will be automatically forfeited under Commonwealth proceeds of crime legislation.  It makes this a very important issue so we would say that that is another reason why your Honours would grant special leave.

KIEFEL J:   I may have misunderstood the argument in this respect.  I had understood it to be that the structuring offence, or the way in which it was an evasion of reportable taxable income was in fact the dealing.  Therefore it could not also become the instrument of crime.  That is not the argument?

MR ODGERS:   That is not correct.

KIEFEL J:   Thank you.

FRENCH CJ:   Perhaps we will hear from Mr Neil on your application.

MR NEIL:   May it please, your Honours, the application is opposed.  May I submit it is opposed as strongly as we possibly can.  We concede that the Court has jurisdiction to entertain the ground, but we submit, firstly, that there is an onus on the applicant to establish unequivocally exceptional circumstances.  That has not been done.  There is nothing, we would submit, exceptional about the situation compared with those that arose in cases such as Crampton, Fingleton and Giannarelli.  We submit further that none of those cases sought to raise for the first time in this Court significant questions of statutory interpretation.

The points my learned friends now seek leave to agitate go to the very core of the money laundering offence provisions in Division 400.  They were never hinted at before the very learned trial judge.  They were never hinted at before the Court of Criminal Appeal.  There was an original application for special leave which was not pursued.  When it was renewed

we did not oppose it, that is it being argued.  It was not hinted at there, and the first we became aware of it was when it was put into our learned friend’s written outline shortly before the hearing of this appeal.

My learned friend – and I will place this on the record – in an oral conversation at the special leave hearing adverted to me the possibility that he may seek to agitate such a ground but the fact was he did not do so.  We took it, therefore, as something that was not going to be raised.  In cases such as Crampton, Fingleton and Giannarelli there were really exceptional circumstances where ironclad defences came up that were simply unarguable that did not in any way, we say, relate to the type of situation that arises here.

We say that the fact that it is only now that the point is sought to be raised really is illustrative more of a clutching at straws than – in other words, to bolster grounds 1 and 2 of the appeal rather than seeking to raise an issue that this Court in the public interest would be required to take on board for the first time here without the benefit in particular of intermediate appellate court consideration.  May it please, your Honours.

FRENCH CJ:   Thank you, Mr Neil.  Mr Odgers, do you want to say anything briefly in reply?

MR ODGERS:   No, thank you, your Honour.

FRENCH CJ:   The Court will adjourn briefly to consider the application.

AT 11.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.36 AM:

FRENCH CJ:   Yes, the application for special leave to add ground 4 will be refused.  The Court has not had the assistance of the Courts below on a point which may be of importance to the administration of criminal law.  Is there anything further then, Mr Odgers?

MR ODGERS:   No, your Honour.

FRENCH CJ:   Yes thank you, Mr Neil.

MR NEIL:   May it please, your Honours.  Your Honours may have gathered that fundamentally on the section 11.5 issue, in this matter the respondent adopts the submissions of the appellants in the matter of RK and LK.  The respondent here and the appellants there is effectively the Commonwealth Director of Public Prosecutions who really can only speak with one voice.  We do submit that Justice Howie was correct, and Justice Hislop agreed with him.  We submit that her Honour Justice Simpson was not very far, if at all, removed in terms of any significance that bears upon this case from the majority.

I would put this submission to your Honours, that my learned friend, Mr Odgers, submitted to the Court yesterday that the critical issue is how does section 11.5 apply in this case and we submit that on the facts of this case and the applicable law, the exploration of that question really becomes unnecessary because of the particular facts of the Ansari matters, of the way the trial was conducted, of the way the parties at the time knew and understood that it was conducted, and of the way the learned trial judge directed the jury, which indeed focused substantially in terms of recklessness on the extended meaning of “recklessness” in section 5.4(4).

Now, your Honours may have noticed that in Justice Howie’s reasons in Ansari - and may I refer to the report in 70 NSWLR, commencing at paragraph 90 under the heading “The trial” - Justice Howie referred to the Crown opening and how the Crown explained structured transactions.

I am certainly not going to read those very long passages to your Honours, but they go pretty well for two and a half full pages, but the point was that his Honour understood, as was the case, that the trial was always put forward not merely in respect of these appellants, but also in respect of their brother, in respect of whom the jury could not agree, that firstly it was the appellants here who dealt in the money by receiving it from the man Z.

The Crown proved that they received hundreds of thousands of dollars in several cash deliveries totalling approximately $2 million, in a period of a few days, and that virtually within a week of that money being delivered into their money exchange business premise in Sussex Street, Sydney, dozens and dozens and dozens of cash deposits were made by an admitted agent of the appellants and Mr Habiburahman into various banks in and around Sydney in all sorts of names, each of them being under $10,000.  There was evidence, of course, that the appellants were licensed cash dealers.  There was evidence that they had had communications over the years before these events with representatives of AUSTRAC, and there was no issue that they knew, frankly, what constitutes structuring of deposits and that to do that with a view to evading reporting conditions was the section 400.3(2) offence.

All those matters at the trial were uncontroversial.  Although it did not find its way into the appeal books, there is reference in Justice Howie’s reasons to exhibit DX and one other exhibit which were schedules which, after the Crown had produced very bulky documentary evidence, were the subject of agreed admissions by these appellants and their brother that the man Habiburahman had made all these deposits as their agent.

Now, the factual difference which I think your Honour Justice Hayne adverted to so far as the brother is concerned, who for convenience was referred to as Mr Jaleel Ansari, is that he had, on the evidence, a money exchange business located in a suburb of Paris.  There was telephone intercept evidence between the brothers in, I think, Hindi.  It was translated.  There was lots of translation material and so on and so forth.  The fact of the matter was that the quality and the volume of the Crown evidence available against Mr Jaleel Ansari was less than against the appellants.  He was simply unfortunate enough to make a visit to Sydney around about the time that Z came back in July 2004 and was arrested.  He was committed for trial.  A prima facie case was found.  The jury could not agree. 

However, as Justice Howie pointed out in the decision in Ansari, the Crown case against Mr Jaleel Ansari was the same, that is, it was put by the Crown to the jury that he had knowledge that the bulk of the money, the $2 million that actually was delivered, was structured by his brothers and the Crown relied on not merely in the alternative a structuring offence or a tax evasion offence, the learned trial judge dealt with this and it is in his summing‑up in the appeal books, but what was put to the jury in effect was that, as a matter of ordinary common sense, they being members of the community, they would have no difficulty in concluding that when a stranger to cash dealers comes in and delivers $2 million in canvas bags over three or four days, which they then embark upon structuring, as well as knowing and intending that it be used as part of a structuring offence, they would have an awareness, a conscious awareness, at the time of their agreement to deal in the money by receiving it that it may well also, in the manner in which they are dealing with it afterwards – that is, in the manner in which they dispose of it, which is not the relevant dealing for the purpose of the 400.3 offence – be aware that that could lead to facilitating the commission by someone of an indictable tax evasion offence.

As for count 2, the position was precisely the same.  Indeed, your Honours may recall from Justice Howie’s short recitation of the reasons that some months later Z came back – he was an Israeli national – to Sydney.  He went into the Sussex Street shop.  He was captured on a listening device having a conversation with both appellants, the terms of which were that he would be delivering another two or three million.  One of them asked in the presence of the other, that is the appellants, how much, and the answer was, “Two or three million.  It will take a bit longer this time because of the amounts”, something to that effect.

So the only thing that happened in the meantime was that Z got himself arrested, unexpectedly it would seem from the point of view of the AFP.  He just happened to, it would seem – and this is irrelevant other than as a matter of background, I do not rely upon it – that he was sourcing the second lot of money from a large drug transaction and he got busted in connection with that.

FRENCH CJ:   Perhaps we can focus on the issues?

MR NEIL:   Indeed your Honour, I am diverting.  So it leads me to put this submission to your Honours, that in relation to section 11.5(1) and (2), I put my primary submission, I will not repeat it, but wherever the elements repose of the offence – and no doubt an important issue in the other matter RK and LK – the position here is that within section 11.5 there are elements or preconditions or both to the proof of guilt that was satisfied in this case and they were all encompassed in the way the Crown case was framed, in the way that the Crown case was presented.  Justice Howie pointed out that before the Court of Criminal Appeal there were not the Crown and defence closing addresses.  They have been put in the appeal books.  I do not propose to take your Honours to them unless there is a particular request that I do, but I will put the submission with some confidence that there was no inconsistency between what was opened by the Crown and what was closed. 

I know we are not getting into the area of misdirection, but I would wish your Honours to be aware, because it is apparent within the appeal books, that his Honour specifically directed the jury, both with respect to the potential structuring offence relevant to section 400.3(2) and under the definition of “instrument of crime” in section 400.1 facilitating the commission of indictable offence in relation to the prospect of an indictable tax evasion offence, that it was always the Crown case that all of the accused, including the appellants, acted at all times with complete consciousness and awareness, at the time they made their agreement for count 1 with Z to receive the money, the relevant dealing in the money, and at the time they made their agreement with Z for count 2 to receive further money, as to what they intended and knew they were going to do with it. 

It is the case that his Honour referred to and directed the jury in terms virtually from the definition in section 400.1 of the meaning of “instrument of crime” and all the relevant criteria, but there is nothing about how Justice Howie and, of course, Justice Hislop agreeing or Justice Simpson understood and expressed their understanding of the Crown case that is in any way inaccurate.

They may – Justice Simpson and Justice Howie – use some different phraseology.  That is to be understood.  Justice Simpson was keen to point out the conceptual difficulty had the Crown case been a case of conspiring to commit an offence, the fault element of which was recklessness simpliciter, because that was a powerful part of the argument put to the Court of Criminal Appeal by the appellants at the appeal.

We have submitted that as before the Court of Criminal Appeal and with the utmost respect to some extent before your Honours here, the appellants have entirely failed to come to grips with the extended meaning of “recklessness” in section 5.4(4).  Their Honours did not fail to come to grips with it.  It was blindingly obvious, as it was to the learned trial judge, with respect, that it was the key to the Crown case and that was the Crown case presented and proved.

We have put it in the written outline and I am sure your Honours are familiar with it.  I will not traverse it, unless there are particular requests.  But we do rely from the decision of the Court of Criminal Appeal in RK and LK in what Chief Justice Spigelman said there at paragraph 37, that when he was addressing recklessness in his discussion of Ansari:

a lower level of culpability can be made out by proving a higher level of culpability.

The proof of both, intention and knowledge, satisfied the requirement that the Crown proved that these appellants were reckless in the relevant sense at the time they made each of their conspiratorial agreements between each other to deal in the money.

CRENNAN J:   Do you have anything to say about Mr Odgers’ suggestion that the Court of Appeal was mistaken about the way in which the Crown case was run?

MR NEIL:   Yes.  I say this with the utmost respect.  I was the Crown Prosecutor.  I was there.  My learned friend, Mr Lowe, was for one of the present appellants, Mr Azees Ansari.  We put on another aspect that does not need to be argued that there were very experienced defence counsel for all accused and I put that my learned friend is simply mistaken, that there was no misunderstanding whatsoever. 

It may be that my learned friend suggests, or may suggest in reply perhaps, that because the learned trial judge addressed the language of firstly the 11.5 conspiracy charge and addressed and directed the jury on matters of language in the 400.3(2) charge, and also without telling the jury the section names, addressed the offence of structuring under section 31(1) of the Financial Transactions Reports Act 1988 and addressed the question that there can be indictable offences of tax evasion, because he canvassed those issues as we, the Crown, submitted was appropriate for his Honour to do, that somehow or other because they are referenced within the learned trial judge’s charge to the jury, that that changed the character of the Crown case. 

With the utmost respect to my friends, it did not.  Your Honours may also have noticed, and they appear and I am not going to go through them but your Honours will have seen, no doubt, at the end of volume 1 of the joint appeal book commencing at page 298, about 19 pages of written directions of law that his Honour Judge Woods QC handed to each member of the jury, and without wanting to take unnecessary time, if I could merely, by way of illustration invite your Honours to glance at page 304 under “Element 6”.

Your Honour sees there – his Honour tells them what an instrument of crime is, but very importantly – and we submit that the significance of this cannot be underestimated – what his Honour did, as he should have done, and with the utmost respect what we submit our learned colleagues have not done, his Honour addressed the law to the jury and charged the jury as to the law in the context of the facts of the case.  So there the man beginning with Z – there is a non‑publication order in respect of his name – under “instrument of crime” in the second paragraph – his Honour reminds the jury what the allegation was.  In the final paragraph on that page he directs them:

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 on page 305:  “Unjustifiable Risk” – the second full paragraph:

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 ‑

and so on.  There are other passages, your Honours, to that effect throughout the written directions.  May I just say to your Honours, because it is apparent in the appeal books themselves – and could I pause to invite your Honours just for a moment to glance at the very end of the respondents’ written outline of submissions.  They bear a filing date of 24 November.  They have appended to them from elsewhere in the appeal books – no, I beg your Honours’ pardon; this is something we put in.  I do not think they are in the appeal books - two pages, a transcript page of the trial - 3690 at the bottom, 28 July 2006.  Then the next hearing day - 31 July, page 3691.

Your Honours see a reference there to his Honour distributing to counsel MFI 188, a draft document of written directions.  It is a draft document of what appears at the end of volume 1.  Two or three days before that had happened – and this is in the appeal books – his Honour had – there had been much legal debate, there were many interlocutory judgments on the way through, which is not uncommon – but his Honour had indicated to counsel – he had invited submissions on how he should charge the jury.  All counsel – the Crown and all defence counsel – gave his Honour submissions.

He then orally articulated much of what became MFI 188.  He handed it out on a Friday and we came back on a Monday.  There was handed up on behalf of Mr Azees Ansari MFI 189, a document almost identical to the written directions actually given to the jury, with a few notes on but none of them going to any of the issues in any way raised in the appeal before the ‑ ‑ ‑

BELL J:   Mr Neil, I must say, some of this seems to be directed to the ground in respect of which special leave has not been granted.  Am I wrong about that?

MR NEIL:   I had not intended that.  I thought my learned friend, in support of his grounds 1 and 2, was contending that, however it came about, the directions that the learned trial judge gave about 11.5 were wrong.  But your Honour is right, I have strayed into that area and I will move immediately away from it.  In any event, to the extent that it is relevant to grounds 1 and 2 the point has been made and I am most grateful to your Honour. 

Your Honours, yesterday in the other matter my learned friend, Mr Game, handed up a document at the request, I think, of your Honour Justice Hayne and we have taken the liberty in relation to this matter of preparing a short document.  My friend has not seen it.  It was brought in, I think, after I came in.  I will give my friend a copy.  Might I have your Honours’ leave to distribute this as a convenient checklist of what we say is the interrelationship between 11.5 and 400.3?  When your Honours see it, in paragraph (v), if your Honours receive it, there is a reference to a “relent offence”.  I am sorry, it is a typographical error.  It should be a “relevant offence”. 

FRENCH CJ:   Yes, perhaps we will receive that.

MR NEIL:   And if I have your Honours’ leave, might I just – and having invited your Honours to glance at this and answer any questions, that is likely to be the respondent’s submissions.  We say these are the criteria and they were satisfied.

FRENCH CJ:   So that is underpinned by or supports the proposition that the indictment, on its face, is not bad in law by reason of the allegation of an offence involving element of recklessness because it can be teased out, as it were, in this way?

MR NEIL:   Yes, and that was the case ‑ ‑ ‑

FRENCH CJ:   And that is sufficient answer today so far as you are concerned?

MR NEIL:   Indeed, and that is our summary answer to the grounds of appeal before your Honours.  Unless there are any matters your Honours wish to raise, those are the respondent’s submissions.

FRENCH CJ:   Thank you, Mr Neil.

MR NEIL:   May it please the Court.

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   The bulk of my friend’s submissions were that, in essence, I was mistaken about what I contended happened in this case.  He took you to the written directions of the judge and those written directions confirm what I said – that the jury were directed that the Crown case was that the appellants intended or were aware of the risk that the money would be used as an instrument of crime.  The jury were never directed that it had to be proved that the appellants intended that the money would be used as an instrument of crime.

I am at risk of venturing into territory in respect of which special leave has not been granted, but I felt I needed to reply to that substantial part of my friend’s submissions and make it clear that, as I have said, both Justice Simpson and Justice Howie were wrong, with great respect, in saying that the Crown case – in the sense of a Crown case in respect of which the Crown accepts it has a duty to prove – was that the appellants intended to use the money for structuring offences and/or tax evasion or failure to report offences relating to tax.

In respect of the document, I understand from what fell between the Chief Justice and my friend that this relates to the question of whether the

indictment was bad.  It is true that this is effectively how the indictment put the case – that is, conspired to commit a 400.3(2) offence.  What is listed here are the elements, not of the conspiracy offence; they are the elements of the 400.3(2) offence.  In truth, although I am in danger of going into territory I may not be permitted to, that is how the jury were directed.  At the end of the day, they were directed in terms of the elements of the 400.3 offence.  They were never directed in terms of the elements of a conspiracy to commit that offence.

FRENCH CJ:   Irrespective of what the jury were directed, the real issue raised by your first ground of appeal is whether it is bad in law to conjoin the offence of a charge of a conspiracy with a substantive offence under 400.3(2).  That is what that document seeks to answer, I think, is it not?

MR ODGERS:   Yes, I understand.  I do not have anything further to say about that.  Thank you, your Honour.

FRENCH CJ:   Thank you.  The Court will consider its decision.  The Court adjourns until 2.15 this afternoon.

AT 12.05 PM THE MATTER WAS ADJOURNED