Bugmy v The Queen

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.