FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ
ROBERT AGIUS APPELLANT
AND
THE QUEEN RESPONDENT
Agius v The Queen
[2013] HCA 27
5 June 2013
S28/2013
ORDER
1.Grant of special leave to appeal of 15 February 2013 against the whole of the judgment and order of the Court of Criminal Appeal of New South Wales given and made on 24 May 2011 revoked.
2.Special leave to appeal against the appellant's conviction on count 2 on 31 July 2012 granted.
3.Leave to amend the notice of appeal granted.
4.Treat the appeal as instituted and heard instanter.
5.Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
I M Barker QC with P R Coady for the appellant (instructed by Eddy Neumann Lawyers)
P W Neil SC with S M McNaughton SC for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Agius v The Queen
Criminal law – Conspiracy – Where appellant charged with conspiracy to defraud Commonwealth contrary to ss 86(1) and 29D of Crimes Act 1914 (Cth) – Where appellant charged with conspiracy to dishonestly cause loss to Commonwealth contrary to s 135.4(5) of Criminal Code (Cth) ("Code") – Where both charges related to single scheme to defraud Commonwealth of taxation revenue – Where two charges necessary because of legislative change – Whether s 135.4(5) of Code required prosecution to prove appellant entered into agreement after commencement of provision – Whether "state of affairs" could be physical element of s 135.4(5) of Code – Whether being party to an existing agreement a "state of affairs" – Whether s 135.4(5) of Code given retrospective effect if offence satisfied by continuation of agreement formed before commencement of provision.
Words and phrases – "agreement", "conspiracy", "state of affairs".
Crimes Act 1914 (Cth), ss 29D, 86(1) and 86(2). Criminal Code (Cth), ss 4.1, 4.2, 135.4(5) and 135.4(9).
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ. The appellant and three co-accused were charged on indictment with two counts of conspiracy. The first count alleged that the four accused and another person conspired to defraud the Commonwealth between 1 January 1997 and 23 May 2001 contrary to ss 86(1) and 29D of the Crimes Act 1914 (Cth) ("the Crimes Act"). The second count, as subsequently amended, alleged that the four accused and another person conspired to dishonestly cause a loss to the Commonwealth between 24 May 2001 and 23 October 2006 contrary to s 135.4(5) of the Criminal Code (Cth) ("the Code").
The two counts were particularised as arising out of a single scheme to defraud the Commonwealth of taxation revenue which began in 1997 and continued until 2006. The second count was necessary because s 29D of the Crimes Act was repealed with effect from 24 May 2001. Section 86(2) of the Crimes Act,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Agius v The Queen [2013] HCA 27
Case
[2013] HCA 27
Decision Date
CaseChat Overview and Summary
The appellant, Bugmy, was charged with two counts of conspiracy: one under s 86(1) and 29D of the *Crimes Act 1914* (Cth) and another under s 135.4(5) of the *Criminal Code* (Cth). Both charges stemmed from a single scheme to defraud the Commonwealth of taxation revenue, with the two charges necessitated by legislative changes. The appeal concerned the interpretation and application of s 135.4(5) of the *Criminal Code*.
The central legal issues before the High Court of Australia were whether s 135.4(5) of the *Criminal Code* required the prosecution to prove that the appellant entered into the agreement after the commencement of that provision, whether a "state of affairs" could constitute the physical element of the offence under s 135.4(5), and if being a party to an existing agreement could be considered such a "state of affairs". The Court also considered whether s 135.4(5) would be given retrospective effect if the offence was satisfied by the continuation of an agreement formed before the provision commenced.
The Court reasoned that the physical element of the offence of conspiracy under s 135.4(5) of the *Criminal Code* is to be understood by reference to the common law meaning of "conspires", subject to statutory modifications. It was held that, consistent with common law principles affirmed in cases like *Savvas v The Queen*, the physical element of conspiracy can be satisfied by continuing adherence to an existing agreement, meaning a conspiracy is a continuing offence. Therefore, the offence under s 135.4(5) could be established by adherence to an agreement formed before the provision commenced, without giving the section retrospective effect.
The High Court revoked the grant of special leave to appeal against the whole of the judgment of the Court of Criminal Appeal of New South Wales. Instead, it granted special leave to appeal against the appellant's conviction on count 2, which was the charge under s 135.4(5) of the *Criminal Code*. After granting leave to amend the notice of appeal and treating the appeal as instituted and heard instanter, the Court dismissed the appeal against the conviction on count 2.
Orders
Orders of the court
1. Grant of special leave to appeal of 15 February 2013 against the whole of the judgment and order of the Court of Criminal Appeal of New South Wales given and made on 24 May 2011 revoked.
2. Special leave to appeal against the appellant's conviction on count 2 on 31 July 2012 granted.
3. Leave to amend the notice of appeal granted.
4. Treat the appeal as instituted and heard instanter.
5. Appeal dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ
GAGELER J
In the course of oral argument on the appeal it became apparent that the appellant's submission that the Crown did not "need" to charge two counts of conspiracy could not be taken at face value. The appellant's counsel did not accept that a conviction on count 1 justified a sentence which reflected the criminality involved in the appellant's adherence to the conspiracy between 24 May 2001 and 23 October 2006.Conclusion and orders The grant of special leave to appeal of 15 February 2013 should be revoked and, in its place, special leave granted to appeal against the appellant's conviction on count 2 on 31 July 2012. Leave to amend the notice of appeal should be granted. The appeal against the conviction on count 2 should be dismissed. We would make the following orders:1. Grant of special leave to appeal of 15 February 2013 against the whole of the judgment and order of the Court of Criminal Appeal of New South Wales given and made on 24 May 2011 revoked.2.Special leave to appeal against the appellant's conviction on count 2 on 31 July 2012 granted.3. Leave to amend the notice of appeal granted.4. Treat the appeal as instituted and heard instanter.5. Appeal dismissed. Adopting its abbreviations, I join in the orders proposed in the joint reasons for judgment and agree with the reasons there stated for rejecting the second and third arguments of the appellant. These are my reasons for rejecting the first argument of the appellant. The effect of the holding in LK[36] is that: the physical element of the offence of conspiracy created by s 135.4 of the Code is to be found in s 135.4(5); and the word "conspires" is to be understood by reference to the common law, subject to express statutory modification by other provisions in s 135.4 and elsewhere in the Code.[36](2010) 241 CLR 177 at 206 [59], 210 [72], 224 [107]; [2010] HCA 17. The common law meaning of "conspires" being picked up subject to express statutory modification, the reasoning of the House of Lords in Doot[37] is not in all respects applicable to the offence of conspiracy created by s 135.4 of the Code. The question answered in Doot (whether an agreement made outside territorial jurisdiction can be tried as a conspiracy) is answered in respect of s 135.4 by s 135.5 and s 15.4. The passage in the speech of Lord Pearson quoted in the joint reasons for judgment must be qualified: the first sentence by s 135.4(9)(c); the last sentence by s 135.4(12)(b).[37][1973] AC 807. Subject to s 135.4(9) and s 135.4(12), the central proposition for which Doot is authority at common law is nevertheless applicable to the physical element of the offence of conspiracy created by s 135.4 of the Code that is to be found in s 135.4(5): the physical element of conspiracy may be satisfied by continuing adherence to an existing agreement. Viscount Dilhorne put it this way[38]:"When there is agreement between two or more to commit an unlawful act all the ingredients of the offence are there and in that sense the crime is complete. But a conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design."He went on to refer to conspiracy as a "continuing offence" at common law[39]. That proposition was endorsed as part of the common law of Australia in Savvas v The Queen[40].[38][1973] AC 807 at 822-823.[39][1973] AC 807 at 823.[40](1995) 183 CLR 1 at 8; [1995] HCA 29, citing Doot [1973] AC 807 at 823 and R v G, F, S and W [1974] 1 NSWLR 31 at 43-44.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL AND KEANE JJ,
GAGELER J