R v Won & Singh
[2012] SADC 117
•14 September 2012
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WON & SINGH
[2012] SADC 117
Ruling of His Honour Judge Soulio
14 September 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Applicants charged with conspiracy – whether husband and wife can conspire – whether they can conspire with company of which they are principals.
Applicants sought quashing or a stay of criminal proceedings on the basis that the Information disclosed no offence. In the alternative applicants sought to have the Information dismissed in the interests of justice pursuant to s 11.5(6) of the Criminal Code.
Held: Application granted.
Criminal Law Consolidation Act 1935 (SA) s 281; Criminal Code Act 1995 (Cth) ss 11, 135; Acts Interpretation Act 1901 (Cth) ss 2B, 2C(1), referred to.
Kowbel v The Queen [1954] 4 DLR 337; Laila Jhina Mawji & Anor v The Queen [1957] AC 126; Mary Helen Byast v The Queen (1997) 96 A Crim R 61; R v LK; R v RK (2010) 241 CLR 177; Rondel v Worsley [1969] 1 AC 199; PGA v The Queen [2012] HCA 21; Wright v Cedzich (1930) 43 CLR 493; Midland Bank Trust Code Ltd & Anor v Green & Anor (No.3) [1979] 1 Ch 496; Chrastny (1992) 94 Crim App R 283; R v ICR Haulage Ltd & Ors [1944] 1 KB 551; R v McDonnell [1965] 1 QB 233; R v Shepherd (1998) 94 FLR 55; R v Dowding [2000] VSC 439; R v Turner & Ors (No.15) (2001) TASSC 144; Mok (1997) 27 A Crim R 438; Ridgeway v The Queen (1995) 184 CLR 19; R v Smith [1995] 1 VR 10; R v McGee (2008) 102 SASR 318; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; R v L (1991) 174 CLR 379, considered.
R v WON & SINGH
[2012] SADC 117Introduction
Ms Won and Mr Singh, who are married, are charged with conspiring with one another, and with Pernas International Pty Ltd (‘Pernas’), the company of which they are directors and shareholders, to dishonestly obtain a financial advantage by providing false information to Customs to reduce the amount of Customs Duty and GST payable on imported timber.
They seek the quashing of the Information on the basis that a conspiracy cannot be committed between husband and wife. They further assert that the principals of a company cannot conspire with that company where, on the prosecution case, the actions of the company, were the actions of its principals.
The Charges
The applicants are charged on Information dated 23 May 2011 with conspiring to dishonestly obtain a financial advantage by deception.
The particulars of the offence alleged are that:
Between 30 June 2006 and 31 August 2008 at Frewville in the State of South Australia and elsewhere, Paul Ranjeet Singh conspired with Betty Won and Pernas International Pty Ltd to dishonestly obtain a financial advantage by deception contrary to sections 11.5(1) and 134.2(1) of the Criminal Code (Cth) 1995.
The particulars of the financial advantages obtained and the deceptions are that Paul Ranjeet Singh and Betty Won, being directors and shareholders of Pernas International Pty Ltd (‘Pernas’) caused false understatements to be made to the Australian Customs and Border Protection Services (‘Customs’), a Commonwealth entity, about the amount Pernas paid for imported timber in Entries for Home Consumption in order to reduce:
a. Customs Duty payable by Pernas to Customs:
and
b. Goods and Services Tax payable to Customs for the Commonwealth;
The Allegations
Pernas was an importer and wholesaler of merbau decking timber. The Commonwealth Director of Public Prosecutions (‘the DPP’) alleges that Pernas agreed to provide false information to Customs, via its Customs broker. Ms Won and Mr Singh, as directors and shareholders of Pernas, are said to have agreed to fax the false invoices to the Customs broker, thereby under-declaring the value of the timber imported by Pernas, and causing each “Entry for home consumption” prepared by the broker and lodged with Customs, to contain false information.
The DPP asserts that the prevailing market rate for merbau decking timber was between USD900 and USD1250 per cubic metre. Pernas is said to have paid the market rate to suppliers in Indonesia by international funds transfer, and then created false supplier invoices at USD250 per cubic metre. Pernas then submitted shipping documents, including the fraudulent invoices, to Customs brokers who prepared the “Entries” and collected Duty and GST. The DPP asserts that the amount of Customs Duty evaded was $122,486.24, and the GST evaded was $312,068,50 – a total of $434,554.74.
The Application
The applicants seek an order pursuant to s 281(1) of the Criminal Law Consolidation Act 1935 (SA) quashing the Information on the ground that it is defective on its face in charging an offence not known to the law.
The applicants assert that the offence of conspiracy, pursuant to s 11.5(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’), cannot be committed where the alleged co-conspirators were lawfully married, as Ms Won and Mr Singh were at the time of its commission. The applicants further contend that the inclusion of an allegation that the applicants each conspired with Pernas makes no difference, as, on the prosecution’s own case, any alleged act or agreement by Pernas was an act or agreement by one of the applicants.
In the alternative, the applicants seek the dismissal of the Information in the interests of justice pursuant to s 11.5(6) of the Criminal Code, or seek a permanent stay, on the basis of an assertion that the Information is foredoomed to failure, or on the basis that the DPP failed to provide adequate particulars.
The Commonwealth Offence of Conspiracy
Section 11.5 of the Criminal Code creates the Commonwealth offence of conspiracy to commit an offence. The section relevantly provides:
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
At common law it has long been held that a lawfully married couple cannot be guilty of conspiracy. In Kowbel v The Queen[1] the majority of the Supreme Court of Canada accepted that it was a well settled rule of the common law that a husband and wife are legally incapable of conspiring together for they are considered as constituting but one juristic person.
[1] Kowbel v The Queen [1954] 4 DLR 337.
There, a charge was laid under a section of the Canadian Criminal Code which provided that:
Every one is guilty of an indictable offence, who in any case not otherwise provided for, conspires with any person to commit any indictable offence.
The prosecution submitted that those broad terms necessarily included husbands and wives, and that their matrimonial status did not eliminate the essential element of duality in the crime of conspiracy.
Taschereau J summarised the history of the rule at some length. He concluded:[2]
There are no judgments in Canada, dealing with this particular matter, but I think it is well settled that since many centuries, it has been the law of England that a husband and wife cannot alone conspire to commit an indictable offence. These views have been expressed during over six centuries, and I would be slow to believe that the hesitations of a few modern writers could justify us to brush aside what has always been considered as the existing law. It may very well be amended by legislative intervention, but as long as it is not, it must be applied.
[2] Ibid at 341, per Taschereau J
In Mawji v The Queen,[3] a decision of the House of Lords on appeal from the Court of Appeal for Eastern Africa, the House of Lords was called upon to determine whether a husband and wife, married in accordance with the laws of Tanganyika, and who had been convicted in the District Court of Dar es Salaam of conspiracy to obstruct, prevent, pervert or defeat the course of justice by hiding a wall clock they knew was required for the purpose of an inquiry into a criminal offence, could in fact be guilty of conspiracy, given that they were married.
[3] Laila Jhina Mawji & Anor v The Queen [1957] AC 126.
In the reasons, reference is made to the rule of English criminal law that a husband and wife could not be guilty of conspiracy. The House of Lords held that the words “conspires” and “conspiracy” in English criminal law were not applicable to a husband and wife alone, and the words “other person” in s 110(a) of the penal code of Tanganyika, if English criminal law were to be applied to their “interpretation” or “meaning”, could not, in that context, include a spouse.[4]
[4] Ibid at 134-135.
The Lords cited with approval the rule stated in Archbold’s Criminal Pleading, Evidence and Practice, 33rd ed, p.22: [5]
A husband and wife cannot “alone be found guilty of conspiracy, for they are considered in law as one person, and are presumed to have but one will.”
[5] Ibid at 134.
Here the DPP contends that the Criminal Code does not import the doctrine of conjugal unity. Counsel submitted that the Criminal Code is intended to be an exhaustive repository of principles of criminal responsibility for Commonwealth offences[6] and that common law may only be read into the Criminal Code where there is no express statutory modification, and where words are used which have an established legal meaning within the criminal law at the time the Criminal Code was enacted.[7]
[6] Section 2.1 Criminal Code 1995 (Cth).
[7] R v LK; R v RK (2010) 241 CLR 177 at [107].
The DPP contended that there is no basis for concluding that a husband and wife are, for any purpose in construing a Commonwealth Act, the one person or individual. The word “persons” is defined in the Dictionary as a Commonwealth authority that is not a body corporate, and “another” has a corresponding meaning. That definition, when read with the provisions of s 11.5, it was submitted, identifies who may be parties to a conspiracy, and obviates the need to resort to the common law to determine that question.
Section 11.5(2) of the Criminal Code provides that for a person to be guilty of conspiracy, “the person must have entered into an agreement with one or more other persons”. The note to the definition states that it supplements s 2C(1) of the Acts Interpretation Act 1901 (Cth), which provides that “person” includes a body politic or corporate as well as an individual. “Individual” is defined in s 2B of the Acts Interpretation Act 1901 as meaning a “natural person”.
The DPP submitted that it was plainly the intent of Parliament, in creating the offence of conspiracy under the Criminal Code, to not provide for parties to be incapacitated by reason of marriage.[8]
[8] See R v LK; R v RK (2010) 241 CLR 177 at [99]–[106] setting out the legislative history incorporating the MCCOC final report (1992).
The Model Criminal Code Offices Committee (‘MCCOC’) report in 1992 set out a draft for a Model Criminal Code, which stated the general principles of criminal responsibility including the offence of conspiracy. Chapters 1 and 2 of the Criminal Code, including s 11.5, are based on the draft provisions. In the commentary the MCCOC said of the relevant draft provisions:[9]
No protection is provided for spouses. Clearly a husband and wife can be guilty of conspiring with each other. Marital immunity is outdated; any objections to husband/wife conspiracies are objections which go to the nature of the conspiracy offence itself; see Laila Jhina Majwi & Anor v The Queen [1957] AC 126; Kowbel v The Queen [1954] SCR 498, and discussion by the Gibbs Committee at paragraph 39.3. Some Griffith codes are also outdated on this issue: see s 33 Queensland Code (recommended for repeal by O’Regan, page 5, and s 297(2) Tasmanian Code, both taking the common law position.
[9] Model Criminal Code Offices Committee, Model Criminal Code, Chapter 2; General Principles of Criminal Responsibility, Final Report (December 1992) at 103.
The DPP relied on that commentary, and submitted that the “rule” is an anachronism and that common law rules and immunities may be revised from time to time, and that public policy is not immutable and should be re-examined if there is doubt as to whether it is justifiable in present day conditions.[10] No Australian authority has expressly decided that the doctrine of conjugal unity was ever received as part of the common law of Australia, and, if so, to what extent. The rule has attracted academic and judicial criticism.[11]
[10] See Rondel v Worsley [1969] 1 AC 199, per Lord Reid at 227; and R v L (1991) 174 CLR 379.
[11] Williams, “The Legal Unity of Husband and Wife” (1946) 10 Modern Law Review 16.
Kowbel and Mawji were cited with approval by the Queensland Court of Appeal in Byast,[12] albeit it that, as counsel for the DPP submitted, the point was obiter dicta in Byast, where the court assumed the existence and correctness of the rule.
[12] Mary Helen Byast v The Queen (1997) 96 A Crim R 61 at 62.
There has been legislative intervention; in Tasmania enacting the common law rule;[13] in the Northern Territory abolishing the rule;[14] and in Victoria, partially abolishing the rule, but only for conspiracies to commit murder and treason.[15] The common law rule has been given statutory force in the United Kingdom.[16]
[13] Section 297(2) of Schedule One of the Criminal Code Act 1924 (Tas).
[14] Section 291 of Schedule One of the Criminal Code Act 1983 (NT).
[15] Section 339 of the Crimes Act 1958 (Vic).
[16] Section 2(2) Criminal Law Act 1977 (UK).
Following the hearing in this matter counsel for the DPP drew the court’s attention to the decision of the High Court in PGA v The Queen[17] which involved a charge of rape by a man against his wife, allegedly committed in 1963. The High Court was called upon to decide whether a charge in 2010 could be substantiated, that is, whether the accused could be guilty of the offence of rape, when such rape was said to have happened within the course of his marriage.
[17] PGA v The Queen [2012] HCA 21.
The defence to a charge of “rape in marriage” is historically based upon the statement by Hale that a “husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in this kind unto her husband, which she cannot retract”.[18]
[18] Ibid at [6].
That view, based on the idea of an irrevocable consent to intercourse, was held to be no longer valid, if ever valid.
French CJ referred to the changing nature of the role of women within marriage given the enactment of the divorce legislation, and the Commonwealth Franchise Act 1902 (Cth) as well as the observations in 1930, by Isaacs J in Wright v Cedzich that:[19]
Women are admitted to the capacity of commercial and professional life in most of its branches, that they are received on equal terms with men as voters and legislators, that they act judicially, can hold property, may sue and be sued alone.
[19] Wright v Cedzich (1930) 43 CLR 493 at 505, cited in PGA v The Queen at [63].
French CJ held:[20]
By the time of the enactment in 1935 of the CLC Act, if not earlier (a matter which it is unnecessary to decide here), in Australia local statute law had removed any basis for continued acceptance of Hale's proposition as part of the English common law received in the Australian colonies. Thus, at all times relevant to this appeal, and contrary to Hale's proposition, at common law a husband could be guilty of a rape committed by him upon his lawful wife. Lawful marriage to a complainant provided neither a defence to, nor an immunity from, a prosecution for rape.
To reach that conclusion it is unnecessary to rely in general terms upon judicial perceptions today of changes in social circumstances and attitudes which had occurred in this country by 1935, even if it were an appropriate exercise of legal technique to do so. The conclusion follows from the changes made by the statute law, as then interpreted by the courts, including this Court, before the enactment of the CLC Act.
[20] PGA v The Queen [2012] HCA 21 at [64] & [65].
Ultimately I do not consider that the learned analysis in PGA v The Queen is of direct applicability to the present circumstances.
There seems little argument that the original suggested rationales for the common law rule regarding conspiracy between husband and wife have been discredited – namely that the husband and wife were one person with one mind and will, or that a wife had no independent legal rights, or that a wife was bound to do as instructed by her husband.
The rationale contended for by the applicants here is that the common law encourages the stability of marriage and the criminalisation of mere agreement between husband and wife would have a significant effect in discouraging marital confidences and the quality of marital relationships.
In Midland Bank v Green, Oliver J said:[21]
That the common law rule was and is that a husband and wife cannot be convicted of the crime of conspiracy in circumstances in which they are the only parties to the conspiracy alleged is, as I have said, conceded in the instant case and, I think, rightly conceded.
[21] Midland Bank Trust Code Ltd & Anor v Green & Anor (No.3) [1979] 1 Ch 496 Per Oliver J at 520-521.
And went on to say:
I infer therefore, that the continued existence of the rule, in relation to the crime of conspiracy rests, as the more modern cases suggest, not on a supposed inability to agree as a result of some fictional unity, but upon a public policy which, for the preservation of the sanctity of marriage, accords an immunity from prosecution to spouses who have done no more than agree between themselves in circumstances which would lay them open, if unmarried, to a charge of conspiracy. The two Dominion cases to which I have already referred and a number of American authorities which Mr Munby has been good enough to extract for me illustrate the reluctance of the courts in common law jurisdictions to erode, in the sphere of the criminal law, accepted immunities from prosecution, save where express and unequivocal legislative enactment compels.[22]
Moreover, in the present context, the limits of the operation of the rule relating to criminal conspiracy should be noted. The crime of conspiracy rests in the very agreement itself and the criminal law never conferred any immunity on spouses who actually carried out, whether individually, or in concert, the criminal design. Nor was there any immunity in respect of conspiracies to which a stranger was party and in such a case both husband and wife were individually liable and properly charged with a single tri-partite agreement.[23]
[22] Ibid at 521.
[23] Ibid.
Does the common law definition of conspiracy, and its attendant rules, have a part to play in the assessment of whether a Commonwealth charge of conspiracy may be made out? Although the words “conspires” and “conspiracy” in s 11.5(2) are not defined in the Criminal Code, the words have an established meaning within the common law, and their use in the Criminal Code without definition was intended to be understood by reference to the legal meaning at common law subject to express statutory modification in the remainder of s 11.5.[24]
[24] R v LK; R v RK (2010) 241 CLR 177 at [107].
The plurality judgment in R v LK; R v RK notes:[25]
Spigelman CJ's conclusion that the words "conspires" and "conspiracy" in s 11.5(1) are to be understood as fixed by the common law subject to express statutory modification is to be accepted. Contrary to the appellant's written submission it involves no departure from principle. These are words that had an established meaning within the criminal law at the time the Code was enacted. Their use, without definition, in the statement of the Code offence was intended to be understood by reference to that legal meaning. On the hearing of the appeals senior counsel for the appellant accepted so much. However, the appellant did not accept Spigelman CJ's application of the common law principles stated in the joint reasons in Giorgianni regarding proof of the fault element of conspiracy to commit an offence of recklessness under the Code.
[25] Ibid.
The High Court said further of s 11.5(1):[26]
It reads naturally as the law creating the offence. It is by the adoption of the word “conspires”, with its established legal meaning, that the drafters of the Code chose to deal with questions that are not otherwise addressed in s 11.5. These may be taken to include the parties to the conspiracy and the sufficiency of their dealings to constitute the agreement. … Section 11.5(1) is the specification of a physical element of the offence, namely, conspiring with another person to commit a non trivial offence. Central to the concept of conspiring is the agreement of the conspirators.
[26] Ibid at [131].
Whatever may be its attraction as a more realistic modern day assessment of the nature of the relationship of marriage, it seems to me that the MCCOC commentary as to the abolition of the “rule” cannot stand, given the decision of the High Court in R v LK; R v RK. The Code does not contain clear and unambiguous provisions abrogating the rule at common law.
Odgers, in an article in the Criminal Law Journal, expressed the opinion that the most obvious implication of the judgment of the High Court in R v LK; R v RK, is that it simplifies the law relating to conspiracy under the Commonwealth Code in one respect, but complicates it in another. The complication of the law relating to conspiracy under the Commonwealth Code is that, in all cases, the common law in relation to conspiracy will be applicable, subject to any modification in the remainder of s 11.5.[27]
[27] Odgers; Conspiracy to Commit Commonwealth Offence (2010) 34 Crim LJ 240 at 240.
I accept the contention of counsel for the applicant Ms Won, that the effect of what fell from the High Court in R v LK; R v RK, is to make the terms “conspire” and “conspiracy” have their meanings defined by common law, even within the context of the Criminal Code.
At common law it is an essential ingredient of the offence of conspiracy that the criminal agreement is between an accused and someone other than their spouse.[28] Despite what may be regarded as an anachronistic view of the nature of a relationship between husband and wife, that common law rule remains in place, even if it is thought that public policy has changed.[29]
[28] Midland Bank Trust Code Ltd & Anor v Green & Anor (No.3) [1979] 1 Ch 496 at 511.
[29] Ibid at 517.
Accordingly, for the purposes of s 11.5(1), I accept that the common law definition of conspiracy applies, and that, in turn, a husband and wife cannot be guilty of conspiracy, if they are the only conspirators.
Conspiracy With a Company
However, a husband and wife may be convicted of conspiracy if they conspire with a third person, as they will have then conspired to commit the relevant offence with someone other than their spouse.[30]
[30] Chrastny (1992) 94 Crim App R 283.
The question then becomes whether the applicants can be convicted of the offence of conspiracy on the basis of an asserted conspiracy with Pernas.
Section 11.5()(b) of the Criminal Code provides that “a person may be found guilty of conspiracy to commit an offence even if; …(b) the only other party to the agreement is a body corporate.” That section is the enactment of the draft provision developed by the MCCOC, and in commenting on the effect of the draft conspiracy provisions, the MCCOC said:[31]
Section 405.3[32] makes it possible for a corporation to be a party to a conspiracy. It is well established at common law that a company can be guilty of conspiracy, see ICR Haulage [1944] 1 K B 551; Simmonds (1967) 51 Crim App R 316. The Code does not deal with difficult questions about conspiracies between companies with interlocking directors, or the case where the individual accused is the relevant “controlling officer” of the corporation, see McDonnell [1966] 1 Q B 233. The most comprehensive summary of these problems is to be found in Goode, Criminal Conspiracy in Canada (1975) at 109-134.
[31] Model Criminal Code Offices Committee, Model Criminal Code, Chapter 2; General Principles of Criminal Responsibility, Final Report (December 1992) at 105.
[32] Which is relevantly identical to s 11.5(3)(b) of the Code.
The DPP submitted that, accordingly, the prosecution may proceed on the basis that Ms Won conspired with Pernas, a separate legal person acting through the mind and will of her husband; and that Mr Singh conspired with Pernas, a separate legal person acting through the mind and will of his wife.
The DPP contended that when each of the applicants performed an act, using Pernas, in furtherance of their agreement, for example by sending false invoices to the Customs broker, the individual applicant did so using Pernas, by agreement with the other applicant. Further, when Pernas received the benefit of the unlawful agreement, each of the individual applicants agreed that it did so for the benefit of both of them.
At common law a company may be convicted of the offence of conspiracy.[33] However, a company can only commit the crime of conspiracy through the acts of a natural person. Its directing will is provided by the person, or persons, who direct and control its activities. The state of mind of those persons is treated as the state of mind of the company.[34]
[33] R v ICR Haulage Ltd & Ors [1944] 1 KB 551; R v McDonell [1965] 1 QB 233.
[34] R v McDonnell [1965] 1 QB 233 at 241.
Accordingly, in order for a company to conspire, a natural person has to enter into an agreement on behalf of the company, with another person, to commit an offence. A company can be guilty of committing a conspiracy where a person, sufficiently senior in the management of the company for their conduct to be regarded as that of the company, enters into an agreement to commit an offence.[35]
[35] Gillies, The Law of Criminal Conspiracy, 1990, 2nd ed, Federation Press, Sydney at p 65.
A conspiracy requires the agreement of two or more assenting minds. The question then arises as to whether there can be a conspiracy if the only two parties alleged to be parties to the conspiracy, are a company, and a person who is the person responsible for the acts of the company.
In R v McDonnell Neild J said:[36]
… The true position is that a company and a director cannot be convicted of conspiracy when the only human being said to have broken the law or intended to do so is the one director. …
[36] R v McDonnell [1965] 1 QB 233 at 246.
The learned author of The Law of Criminal Conspiracy said:[37]
… [E]ven where there are persons in the company apart from the defendant who may act for it, if these persons do not actually act in such a way as to make the company party to a criminal agreement with D, then no such agreement is concluded between D and the company.
[37] Gillies, The Law of Criminal Conspiracy, 1990, 2nd ed, Federation Press, Sydney at pp 65-66; and see Martin [1933] 1 D L R 434 at p 441 (Dennistown J), at p 459 (Robson JA).
The learned author of Criminal Conspiracy in Canada[38] contends that more than one director, officer or employee can together be the directing will of a company by which the company acts, and can therefore together enter into a criminal agreement on a company’s behalf.
[38] Goode, Criminal Conspiracy in Canada, 1975, The Carswell Company Ltd, Toronto at pp 121-122.
Here, however, where the conspiracy charged is between the company, and the two directors who are the directing will of the company, a conspiracy between Mr Singh and the company, and between Ms Won and the company, can only arise if it can be concluded that Mr Singh can conspire with the company because Ms Won’s intent, and not Mr Singh’s intent, is imputed to the company; and Ms Won can conspire with the company because Mr Singh’s intent, and not Ms Won’s intent, is imputed to the company.
Counsel for Ms Won submitted that, as Goode contends, such an approach is complex, far removed from reality, and without supporting authority. The learned author of Criminal Conspiracy in Canada suggests that US common law does not permit such an approach, and counsel for Ms Won submitted that the common law of Australia does not permit such an approach.
I accept the submission of counsel for Ms Won that the effect of s 11.5(3)(b) of the Criminal Code is to re-state the common law that a corporation may be convicted as a party to a conspiracy, and that the common law rules as to the circumstances in which a corporation and its directors may be charged as separate parties to a conspiracy, remain applicable to a charge of conspiracy pursuant to s 11.5 of the Criminal Code.
It seems apparent that an individual applicant cannot be convicted of conspiring with Pernas in relation to that applicant’s own actions taken on behalf of Pernas, as there is no separate mind with which to conspire. The remaining question is whether an individual applicant could be convicted of conspiring with Pernas, by the prosecution relying on the actions and imputed intention of the other as the directing will by which Pernas entered into such a conspiracy.
Given the way in which the prosecution’s case is framed, it could not be said, as a matter of law, that Ms Won and Mr Singh conspired with Pernas. Since the acts and intention of Singh cannot be relied upon by the prosecution to establish a conspiracy between him and Won, given that they were husband and wife at the time, it would be inconsistent with the principle applied by Neild J in R v McDonnell,[39] for the law to permit the prosecution to use Mr Singh’s acts and intention as those of the company, when the law does not permit the prosecution to use them for him personally.
[39] R v McDonnell [1965] 1 QB 233 at 246.
I conclude that the Information should be quashed as it does not charge, as between the alleged parties, an offence known to law.
Dismissal of Charge of Conspiracy in the Interests of Justice
The alternative position taken by the applicants is that the Information should be dismissed pursuant to s 11.5(6) of the Criminal Code which provides:
11.5(6)A court may dismiss a charge of conspiracy if it thinks that the interests of justice require it to do so.
In R v Dowding,[40] Teague J, in considering the predecessor provision then contained in s 86(7) of the Crimes Act 1914 (Cth) said that the section conferred a true discretion which is to be exercised judicially. There is no onus on any party, and it was appropriate to have regard to many different considerations in determining if the discretion ought to be exercised by the court, including whether it would be more appropriate for substantive offences to have been charged rather than the offence of conspiracy, whether the charge of conspiracy was likely to increase the complexity of the trial and whether the charge of conspiracy caused the potential for injustice to the accused to arise during the trial.[41]
[40] R v Dowding [2000] VSC 439.
[41] Ibid at [20].
The DPP asserts that it is able to prove that each of the applicants were actively involved in the day to day running of the business of Pernas, and that each of them must have known that Pernas was systematically creating false invoices that deliberately understated the value of goods being imported, and routinely submitting the false invoices to its Customs broker. By their active participation in the running of the business, each was thereby a knowing participant in the fraud by Pernas. The prosecution concedes that it cannot prove in relation to any particular creation of, or sending of, a false invoice to the Customs broker, which of the two, actually created any particular document, or sent in particular facts, or gave the instruction or direction to the other to do so.
The prosecution submits that a prosecution for individual or substantive counts of dishonestly obtaining a gain, contrary to s 135.1 of the Criminal Code, could not, at the time the offences were allegedly committed, have proceeded on the basis of a joint criminal enterprise.
The prosecution asserts that in the operation of the business of Pernas, the applicants “established an ongoing organisational framework for [their] general (fraudulent) activity” and a charge of conspiracy to set up and operate the organisation “accords with the reality of the situation”[42] and that having regard to the fact that a joint criminal enterprise could not, at the time of the offending, be alleged against the defendants, the count of conspiracy reflects the criminality involved, more appropriately than the substantive counts.[43]
[42] See R v Shepherd (1998) 94 FLR 55, per Street CJ at 310.
[43] See R v Dowding [2000] VSC 439, per Teague J at [20].
One of the reasons courts have been given a discretion to dismiss charges of conspiracy was to prevent conspiracy prosecutions proceeding when substantive offences had been allegedly committed, and it was more appropriate for charges of those offences to be laid.[44]
[44] R v Turner & Ors (No.15) (2001) TASSC 144 per Blow J at [6]-[7].
Here, the applicants rely on the contention that the prosecution could have charged substantive offences. Further, the applicants point to the fact that the prosecution did in fact originally charge substantive offences when, on 29 July 2009, the DPP laid an Information in the Adelaide Magistrates Court jointly charging the applicants with 131 counts of acting with the intention of dishonestly obtaining a gain from Customs, contrary to s 135.1(1) of the Criminal Code.
It is not disputed that the Customs investigation against the applicants commenced in early 2008, and on 12 August 2008 Customs officers executed search warrants at the applicants’ home, which was also the registered office of Pernas, and seized thousands of documents, and electronic files contained on four computers. Almost a year later the first Information, charging the substantive offences, was laid.
The affidavit of Ms Won, sets out the chronology of events in the Adelaide Magistrates Court relating to the first Information. That Information was listed for the charges to be answered on 12 February 2010, just over six months later, and it was on that date that the present Information, charging conspiracy was laid.
In relation to the exercise of the discretion, counsel for Ms Won submitted that the conspiracy charge would unnecessarily complicate a trial by requiring difficult and confusing legal directions regarding the conspiracy between the applicants, as husband and wife, and their company. The jury would have to be directed that in order to convict they would need to find proven, a conspiracy between Ms Won and Pernas, and between Mr Singh and Pernas, but ignore the issue of whether there was a conspiracy between Ms Won and Mr Singh.
The applicants contend that the complexity which would arise during the trial on the charge of conspiracy is a significant factor in considering the exercise of the discretion to dismiss the Information in the interests of justice, particularly where the substantive offences are available.[45]
[45] Mok (1997) 27 A Crim R 438 at 443; Goode, Criminal Conspiracy in Canada (supra) at p 122, pp 136-137.
Ultimately, I do not need to consider whether I should exercise a discretion to dismiss the charges pursuant to s 15(6) of the Criminal Code, given the conclusions I have reached as to the validity of the charge of conspiracy.
Foredoomed to Failure
In the further alternative, the applicants contended that the proceedings should be permanently stayed as the charge will inevitably fail and it would be oppressive and vexatious for the trial to proceed against Ms Won.[46]
[46] Ridgeway v The Queen (1995) 184 CLR 19 at 41, per Mason CJ, Deane and Dawson JJ. See also R v Smith [1995] 1 VR 10. The DPP in preparing the recommendation as to category, described the action in the following terms: “The facts of the matter are complex, there are 48 witnesses and 13 volumes of documentary exhibits.”
The applicants assert that the prosecution is foredoomed to failure because of a difficulty in establishing, to the necessary degree, the actions taken by the accused and, in particular Ms Won, as to the conspiracy.
The prosecution relies on the fact that the evidence tendered in the Magistrates Court was sufficient for a case to answer to be found against Ms Won. It is common ground that Mr Singh conceded a case to answer. As the prosecution contends, the test for a permanent stay is more onerous than the test for finding that there is no case to answer.[47]
[47] R v McGee (2008) 102 SASR 318.
In McGee Doyle CJ said that criminal proceedings should be stayed at the outset on the basis that they are bound to fail, only if it is clear that the prosecution case will inevitably fail, which is to be considered not by the court weighing the quality of the evidence, but on the basis that evidence will be accepted unless patently incredible, and on the basis that all inferences favourable to the prosecution case that could be drawn will be drawn.[48]
[48] Ibid at [90].
Applying that test, it does not seem to me that it could reasonably be said that the prosecution is foredoomed to failure.
Inadequacy of Particulars
The final position adopted by the applicants is that the Information is defective in that it does not identify essential factual ingredients of the offence charged as is required.[49] The applicants complained that the Information fails to state whether each of the applicants, and at least one other party to the criminal agreement, intended that an offence would be committed pursuant to the agreement, which is said to be a necessary factual ingredient of the offence by virtue of the provisions of s 11.5(2)(b) of the Criminal Code.
[49] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 520; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [26].
Further, it is asserted that the Information fails to specify the overt acts relied upon by the prosecution, and the identity of the persons whom the prosecution alleges performed the overt acts, despite the necessity to prove that at least one overt act was performed by a conspirator, by virtue of the provisions of s 11.5(2)(c) of the Criminal Code. It is asserted that the Information does not provide proper particulars of the alleged conspiracy. A number of other defects in the particulars, or a failure to provide particulars, are asserted.
It seems to me however, that defects in the particulars are capable of correction, and could be the subject of a direction as to provision of particulars. The complaints, even if established, are not fatal to the prosecution on the present Information.[50]
[50] Counsel for Won ultimately conceded that an inadequacy of particulars could be addressed by a direction as to the provision of particulars.
Conclusion
It follows from the submissions which I have accepted, that I would quash the Information on the basis that there is no possibility of conviction on a charge of conspiracy between husband and wife, and no possibility of conviction on a charge of conspiracy between either of the individual applicants and the company, where the two accused were the controlling minds of the company.
I therefore grant the application to quash the Information.
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