FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
Matter No S162/2009
THE QUEEN APPELLANT
AND
LK RESPONDENT
Matter No S163/2009
THE QUEEN APPELLANT
AND
RK RESPONDENT
The Queen v LK The Queen v RK [2010] HCA 17 26 May 2010 S162/2009 & S163/2009
ORDER
In each matter:
1. Appeal dismissed.
2.Appellant to pay the costs of the respondent except those occasioned by the respondent's notice of contention.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with H K Dhanji for the appellant in each matter (instructed by Commonwealth Director of Public Prosecutions)
J S Stratton SC with P G Hogan and A M Webb for the respondent in S162/2009 (instructed by Hanby & Associates)
T E F Hughes QC with M R Gracie and B C Kasep for the respondent in S163/2009 (instructed by instructed by Mee Ling Solicitors)
Interveners
S J Gageler SC, Solicitor-General of the Commonwealth with G M Aitken and P McDonald intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
J G Renwick with G E Wright intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v LK The Queen v RK
Criminal law – Conspiracy – Fault element – Where respondents charged with having conspired to commit offence against s 400.3(2) of Criminal Code (Cth) ("Code") – Whether s 11.5(2)(b) of Code required prosecution to prove intention in relation to each physical element of substantive offence particularised as subject of conspiracy, even if fault element prescribed for substantive offence was lesser fault element, such as recklessness – Whether elements of conspiracy wholly contained within s 11.5(1) of Code – Relevance of common law offence of conspiracy to interpretation of Code.
Constitutional law (Cth) – Federal judicature – Trial by jury – Appeal against directed verdict of acquittal – Application of State law – Section 107 of Crimes (Appeal and Review) Act2001 (NSW) ("State Act") provided right of appeal by Crown against directed verdict of acquittal – Whether, as matter of construction, s 68(2) of Judiciary Act1903 (Cth) ("Judiciary Act") picked up and conferred, in relation to Commonwealth offences, federal jurisdiction in terms created by s 107 of State Act – Whether guarantee of trial by jury in s 80 of Constitution infringed by appeal pursuant to s 107 of State Act as picked up by s 68(2) of Judiciary Act against directed verdict of acquittal of indictable offence against Commonwealth law where appeal turned solely on question of law.
Words and phrases – "conspiracy", "conspires", "intended that an offence would be committed", "recklessness", "trial by jury".
[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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Details
AGLC
R v LK [2010] HCA 17
Case
[2010] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals concerning the criminal offence of conspiracy and the constitutional validity of a provision allowing prosecution appeals against directed acquittals. The primary dispute involved whether the fault element for conspiracy under s 11.5(2)(b) of the Criminal Code (Cth) required intention, even when the underlying offence (dealing with proceeds of crime) only required recklessness. A secondary issue concerned whether s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), which permits prosecution appeals against directed verdicts, was contrary to s 80 of the Constitution, given that the proceedings commenced before s 107 came into effect.
The Court was required to determine the correct interpretation of the fault element for conspiracy under the Criminal Code, specifically whether the intention required for conspiracy could be satisfied by the recklessness of the underlying offence. Additionally, the Court had to consider the application of s 68 of the Judiciary Act 1903 (Cth) in conjunction with s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) to determine if a prosecution appeal against an acquittal, where the trial commenced before the relevant NSW legislation came into effect, was constitutionally permissible.
The Court reasoned that the offence of conspiracy under s 11.5(1) of the Criminal Code has a single physical element of conduct, which is conspiring with another person to commit a non-trivial offence. The default fault element for this conduct is intention. Therefore, the prosecution must prove that the accused intended that the object offence be committed pursuant to the agreement. The Court also accepted the common premise of the parties that s 68(2) of the Judiciary Act could confer jurisdiction to entertain appeals against directed verdicts of acquittal, consistent with existing authority. The Court found that the commencement of the trial, rather than committal proceedings, was the relevant point for the application of s 107 of the Crimes (Appeal and Review) Act.
In each matter, the appeals were dismissed. The appellant was ordered to pay the costs of the respondent, except for those costs occasioned by the respondent's notice of contention.
Orders
Orders of the court
In each matter:
1. Appeal dismissed.
2. Appellant to pay the costs of the respondent except those occasioned by the respondent's notice of contention.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ
(dissent)
HEYDON J
The Court of Criminal Appeal's conclusion that the law creating the offence of conspiracy is s 11.5(1) is correct[276]. The offence has a single physical element of conduct: conspiring with another person to commit a non‑trivial offence. The (default) fault element for this physical element of conduct is intention[277]. At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non-trivial offence particularised as being the object of the conspiracy. In charging a jury as to the meaning of "conspiring" with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard. The Code does not evince an intention in the latter respect to depart from fundamental principle with respect to proof of criminal liability[278].[276]RK and LK (2008) 73 NSWLR 80 at 91 [50] per Spigelman CJ, 94 [78] per Grove J, 94 [79] per Fullerton J. See also Ansari (2007) 70 NSWLR 89 at 105 [63] per Howie J, 124 [150] per Hislop J. [277]Code, s 5.6(1).[278]R v Mullen (1938) 59 CLR 124; [1938] HCA 12. Conclusion and orders The Court of Criminal Appeal was correct to uphold Sweeney DCJ's ruling on each of the no case applications. On the hearing of the appeals senior counsel for the appellant informed the Court of his instructions that the appellant would meet RK's costs of the appeal. The offer did not extend to the costs of RK's notice of contention, in respect of which it was submitted no order for costs should be made. The Commonwealth Deputy Director of Public Prosecutions, in a letter addressed to the Senior Registrar of the Court, advised that the Director takes the same position with respect to the other respondent, LK. The appeals should be dismissed with costs, save for the costs occasioned by the notices of contention. The appeals should be dismissed and the appellant's arguments against that course should be rejected because the reasoning of the Court of Criminal Appeal was correct for the reasons necessary to support it given by Gummow, Hayne, Crennan, Kiefel and Bell JJ[279]. It follows that there is no need to consider the contentions which the respondents advanced for the view that, even if the Court of Criminal Appeal's reasoning were wrong, their acquittal should be upheld on other grounds. The costs orders proposed by the plurality should be made. [279]At [90] and [92]-[122].
Ratio Decidendi
Legal Principle Established
Established by:
HEYDON J
No party to the present appeals contended that, as a matter of construction, s 68(2) could not confer the like jurisdiction to entertain an appeal against a directed verdict of acquittal as is conferred upon the Court of Criminal Appeal of New South Wales by s 107 of the Crimes (Appeal and Review) Act. There is no decision of this Court directly on the question so far as it relates to appeals against acquittal. However, the decisions of this Court in relation to Crown appeals against sentence and the implied rejection by separate majorities of the arguments of dissenters in relation to appeals against acquittals on questions of law suggest that s 68(2) can be construed to "pick up" and confer such jurisdiction. Subject therefore to the grounds set out in the notices of contention, the common premise of the parties and the interveners about the operation of s 68(2) should be regarded, in the light of the existing authority of the Court, as correct. The operation of s 107 of the Crimes (Appeal and Review) Act The respondents argued that no appeal lay to the Court of Criminal Appeal in relation to their acquittals because the commencement of the proceedings against them had predated the coming into effect of s 107 of the Crimes (Appeal and Review) Act. Their argument involved the following propositions: 1.The criminal proceedings against them began with the committal proceedings.2.The commencement of the committal proceedings predated the coming into effect of s 107.3.Absent clear words to the contrary, s 107 should not be construed as conferring jurisdiction on the Court of Criminal Appeal to entertain appeals in respect of acquittals arising out of trials following committal proceedings which commenced before s 107 came into effect. Pursuant to the Criminal Procedure Act 1986 (NSW) ("the CPA"), as it stood in 2006, the committal proceeding against the respondents commenced upon the filing in the registry of the Local Court of a court attendance notice, which was served on them on 18 October 2006[48]. Section 107 came into effect on 15 December 2006. Section 130 of the CPA provided that the trial of an accused person on indictment in the Supreme Court or the District Court of New South Wales commenced upon the presentation of the indictment and the arraignment of the accused[49]. The respondents were arraigned on 24 June 2008, and their trial commenced on that date. The provisions of the CPA applied by virtue of s 68(1) of the Judiciary Act to the trial in the District Court of New South Wales of the charges upon which the respondents were arraigned.[48]CPA, ss 47(1), 48, 52(4) and 53(1). [49]Section 130(2) of the CPA commenced: "The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned". And see R v Nicolaidis (1994) 33 NSWLR 364 at 367 per Gleeson CJ; R v Janceski (2005) 64 NSWLR 10 at 20 [41] per Spigelman CJ, 40 [205] per Wood CJ at CL, 42 [219] per Howie J (with whom Hunt AJA and Johnson J agreed).Section 178 of the CPA provided that all proceedings commence upon filing of a notice of court attendance. Absent the requisite filing within time, summary proceedings which ensued were held in Sharman v Director of Public Prosecutions (NSW) (2006) 161 A Crim R 1 to be not validly commenced.