Ansari v The Queen

[2009] HCATrans 313

[2009] HCATrans 313

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 WEDNESDAY, 2 DECEMBER 2009, AT 3.06 PM

Copyright in the High Court of Australia

__________________

MR S.J. ODGERS, SC:   May it please the Court, I appear for both appellants with my learned friend, MR W.P. LOWE.  (instructed by Ford Criminal Lawyers)

MR P.W. NEIL, SC:   May it please, your Honours, I appear for the respondent in each appeal.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, I propose to first address the two grounds of appeal in respect of which special leave has been granted and then, after I have made submissions on those, to turn to the grounds where we seek special leave pursuant to the summons which was filed in the Court.  If I can take you to the indictment in respect of the offences, it is found at the appeal book, page 12, volume 1.  May I say by way of introduction that much of what I am going to say, of course, has been dealt with to an extent by what has been said in the preceding matter and I certainly do not want to repeat everything that was said.  I will try to only refer to matters which have not been perhaps referred to in the way that I would submit matters should be taken into account and, of course, there are differences between the two cases, which I need to highlight.

In respect of the indictment your Honours will see that the two appellants and a third person, a brother, were charged with conspiring with each other and with another man and diverse others to deal with money.  So the same as RK and LK conspiracy to deal with money under section 400.3(2).  Value of one million or more, again the same, but where there was a risk that the money would become an instrument of crime which, of course, is different from RK and LK where it was an element that it was proceeds of crime.  Here the element under 400.3(2) is not that it was proceeds of crime, but rather a risk existed that it would become an instrument of crime and where the appellants and the third person were reckless as to the fact that there was a risk that the money would become an instrument of crime.

So in contrast with LK and RK, it is not reckless as to the money being proceeds of crime, it is reckless as to the risk that the money would become an instrument of crime.  The second count was in essentially identical terms.  I have in what I have said referred to section 400.3(2) but I will just take your Honours, if I might, briefly to that.  Your Honours have already looked at this provision, of course, in some detail, but:

(a)the person deals with money or other property; and

(b)either:

(i)      the money or property is proceeds of crime; or

(ii)there is a risk that the money or property will become an instrument of crime –

Well, of course, in RK and LK it was (i).  Here it is a risk existed that “the money or property will become an instrument of crime”.  We would say that also is a circumstance, a physical element of circumstance, just as where the money is proceeds of crime is a physical element of circumstance –

(c)the person is reckless . . . the fact that there is a risk that it will become an instrument of crime –

So there is a fault element of recklessness but it applies in a different way and then (d), the money is $1,000,000 or more.  The term “instrument of crime” is defined in section 400.1(1).  It defines “instrument of crime” to mean:

money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

The Crown in the case of Ansari particularised what is commonly called “structuring” as one of the possible crimes that the money could become an instrument of.  That is an offence under section 31 ‑ ‑ ‑

FRENCH CJ:   That was by reference to a specific provision of the Financial Transactions Reports Act, was it not?

MR ODGERS:   That is correct, your Honour.  I will not take you to the details of that structuring offence at this stage.  I do not think it is pertinent to the issues that have to be dealt with under these two grounds.  It was suggested that an alternative possible area of criminality – it was never specified – was something to do with failing to report money in respect of potential tax offences, but again I will not go to that at this stage at least.

Of course, the first and critical issue is how section 11.5 applies to this offence and, as your Honours appreciate, Justice Howie held in the Court of Criminal Appeal with one other member of the court agreeing with him that the only physical element in 11.5 was to be found in subsection (1) and therefore by implication, that the requirements of subsection (2) were not elements.  They are, to use the language I think has been used a number of times, exegetical of the element to be found in subsection (1).  I will take you to what Justice Howie said in that respect.  It is in volume 2, page 672, paragraph 63, line 40.  If your Honours could read that paragraph.

So in his summary his Honour concluded that there was only one physical element.  It was found in subsection (1).  It is created by the words “conspires to commit an offence”.  Since there was no specified fault element for that physical element he concluded that pursuant to section 5.6(1) it was appropriate to deem a fault element of intention and, of course, that analysis led ultimately to the view that subsection (2) did not create any elements.  You have already had submissions in RK and LK about this issue.  I will not repeat, as I have said ‑ ‑ ‑

GUMMOW J:   What we have not had is an understanding given to us as to what 1.1 means in this piece of legislation.  What is meant by “codification”?

MR ODGERS:   I am sorry, your Honour.

GUMMOW J:   Justice Howie is right.  You cannot just read 11.5(1) unless you know what “conspires” means.  You cannot get that from the walls of this statute.

MR ODGERS:   Your Honour, let me make clear my submission on this.  In my submission, the word “conspires” does not constitute an element of the offence.  Subsection (1) is simply a provision which effectively creates the maximum penalty for an offence.  It does provide one element which relates to the fact that the offence which you are allegedly conspiring to commit must be one carrying a particular level of maximum penalty, but what I will call the critical elements of the offence are to be found in subsection (2).  So the word “conspires” there has no effective function in terms of ‑ ‑ ‑

FRENCH CJ:   Is that how the officers approached it?  I thought that the explanation was rather in terms of separating out agreement and intention.  That was the purpose of ‑ ‑ ‑

MR ODGERS:   With respect, no, your Honour.  That discussion – I will go to it very shortly – was a discussion in respect of subsection (2) and they were referring to subsection (2)(a) ‑ ‑ ‑

FRENCH CJ:   Yes, that is what I am asking about.

MR ODGERS:   Yes, agreement, and (2)(b) which was intention.  Indeed, with great respect to Justice Howie, he misunderstood what the officers committee were saying there.  I will go to that very briefly.  Essentially I have tried to answer Justice Gummow’s proposition by saying that the word “conspiracy” in 11.5(1) or “conspire” ‑ ‑ ‑

GUMMOW J:   My real question is what this word “codification” means in 1.1.

MR ODGERS:   I am sorry.

GUMMOW J:   Unless we understand that, we cannot construe the rest of the Act.  Is it like the Bills of Exchange Act which is said to be a code in the real sense?

MR ODGERS:   In my submission, yes.  This is a code in the real sense in that the provisions of the Code comprehensively state the elements of the offences created and that in general you do not go to the common law to assist you to interpret or construct the words of the Code.

FRENCH CJ:   But does 1.1 actually say anything other than that all offences against laws of the Commonwealth are statutory?

GUMMOW J:   Exactly.

HAYNE J:   Well, 2.1 may say more.

MR ODGERS:   Section 2.1 is the one that I would rely on as indicating ‑ ‑ ‑

GUMMOW J:   We know from Kidman’s Case in 1915, or whenever, that there is no common law crime against the Commonwealth.  So we are necessarily in the realm purely of statute.

MR ODGERS:   Yes.  I would rely on the use of the term “codify” in 2.1 as indicating that this is more than a creation of statutory criminal offences.  It goes beyond that.  It attempts to create a code in the sense that I have just articulated.

FRENCH CJ:   Of a code for criminal responsibility.  That is what 2.1 is dealing with, is it not?  It is not talking about a code of offences.  It is the purpose of this chapter, which is “General principles of criminal responsibility”.

MR ODGERS:   Yes. I take your Honour’s point. Of course, after Chapter 2 there are other chapters which are said to be part of the Criminal Code but I do not know that it makes any significant difference to my argument. If we are only talking about Part 2, I am content to say that that is a code because of course 11.5 falls within in it.

BELL J:   Accepting that Chapter 2 is a code dealing with the general principles of criminal responsibility, when one turns to 11.5, is it right to have regard to the pre‑existing body of common law concerning the offence of conspiracy in order to understand certain of the terms that are used, including, for example, “overt act”?

MR ODGERS:   Yes, but we say it goes far beyond that general statement to go to the word “conspire” in subsection (1) and say that is it; that is the offence creating provision, that is the element and we will bring in the whole common law of conspiracy into that word.  That is, we say, the mistake that Justice Howie made and I will attempt to defend that proposition in the next few minutes.

HEYDON J:   Would you just explain, Mr Odgers, why your clients are better off on your construction than they would be on Justice Howie’s?  I mean, is it possible for you to win on either or is it essential for you to have your construction accepted with a view to ‑ ‑ ‑

MR ODGERS:   I am not going to give you a very clear answer to that, your Honour.  The best I can do is to say that because Justice Howie focused on the common law, that he then came to a view about what was required for conspiracy to commit this offence and we say he did not devote the necessary attention to 11.5(2)(b), intention to commit an offence, which when you look at in terms of Part 2, leads to a conclusion which we say supports our position.  So true it is that Justice Howie might have done both, that is, looked at the common law through subsection (1) and then turned to (2)(b). 

It may be that one answer, your Honour, is what fell from Mr Game earlier.  His contention is that (2)(b), because it is not an element, you do not apply the definitions of intention and recklessness and so on in the earlier part of Chapter 2 to those words like “intention” when they appear in subsection (2).  That is certainly an area of departure between what I will call the position that Mr Justice Howie adopts and the Crown adopts in RK and LK and the position we adopt.  Whether that, in practical terms, will affect the outcome of this appeal I will attempt to say that it does, but I will have to leave that for a moment, if I might.

GUMMOW J:   With reference to what Justice Bell is asking you, there may be some assistance from Justice Windeyer in Vallance v The Queen on the Tasmanian so‑called Code in 108 CLR 56 at 74 to 76.

MR ODGERS:   I do not have that, your Honours, but there are ‑ ‑ ‑

GUMMOW J:   You can have a look at it overnight.  It may be of some help.

MR ODGERS:   I can, yes, thank you for that.

FRENCH CJ:   I think the notion was the Tasmanian Code was written on what they call a palimpsest and the other is on a tabula rasa.

MR ODGERS:   I will look at that very carefully, your Honours.  There are, of course, a number of statements in this Court about interpreting criminal codes, the Griffith’s Code in particular.  We have put on the list of authorities the case of Boughey where Chief Justice Brennan provided a general statement which we adopt in respect of the interpretation of a code.

GUMMOW J:   The trouble is you cannot just use this word “code”, you see.

MR ODGERS:   I understand that, your Honour.

GUMMOW J:   The question is, what does the legislature mean by using it in this Act?

MR ODGERS:   Well, to be quite honest, your Honour, I was not intending to place any great reliance on the concept of “code” other than to adopt a general principle that one looks at the words and does not necessarily look at the common law, subject to what Justice Bell has said.  But I have, in our written submissions, referred to the proposition which Justice Spigelman advanced in a case called JS where he said the primary function of a code is to comprehensively state all the elements and we say that we should look at 11.5 in that way.  But, I am getting distracted from the key ‑ ‑ ‑

FRENCH CJ:   It may be that some of the language that he has used, some of the words that he used are not understood by simply looking up a dictionary and going through the normal process of statutory interpretation.  They carry some common law baggage with them, but that does not make a general statement about the character of the code.  It may be that in most respects it is self‑contained, in another respect it brings in a little bit of the common law universe.

MR ODGERS:   The term of “overt act” I think is a very good example of where one would really need to have some understanding of the common law background to understand what was meant by that term.

BELL J:   Another example of it may be subsection (6) which provides that:

A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so. 

That is a singular provision, unless one understands a body of law concerning conspiracy, one would think.

MR ODGERS:   Yes.

GUMMOW J:   You cannot really understand 11.5(3)(b) unless you appreciate, I think, O’Brien v Dawson 66 CLR 18 which seems to say a body corporate could not conspire with its directors. This seems to say they can now.

MR ODGERS:   I am not sure I would necessarily endorse what your Honour said.  I would submit that you could read those words and you would not really need to go to the common law to assist you to understand what is said there.

GUMMOW J:   But you know what the mischief was.

MR ODGERS:   I accept that, your Honour.  Can I then return.  I adopt what Mr Stratton and Mr Hughes have said about these issues in the other matter, particularly what Mr Hughes said about the relevance of section 3.2 which talks about what needs to be proved to make somebody guilty, providing assistance and understanding what 11.5(2) is doing, but what I want to focus attention on is the two matters that Justice Howie relied on for his interpretation. 

If you look at page 673 of the appeal book, the first thing that Justice Howie referred to to support his interpretation or his approach was what the criminal officers committee said in their report.  I do not think anyone has actually taken your Honours to that report and I think it would be, with respect, helpful to look at what the officers said.  Your Honours can read what Justice Howie has extracted.  In essence, what Justice Howie is contending there is that those paragraphs that he has extracted support a proposition that the only physical element in 11.5 is to be found in subsection (1).  In my respectful submission, nothing could be further from the truth.

If I can take you to the final report of the criminal law officers committee, December 1992, what I propose to do is first take you to what is said about conspiracy, but then I will take you to some of the things that are said about the other provisions dealing with complicity and incitement and attempt which have been referred to in the arguments before your Honours.  The conspiracy discussion is to be found at page 97 of the materials.  Your Honours will see at page 97 the officers committee begin by saying, “The crime of conspiracy has attracted a great deal of criticism.” 

If you look on page 96, you will see what the committee proposed and your Honours will see when you look at that that it is essentially, in substance, identical with what is now found in 11.5.  One important qualification is that subsection (7A) was subsequently added, as your Honours know, and therefore (2A) was also added.  Importantly, your Honours will note that the numbering system is different.  This is significant because, as we will see in a moment, what is now 11.5(1) is referred to as 405.  What is now 11.5(2) is referred to as 405.1.

Now, on page 97 the committee discusses various issues relating to conspiracy, and I will not read any of that.  But over on 99 your Honours will see that at point 2 – bearing in mind this is in the context of a general discussion about what is proposed – in the first full paragraph it says:

Section 405.1 dot points one and two were redrafted to more clearly separate the agreement component –

and let me stop there, and I know that the Chief Justice made the point to Mr Game that that was a word that was used by the officers committee.  Then we go on –

of the conspiracy from the intent to commit an offence pursuant to that agreement.

Now, your Honours will note that 405.1 dot points one and two corresponds to 11.5(2)(a) and (b).  So what is being discussed there is 11.5(2), not 11.5(1).  Then below the box on 99 your Honours will see there is a heading “405.1 Fault elements”.  Now, again, your Honours, 405.1 corresponds to 11.5(2).  So the officers committee are discussing and referring to as elements the components of 11.5(2), not 11.5(1).  They go on:

The Committee agreed that intention was required and that recklessness would not suffice.  This is in accordance with the proposals of the Gibbs Committee . . . and the common law . . . The concept of recklessness is foreign to an offence based wholly on agreement.

Then there is a footnote which you will find over the page at the top of 101.  My submission is that the proposition that “concept of recklessness is foreign to an offence based wholly on agreement” should be understood to mean that you cannot agree to commit an offence when you are reckless as to whether the offence will occur, that it is foreign to the idea of agreeing to commit an offence, that you are reckless as to whether that offence will occur and that therefore what is being said there is that it is for that reason that the committee propose that there should be an intention to commit an offence pursuant to the agreement, as was referred to earlier at the top of 99.  There is also discussion intention to agree.  Your Honours will see in the last paragraph on 99 there is a reference to:

The Committee believes that proof of intent to enter an agreement involves proving –

So there is a discussion of two fault elements.  A fault element of intention to agree which is not specified at 11.5 and we come to it because it is deemed to exist in respect of 11.5(2)(a), the physical element of enter an agreement.  In my submission, that should be understood to be an element to which 5.6(1) applies so that there must be an intention to enter that agreement.  Then there is a separate fault element of intending to commit an offence pursuant to the agreement, and that is what the officers committee was discussing and that provides cogent support for the proposition that 11.5(2) was intended to be elements or state elements of the offence of conspiracy ‑ ‑ ‑

BELL J:   How do you characterise 2(b)?  Did you say that it was a fault element?

MR ODGERS:   Yes, it actually contains both a fault element and a physical element.

BELL J:   What is the physical element?

MR ODGERS:   The physical element is the intention of the other conspirator that an offence be committed pursuant to the agreement.  There are two things that 11.5(2)(b) does.  It requires that the accused conspirator intends to commit an offence pursuant to the agreement, which is a fault element.

BELL J:   What is the physical element for that fault element?

MR ODGERS:   That is a point that Mr Game raised.  He was suggesting that there is a problem because he said you cannot point to a physical element, there is no physical element for that fault element.  Or it is the other way round.  You know what I mean, your Honour.

BELL J:   Yes.

MR ODGERS:   Firstly, we do not concede that a fault element has to be for a physical element.  There is nothing in the Code, we say, that requires that.  The Code requires physical elements and it requires fault elements.  But if your Honours are not persuaded by that, we would say that it is a fault element for the physical element of agreement, that is ‑ ‑ ‑

KIEFEL J:   The entry into the agreement ‑ ‑ ‑

MR ODGERS:   I am sorry ‑ ‑ ‑

FRENCH CJ:   Maybe it just does not fit into the definition of “fault element”.  It is just, in a generic sense, an element, a necessary condition.

MR ODGERS:   No.  We respectfully submit that it is a fault element.  The difficulty that is suggested exists is that we have to indicate a physical element for which it is the fault element.

KIEFEL J:   Why is it not the conduct of entering into the agreement?

MR ODGERS:   That is what I was attempting to say at that very moment, that it could be seen to be a fault element for the agreement.  I do apologise.  I am not sure whether I may have misled Justice Kiefel.  I am certainly not suggesting that it is an intention to enter the agreement.  It is an intention that co‑exists with the agreement.  At the time you enter the agreement ‑ ‑ ‑

KIEFEL J:   No, I understand the distinction.

MR ODGERS:   I am sorry, I did not ‑ ‑ ‑

KIEFEL J:   When I say “the conduct of entering into the agreement”, it is coming to the agreement – taking part in the agreement and coming to the agreement itself.  It encompasses all of it, does it not?

MR ODGERS:   No, your Honour.  I do respectfully submit that one has to separate the two fault elements of an intention to enter an agreement ‑ ‑ ‑

KIEFEL J:   And the agreement itself.

MR ODGERS:   No, an intention, a co‑existing – the document that has been produced by the Attorney‑General’s Department, which is a guide to practitioners which was written by Ian Leader‑Elliott, calls it an ulterior intention.  It is an intention that does not apply to a physical element.  It is not a physical element of the offence.

KIEFEL J:   In commercial terms, you would normally say the conduct of entering into an agreement encompasses the negotiations or all the discussions that lead to the entry into the agreement and it postdates the formation of a general intention.  But perhaps we do not need to go there.

MR ODGERS:   My submission, with great respect to your Honour, is that that sounds like common law analysis.

KIEFEL J:   I think commercial lawyers might take issue with that.

MR ODGERS:   I am sorry; I do apologise, your Honour.  I respectfully submit that, looking at 11.5, essentially shorn of common law context, there is a physical element - enter an agreement.  There is a default element of intending to enter an agreement ‑ ‑ ‑

GUMMOW J:   It uses this word “agreement”.  It does not say arrangement or understanding actually.

MR ODGERS:   No, it does not.  I am just using the language of the Code in subsection ‑ ‑ ‑

GUMMOW J:   Which I would have thought was a weakness myself, a great weakness perhaps.

MR ODGERS:   I am sorry, your Honour.

GUMMOW J:   That may be a great weakness.

MR ODGERS:   Your Honour, I think it can be fairly said ‑ ‑ ‑

GUMMOW J:   From the point of view of those drafting this legislation.

MR ODGERS:   One can fairly make criticisms.

GUMMOW J:   They do not seem to have read the Trade Practices Act.  It said that is just for commercial lawyers, even though it has a lot of penalties attached to it.

MR ODGERS:   Yes, your Honour.  Concluding what I was saying, your Honours, in subsection (2)(b) there is a discrete, completely separate fault element of intention that something happen, intention that something happen in the future.  The accused conspirator enters an agreement, intends to enter agreement and at the same time has an intention that something happen in the future, which happens to be in this case an offence committed pursuant to the agreement.

BELL J:   I understand your principal position is that the approach adopted in Part 2.2 of the Code does not require that there be a physical element for a fault element, that one can have a hanging fault element.  But if that is not accepted, could you precisely characterise the physical element to which the fault element of intention in (2)(b) applies?

MR ODGERS:   It is the physical element in (2)(a).

BELL J:   I understand.  Do I understand it to be this.  In the way the drafter has approached this exercise, you get the physical element of conduct in (a) for which the fault element is in (b)?

MR ODGERS:   That could be one way of understanding it.  There is a difficulty I have just apprehended.

BELL J:   I think there is.

MR ODGERS:   The difficulty is that if that is right, then 5.6 does not apply and you do not deem a fault element of intention in respect of (2)(a).

BELL J:   That would not be so much a difficulty as that (b) has something more to it than (a) apart from a statement of the fault element of intention.

MR ODGERS:   I have contended that (2)(b) performs a number of purposes.  It creates a fault element on the part of the accused which I say can be understood to be a fault element that coexists with and therefore is for the making of the agreement.

BELL J:   Yes.

MR ODGERS:   So that responds to what your Honour says.

BELL J:   Yes.

MR ODGERS:   And in addition, this requirement of mutuality, it requires that another conspirator shares the same intention, which is the fact of another conspirator having an intention is not in truth properly understood as a physical element.  It is a circumstance, a circumstance that somebody else – for example, it is not the perfect analogy, but in sexual offences or rape if the circumstance that there is a lack of consent, that is a state of mind on the part of someone other than the accused, that is properly understood as a circumstance, a physical element of circumstance of the offence.  Equally here.

KIEFEL J:   You are taking the word “agreement” then – I am conscious of what Justice Gummow said about its deficiencies – to mean a meeting of minds.  Does that fit within the statutory scheme?  In relation to conspirators it does not have any other baggage.

MR ODGERS:   I think that is correct, yes, your Honour.  It should be interpreted broadly.  I think that would be a fair statement.  Agreement is a concept which can be ‑ ‑ ‑

KIEFEL J:   That then becomes the circumstance that you are referring to?

MR ODGERS:   Entering an agreement can be characterised as conduct.

GUMMOW J:   Meeting of minds ‑ ‑ ‑

MR ODGERS:   If that is how one characterises it, it may be characterised as a circumstance.  I am not sure it matters for the purpose of this case.

BELL J:   Coming back to this analysis, Mr Odgers, if one considers that subparagraph (b) is the fault element for the entry into the agreement being the physical element of conduct in (a), it does not really fit because (a) is concerned with the entry into the agreement, and one would think that one would apply the default element to that element of conduct.

MR ODGERS:   Yes, I understand.

BELL J:   Subparagraph (b) is doing something else.  It is requiring that the accused and at least one other party to the agreement have an intention that an offence would be committed pursuant to it, and that does look very much like a statement directed to the mental state of the parties.

MR ODGERS:   If your Honours are against me that you have to have a physical element for which a fault element exists, then I understand that it is linguistically difficult and it seems hard to fit it.

BELL J:   It goes a little bit further than that, does it not, because if – one has to endeavour to apply 3.2 and the analysis that the Code provides to an offence, one can see some support for the approach that Justice Howie adopted, if it be the case that the analysis of physical and fault elements does not fit with the statement of conditions in subparagraph (2)(a) to (c).

MR ODGERS:   I understand that, your Honour.  My submission is that 3.2 does not explicitly say that there is no such thing as a fault element which exists, so to speak, floating independent of some – or to which you cannot say it is a fault element for a physical element.  It does not say that, it just ‑ ‑ ‑

BELL J:   And if it is a fault element, a hanging or suspended fault element, then it is a fault element of intention and does the approach to intention in 5.2 apply to the specific intention in 2(b)?

MR ODGERS:   In my submission, it can.

BELL J:   How does that work?

MR ODGERS:   Because when one works out what an offence is, and applies 3.2 to say an offence is made up of physical elements and fault elements, you will then apply that distributively, and so that where, for example, intention must apply to each of the physical and fault elements in the offence, and so if one of the physical elements is a physical element of circumstance, you have to intend that that physical element of circumstance exists ‑ ‑ ‑

BELL J:   But we have a hanging fault element.  We do not have a physical element of circumstance on this analysis.

MR ODGERS:   Well, your Honour, 5.2 does not say, as I understand it, necessarily that it only applies to fault elements in respect of physical elements of circumstance which are required to exist.  If you are, for example, in this case it is an intention that money be proceeds of crime – I am sorry, to take RK and LK to make it simpler ‑ an intention in respect of the proposition, the circumstance that the money dealt with will be proceeds of crime, now, it is not necessary for a conspiracy that it be proved that there really are proceeds of crime.  That is the whole point about conspiracies.  But nonetheless being proceeds of crime can be characterised as a circumstance to which 5.2 can apply.  It is a fault element.  It does not say in 5.2 this only applies to intention in respect of circumstances that are physical elements.  It does not say that.  If it said that then it would be hard to apply 5.2 to that scenario of what is called specific or ulterior intention.

BELL J:   I think it is more that (2)(b) states the intention with which it is concerned.  It is the intention that an offence be committed pursuant to the agreement as distinct from the analysis of intention for the purposes ‑ ‑ ‑

MR ODGERS:   Yes, your Honour, but I had understood that the question you were asking me was could the word “intention” in (2)(b) – could you apply 5.2 to it and my answer to you is why not?  It is a rhetorical question.  There is nothing that 5.2 – 5.2 does not say you cannot and there is no obvious reason why you should not.  But at the end of the day that may not matter much, although I think it might matter in ‑ ‑ ‑

FRENCH CJ:   What all this tends to at the end is, is it not, at paragraph 28 of your submissions that on the proper construction of 11.5 read with 400.3(2)(b)(ii) you cannot avoid the difficulty of alleging incompatible mental states, which are characterised in the language of Justice Simpson as conceptually unacceptable.  That is what it all boils down to ‑ ‑ ‑

MR ODGERS:   But that is one potential problem.

FRENCH CJ:   ‑ ‑ ‑when we emerge from this swirling universe of elements.

MR ODGERS:   It is the problem of intending to be reckless, effectively or intending that someone be reckless.  I take Justice Hayne’s point.  It might be possible to distinguish from a situation where the accused is going to be the person – where it is a third party who is going to do something and where it is the accused conspirator who is going to do it.  But yes, that is a problem but can I defer that problem just a short period, your Honour?

FRENCH CJ:   As long as we have a clear path to that proposition through this thicket.

MR ODGERS:   Yes, I will be going there fairly clearly, I hope.

KIEFEL J:   There is more work – I take it from what you say – there is more work for 11.5(2)(b) to do, not the least because perhaps of the words “pursuant to the agreement”?  If the intention is that an offence be committed pursuant to the agreement that raises the question, does it not, what are the subject or the terms of the agreement.

MR ODGERS:   I accept that, your Honour.

KIEFEL J:   That in turn asks what conduct and what circumstances are contained within the agreement and that perhaps then gives you your physical elements to which you are ‑ ‑ ‑

MR ODGERS:   No, that is not the argument I am advancing, your Honour.  The argument I am advancing is focusing squarely on the proposition, “intending an offence be committed”, those words.  The “pursuant to the agreement” is an additional requirement, but that is not the aspect that I am focusing upon.

KIEFEL J:   At some point I would have thought one would be interested to know what the conspirators had actually the terms of their agreement so that we might contrast it with the terms of the substantive offence, the elements of the substantive offence.  In the process that you are doing, it is very theoretical, but at some point there has to be an analysis.  The Code must involve a comparison of what is agreed and what the offence is.  So when does that happen?

MR ODGERS:   Your Honour, I am not sure I am answering your question, but my response is that, as the officers committee intended, they wanted to separate agreement out from the question of intending to commit the offence, and the issue in this appeal is what it means to intend to commit an offence, and what is being submitted, as the Chief Justice flagged, is that to intend to commit an offence of recklessness creates very severe conceptual difficulties, and that will be where my primary argument goes.

FRENCH CJ:   Well, the precise conceptual difficulty is incompatible mental states, is that right, on the part of the conspirators?

MR ODGERS:   That is one difficulty, but it is certainly not the only difficulty.  I do not want to necessarily explain what all the difficulties are now, unless your Honour wants me to.

FRENCH CJ:   …..take us on the path to it.

MR ODGERS:   I will. So, your Honour Justice Kiefel, I am really focusing on those words, “intend to commit an offence”. That is the critical part of the argument and what that means when you unpack it. Just briefly, your Honours, that is all I wanted to say about the conspiracy part of the Criminal Officers Committee. I do want to make the point that the style of drafting which you find at 11.5 is adopted in the rest of Part 4, and it, with respect, does not support a conclusion that, for example, section 11.5(2) is exegetical.

If I can just very briefly take you through some of the other parts of the officers committee report.  Page 75, please, first to “Attempt”.  If you look at page 74 there is what became I think 11.2 – I get confused now whether it was 11.2 or 11.1, whatever it is in Chapter 2, attempt; it is substantively identical.  If you look at page 77 under the heading “401.1 and 401.2.  Fault”, this is a discussion in respect of subsection (2) and subsection (3) of 11.1.  For example, in the middle of the page:

The Discussion Draft had included recklessness as a fault element for attempt where recklessness would suffice for the fault element of the completed offence.  This represented a shift from the position in the Griffith Codes, where intent is always required and recklessness will not suffice.  The position at common law is unclear . . .  Several submissions opposed this proposal, principally on the basis that purposiveness is the essence of attempt . . . The Committee accepted these criticisms and deleted recklessness from attempt, complicity and incitement.

I anticipate that somebody might say to me they do not refer to conspiracy there.  The reason they do not refer to conspiracy is because they are referring back to their discussion draft.  In the discussion draft, as I apprehend it, recklessness was not contained in respect of conspiracy, therefore they did not need to delete it.  They had recklessness in the discussion draft for attempt complicity and incitement and they determined to abandon recklessness and adopt intention.  The significance, your Honours, is that this is a discussion about the elements of attempt and therefore not exegetical of section 11.1(1).  What you will find, your Honours, is that subsections (2) and (3) correspondence to section 401.1 and section 401.2 and it is a discussion about elements.

I know Justice Hayne raised incitement as a potentially good example of what I will call the exegetical analysis.  I will come to that in one moment, but can I also take you to complicity on page 87.  Again your Honours will see in respect of the conspiracy provision, which is found on page 86, at point 7 on page 87 a heading “402.1 Fault elements”.  Again, that corresponds to section 11.2(2) which is “for a person to be guilty” et cetera.  Again, the officers committee understood that they were proposing elements of the offence in what became 11.2(2).  They were not discussing 11.2(1).

That leads me then to incitement on page 93.  What became incitement in 11.4 is to be found on page 92.  The discussion on page 93 discusses the requirement.  Let me be clear.  Section 11.4 is interesting because there is no doubt that subsection (1) of 11.4 does create a fault element.  It is the physical element of urging the commission of an offence.  The question really is whether or not subsection (2) of 11.4, which refers to the requirement of intention, is also an element and the short answer to that is it was clearly intended to be, because if you go to page 95 you will see under the heading “404.1 Fault elements” which corresponds to 11.4(2), a discussion about the need for not having recklessness, that is not enough, you need intention, again clearly a discussion about elements.  In my submission, there is nothing in the Criminal Officers Committee report to support Justice Howie’s approach to subsection (1) and subsection (2) in 11.5.

BELL J:   On a view, a textual analysis might nonetheless support it.  Just going back to subsection (1), if you read “conspires” in the first sentence as “agrees”, just for present purposes, you have a person who agrees with another to commit an offence, with certain characteristics, is guilty of the offence of conspiracy.

MR ODGERS:   Yes, your Honour.

BELL J:   You have the default element for that being intention.  At some stage I, like Justice Heydon, am interested in understanding how your case is improved by recourse to (2)(b), but it is by no means clear that you do not have the offence in subsection (1).

MR ODGERS:   I can only repeat what I have ‑ ‑ ‑

BELL J:   No, I understand that.  It is more that there are some difficulties of applying the framework of Part 2.2 on an assumption that what is contained in (a) to (c) are elements.  That is all I am raising with you.

MR ODGERS:   I will come to that.  I appreciate that is an important issue.  Given, however, that your Honours are dealing with a provision for the first time, and plainly enough an important issue justifying the grant of special leave in this case is to work out to what extent the common law applies, it seemed to me appropriate that I make the submissions that I have.  I will be very brief about what else I say about it.

I would note, your Honour, that the second source of Justice Howie’s analysis was to be found at page 673 in the appeal book where he referred to the guide which has been prepared by the Australian Government Attorney‑General’s Department and written, as Justice Howie notes, by Ian Leader‑Elliot.  I will not read that paragraph – paragraph 65.  Justice Howie asserts that that guide supports his analysis.  With great respect, that is not correct.

When you go to the guide –and I am not going to take you to any detail at all, but at page 279 of the guide your Honours will see under the heading “11.5(a)  Liability for conspiracy requires proof that the defendant entered an agreement with another person with the intention that an offence would be committed pursuant to the agreement”.  It stated, “The physical element of the offence is entry into an agreement”.  Now, your Honours, that is plainly a reference to 11.5(2)(a) – conduct which involves, of necessity, an intentional act.

So this guide did not descend to asserting that you need to deem an intention to enter an agreement.  It was stated that it necessarily required it.  That act must be accompanied by an ulterior intention – this relates back to what your Honour Justice Bell asked me – shared by at least one other party to the agreement, that an offence will be committed pursuant to the agreement.  Again, a clear reference to 11.5(2)(b).  Then it said the Code requirement of intention that the offence be committed faithfully reflects Australian common law.  Recklessness with respect to the risk that another party to an agreement might commit an offence in pursuit of agreed objectives is not sufficient for conviction of conspiracy.  With respect, that discussion plainly is a discussion about 11.5(2) and it is not about 11.5(1).

HEYDON J:   Mr Odgers, please do not laugh if this is a foolish question, but why should we be troubled by the opinions of Ian Leader‑Elliot?  Did he have something to do with the ‑ ‑ ‑

MR ODGERS:   He was a consultant to the Officers Committee, but ‑ ‑ ‑

HEYDON J:   In the early 90s and late 80s?

MR ODGERS:   He was, yes.

HEYDON J:   I see.

MR ODGERS:   But that is not the primary reason, your Honour.  It is rather that Justice Howie relied on what is said in that document to support his interpretation of 11.5.  I am just simply pointing out that ‑ ‑ ‑

HEYDON J:   The judge in the Court of Criminal Appeal does not really trouble himself too much about what a senior lecturer at the Adelaide Law School says.  He might trouble himself about what Professor Williams said.

MR ODGERS:   I am sorry, your Honour?

HEYDON J:   He might trouble himself about what Glanville Williams said or Sir John Smith or ‑ ‑ ‑

MR ODGERS:   Certainly, Mr Game spent a considerable amount of time taking you to Professor Glanville Williams.  My submission is that the Officers Committee considered those issues when it was determining what should be proposed in respect of the Model Criminal Code.  It ultimately rejected the analysis of persons like Professor Glanville Williams.  It concluded that intention was required, not recklessness.  It made that abundantly clear throughout its report.  I come back to the proposition I began with, that it is a Code, whatever that means, and that one looks to the language of the provisions assisted, where relevant, by the common law but also particularly assisted by what the Officers Committee said that they were doing.

At the end of the day, what, with respect, I would rhetorically ask, is it that leads to the conclusion that this provision, 11.5, says, okay, it is all common law, which is effectively what the position of Justice Howie is?  Lastly, your Honours, on this point, the Queensland Court of Appeal has not adopted this approach.  It is not a judgment where one can say that all the issues have been fully ventilated, but I can take you to the decision of the Queensland Court of Appeal in R v Lake, Carstein, Geerlings (2007) 174 A Crim R 491. One of the issues in this case that the Court of Appeal had to determine was whether or not there had to be unanimity on the question of overt act under the Code, under 11.5 and the Court in order to determine that question concluded that 11.5(2)(c), the requirement of an overt act, was an element of the offence of conspiracy under the Code. If you go to page 509, paragraph 63, Justice Holmes said:

There remains, however, the question of whether the jury ought to have been directed that it was necessary it agree as to an overt act committed pursuant to the agreement.

The argument of the Crown was that they did not need to be.  Justice Holmes said:

The argument for the Crown would be stronger were it seeking to prove a conspiracy at common law, rather than the statutory offence under the Criminal Code. At common law, overt acts were relied on to prove the consensus underlying the conspiracy, the conspiracy itself being complete once agreement to commit the offence was reached; but s 11.5(2) of the Criminal Code makes the commission of an overt act pursuant to the agreement an element of the offence.

FRENCH CJ:   It is said that 11.5(2) is identical to 86(3) of the Crimes Act.

MR ODGERS:   That is correct.

FRENCH CJ:   When was 86(3) of the Crimes Act introduced in that form?

MR ODGERS:   It was based on the Criminal Code Officers Committee report proposals in respect of conspiracy that I have taken you to. It was introduced before Chapter 2, but it was essentially in identical language to 11.5. Over the page, your Honours, paragraph 67, in the middle of that paragraph:

The argument that satisfaction of the elements in sub-ss 11.2(a) and 11.2(b) would entail conclusions as to overt acts as to which no unanimity was required does not assist in respect of sub-s 11.2(c) which explicitly makes commission of an overt act an element of the offence.

Your Honours, I do not place a great deal of weight on this because this issue was not really debated, but there it is.  It is a decision of the Queensland Court of Appeal regarding (2)(a), (b) and (c) as elements.       That is all I wanted to say on that question.

HEYDON J:   If Justice Howie were correct, on one view would it not follow that where it says a person who conspires with another person, that means a person who makes an agreement with another person intending that an offence be committed pursuant to the agreement, that is one possibility?  Your possibility, does it not achieve entirely the same result by going to (2)(b)?

MR ODGERS:   Yes, it brings in this issue that Justice Bell raised with me, which is – I am not sure it is determinative in this appeal – whether or not the definitions of intention and recklessness in 5.2, 5.4, whether they apply if – I have to concede they would not apply if subsection (2)(a), (b) and (c) were not elements.  I think that in order for them to apply, they have to be elements.

HEYDON J:   It is just that contrary to something you said earlier, for me the primary goal is not trying to settle the construction of these provisions.  It is simply attempting to see whether your clients received some injury at the hands of the trial judge and the jury.

MR ODGERS:   I appreciate that.

HEYDON J:   We have got to sort of start at the concrete end, have we not, before we get up into grand theory?

MR ODGERS:   Well, I am not sure.  Your Honour may be right.  I have approached it the other way round to try to get the basics clear.  If they are not clear, then that is my fault.

HEYDON J:   Let us say Justice Howie is correct on this point, can you still win?

MR ODGERS:   Yes.

HEYDON J:   All right.  How do you win if he is correct, because if so, we need not bother too much about Ian Leader‑Elliot and whether he misread Mr Leader‑Elliot and so forth?

MR ODGERS:   No, because it still raises the question what the words in (2)(b) mean, you have to intend to commit an offence and, as I apprehend it, Justice Howie – indisputable they have to be established, those elements for guilt have to be established.  They have to be proved to establish guilt and the first question raised by the appeal in Ansari is, is there a fundamental conceptual problem with intending that an offence be committed recklessly, which, of course, is the issue that arises in Ansari.  The issue that arises just ‑ ‑ ‑

FRENCH CJ:   It is intending that an offence be committed, one of the elements of which is recklessness.

MR ODGERS:   I am sorry, I was oversimplifying, your Honour.  The issue in RK and LK is, is there an intention in respect of all the physical elements, is that required?  That is not a particular problem with our case.

HEYDON J:   Do not worry about – they will live or die by themselves.  We just have to worry about your case.

MR ODGERS:   Yes.

GUMMOW J:   At the moment you are handicapped, I suppose, to some degree by the grounds in the notice of appeal.  You have only got a grant that was stated at that level.

MR ODGERS:   I am bravely trying to keep within those grounds at the moment, but I will explain how I get there, as I say, shortly.  So if we can then focus on (2)(b) which we say is an element and critically important.  The words are “must have intended that an offence would be committed”.  We say that intention on the part of the accused must exist at the time of entering the agreement and we say that the words “an offence” in (2)(b) should be understood consistently with section 3.1, because section 3.1 says an offence is composed of physical elements and fault elements.  So that to intend an offence you have got to intend that the physical elements of that offence come into existence and you have got to intend that at the time those physical elements come into existence the fault element for that offence be in existence, if I could use that rather vague language.  Then you transpose the requirement of intention in respect of all of those elements and apply it distributively, I am sorry.

Now, in the submissions I have put in extensive submissions about applying intention to the physical elements but that is not really an issue that has been extensively debated in RK and LK and I accept that it would not be appropriate for me to do anything other than to draw your Honours’ attention to paragraph 22 of the written submissions where we attempt to advance various reasons why it should be accepted that the conspirator must intend that each and every one of the physical elements must come into existence, including physical elements of circumstance.  So what that would mean here is that to be guilty of conspiracy to commit the offence the Ansari’s were charged with, it must be intended that at the time the money is dealt with a risk exists that the money will become an instrument of crime, an intension that a risk exists. 

Now, to get to the point the Chief Justice has raised with me, we move on to the aspect of intending the fault elements of the offence.  We contend that where a fault element in a substantive or subsidiary offence exists, the accused conspirator must intend that that fault element will exist at the time that the physical elements take place.  So that applying it to 400.3(2) in this case, a conspirator must intend that the money will be dealt with intentionally and intend that the person who deals in the money will be reckless regarding the risk that the money will become an instrument of crime.  Submissions in support of that proposition are found in paragraph 23 of our written submissions.  Again, I do not want to unduly burden your Honours – well, perhaps because it is something ‑ ‑ ‑

FRENCH CJ:   It would be intended that there is a risk that the money will become an instrument of crime or you do not attach intention to that?

MR ODGERS:   That is an intention in respect of a physical element.  So you must intend all the physical elements and the fault elements.

FRENCH CJ:   So you must intend to meet the requirements of 11.5(2)(b).  There will be a risk but the money probably will become an instrument of crime?

MR ODGERS:   Let me start at the beginning, your Honour.  You must intend that the money be dealt with.  You must intend that the money be dealt with intentionally, which is intending the fault element in respect of the dealing in money.  You must intend that a risk exists, which is the circumstance and you must intend that at the time the money is dealt with and the risk exists that the person who deals with it does so reckless as to the existence of that risk.  In paragraph 23 of the written submissions we have referred to section 3.1.  We note, your Honours, that there is a contrast between 11.5(2)(b) and 11.1(3).  That is the attempt provision.  Your Honours will have noted that attempt, subsection(3) of 11.1 – I am struggling to find my provisions – says:

For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

So only as limited intention to the physical elements. We say that section 11.5(2)(b) is not limited to the physical elements, therefore it must be understood to apply to both physical elements and fault elements and that therefore there must be intention in respect of both.

BELL J:   Is that an argument that is confined to 11.5(2)(b) as distinct from if the offence is to be found in subsection (1), a person who enters into an agreement with another intending to do so, that is, intending to enter into the agreement, to commit an offence?  Does that produce a different result to a view that (2)(b) is an element, or on either analysis?

MR ODGERS:   Your Honour will not be surprised that I would say on either analysis it is still required.

BELL J:   You do not draw a distinction, is that right, or are you?  It is just not clear to me if you are.

MR ODGERS:   Your Honour, I begin from the proposition that 11.5(1) does not create an element.  If it does, then I would submit respectfully that it requires the same things as 11.5(2)(b).

BELL J:   Why is it that an intention to commit an offence is expressed in terms of an intention that there be in existence the physical and fault elements as distinct from an intention that there exist all the facts and circumstances that as a matter of legal characterisation are an offence?

MR ODGERS:   You will have to ask the Officers Committee the answer to that, your Honour.  All I can say is that was the draft that they advanced.  They used the words “intend to commit an offence”.

BELL J:   But why would one construe those words as meaning more than intend that facts and circumstances exist which are characterised as an offence?  In other words, a person may surely intend to commit an offence notwithstanding that they do not know as a matter of law that that is its characterisation, albeit they intend ‑ ‑ ‑

MR ODGERS:   Quite.

BELL J:   Well, you do not take issue with that by this analysis?

MR ODGERS:   I am not sure what the words, “knowing all the facts that constitute the offence”, what those words really mean.  So my answer to your Honour is when (2)(b) says “intend an offence” I go to the definition of “an offence” in 3.1.  An offence is constituted by physical elements and fault elements.  I transpose that to (2)(b) and I say, well, that is what it means.  What your Honour’s formulation based on the common law means the same thing, then I am content to that, but I do not, with respect, know what those words really mean.  That is my difficulty.  There is no reason to adopt them, I say.

BELL J:   Well, Mr Odgers, it is not clear to me whether you are advancing a proposition that leads to a different result on the basis of what might seem to be somewhat complex analysis for the purpose of the ‑ ‑ ‑

MR ODGERS:   Your Honour, I think I have conceded it may not be and that will depend on what those words “intending the facts that constitute the offence”, what those words mean.  If they mean the same thing as intending that all the elements of the offence come into existence, then it is the same.  If they mean something different, for example, if facts means conduct, circumstances, then that would suggest, as comparable with attempt in 11.1, that you only have to intend the physical elements of the offence and therefore you do not have to intend that the fault element exists.  So that is why I am hesitant to adopt what your Honour said and to endorse that proposition.

BELL J:   Looking at this offence, bearing in mind that recklessness embraces knowledge and intention ‑ ‑ ‑

MR ODGERS:   Your Honour is referring to section 5.4(4)?

BELL J:   Yes.

MR ODGERS:   Yes, I will be coming to that in due course.  But I accept, as a general proposition, you may be able to prove recklessness by proving intention or knowledge.

FRENCH CJ:   It might be time for a break, Mr Odgers.

MR ODGERS:   I would be more than happy with that, your Honour.

FRENCH CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 3 DECEMBER 2009