Agius v The Queen [2013] HCA 27

Case note: Agius v The Queen [2013] HCA 27 

Facts

The appellant, Agius, was charged and convicted of two counts of conspiracy to defraud the Commonwealth in relation to tax fraud (at [1]). The first count was brought pursuant to ss 86(1) and 29D of the Crimes Act 1914 (Cth) (“Crimes Act”) (at [1]). The second count was brought pursuant to s 135.4(5) of the Criminal Code 1995 (Cth) (“the Code”) (at [1]). The reason why two counts were brought was because the offences under the Crimes Act were repealed with effect from 24 May 2001, being replaced by s 135.4(5) of the Code (at [2]).

Agius’ Case

Agius contended before the trial judge, NSW Court of Criminal Appeal (“NSWCCA”) and the High Court that the second count was bad, as the particulars of the charge did not allege the formation of a new conspiracy after 24 May 2001 (at [3]). Section 135.4(5) of the Code states,

“A person is guilty of an offence if:

(a) the person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person; and

(b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and (c) the third person is a Commonwealth entity.”

Agius argued that the offence under s 135.4(5) of the Code was the entering into of a conspiracy (at [17]). To support this construction, Agius cited s 135.4(9) of the Code (at [18]), that states,

“For a person to be guilty of an offence against this section:

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.” (emphasis added).

His argument was that s 135.4(9) of the Code formed an element of the offence of conspiracy, and as such, it was the entering into of the conspiracy, not its existence, that was the relevant criminal conduct.

Neither the NSWCCA nor the trial judge accepted this argument, finding that s 135.4(5) criminalised the existence of a conspiracy, and not its formation (at [21], [35]-[36]). The basis for this conclusion is that, it would be “highly artificial – to an absurd degree” that a conspiracy formed prior to the effect of the Code, but which continued to be implemented afterwards, could not be punishable “because the alleged conspirators failed, on the change of legislation, to renew, or remake, their agreement.” (R v Agius [2011] NSWSC 367 at [40], cited at [20]).

Before the High Court, Agius also contended that on his construction of s 135.4(5), the trial judge and the NSWCCA wrongly applied s 4.1 of the Code (at [21]-[22]), that states,

“(1) A physical element of an offence may be:

(a) conduct; or

(b) a circumstance in which conduct occurs; or

(c) a result of conduct.

(2) In this Code: conduct means an act, an omission to perform an act or a state of affairs. engage in conduct means:

(a) do an act; or

(b) omit to perform an act.”

As the interpretation adopted by the trial judge and the NSWCCA of s 135.4(5) was that it criminalised the existence of a conspiracy, and that constituted a ‘state of affairs’, the relevant conduct (physical element) of the charge was made out. Naturally, if Agius’ interpretation of s 135.4(5) were accepted, then this construction adopted by the trial judge and the NSWCCCA of s 4.1 must be rejected.

On the basis that s 135.4(5) criminalised the formation of a conspiracy and not its continued existence, Agius also argued that s 135.4(5) was applied retrospectively. As the rules of statutory interpretation require that, for a penal statute to have retrospective operation, such must be expressed by clear words within the legislation to that effect (at [23]).

Finally, Agius submitted that, by virtue of the transitional provisions under the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth), Sch 2, Item 418 (“the Transitional Provisions”), the offences under the Crimes Act continued to have operation after the coming into effect of s 135.4(5) of the Code, and so it was unnecessary to charge the second count in respect of a conspiracy formed before 24 May 2001 (at [24]).

The Decision

The High Court (French CJ, Hayne, Crennan, Keifel, Bell and Keane JJ, Gageler J agreeing) rejected Agius’ submissions, accepting almost completely the conclusions reached by the courts below.

The Construction of s 135.4(5)

With regard to the offence of conspiracy, the majority held that, while the Code did codify the criminal law, nonetheless in accordance with the previous decision of the High Court in The Queen v LK [2010] HCA 17 at [59], [72] and [93], that “except as expressly modified by the statutory text, common law concepts informed the provisions of the Code concerned with conspiracy” (at [32]). That decision was important since it considered s 11.5(1) of the Code, which was “cast in materially similar terms to s 135.4(5) of the Code” (at [27]). The reasoning for this is that the terms ‘conspiracy’ and ‘conspire’ are not defined within the code (at [32]). At common law, while the offence of conspiracy is complete when the conspiratorial agreement is entered into, it does not end at that point (at [30]). If the conspiracy is performed, it is a continuing offence that does not come to an end until the completion of its performance or its abandonment (at [30], see R v Doot [1973] AC 807 at 827).

The majority further held that s 135.4(9) did not form an element of the offence, again citing The Queen v LK [2010] HCA 17 at [133] where the court considered the equivalent to s 135.4(9) of the Code, as the offence of conspiracy is constituted by the intention to be, and the act of being, a party to an agreement to perform an unlawful act (at [34]). Section 135.4(9) is not an element, rather the statement “entered in an agreement” refers to the conduct criminalised under s 135.4(5) (at [34]).

Gageler J, while agreeing with the majority, and adopting their reasons with regard to the other arguments advanced by Agius, nonetheless handed down separate reasons (at [53]-[62]). While expressing his agreement with the majority’s construction of s 135.4(9), and the continued application of the common law to the offence of conspiracy, his Honour nonetheless expressed doubt as to how s 135.4 was addressed to transitional provisions though he did not elaborate (at [61]).

Construction of s 4.1(1)

As a matter of ordinary language, the existence of a conspiracy is a state of affairs. Also an on-going conspiracy must be an on-going offence (at [42]). The court concluded that to be party to a conspiracy – to engage in the physical act of participating in a conspiracy – is the bringing about of one’s part in that state of affairs (at [42]-[44]). In accordance with the court’s construction of s 135.4(5) as pertaining to the existence of conspiratorial conduct and not entry into a conspiracy, s 4.1(1) merely supports that interpretation.

Retrospectivity and Transitional Provisions

The court gave both these arguments short shrift. Firstly, s 135.4(5) was not given a retrospective operation, as the only way that contention could be accepted was if Agius’ construction of s 135.4(5) (that it criminalised only the entering into of a conspiracy) was likewise adopted (at [49]). As for the Transitional Provisions, they merely served to criminalise conduct that occurred before 24 May 2001 and not on or after (at [49]). Indeed, in oral arguments before the High Court, counsel for Agius’ accepted that the convictions under the Crimes Act would not justify a sentence for “adherence to the conspiracy between 24 May 2001 and 23 October 2006.” (at [50]). The conspiracy that continued over this period could only be punishable under s 135.4(5).

Conclusions

The case is authority for the correct interpretation of s 135.4(5): it will apply to being a party to a conspiracy. This is broader than merely entering into a conspiracy, but nonetheless is inclusive of such entry. It is also instructive insofar as it signals that the common law continues to have application to construing the Code, at the very least with regard to conspiracy offences by reason of it leaving the terms ‘conspiracy’ and ‘conspire’ undefined. Also, the function of s 135.4(9) was clarified. As the court said, it sets out what the Crown must prove in order for a person or persons to be found guilty of an offence under s 135.4 (at [36]). Gageler J further explained that the purpose of s 135.4(9) was “directed to teasing out the essential distinction made in that common law definition. They were explained as having been drafted so as to "clearly separate the agreement component of the conspiracy from the intent to commit an offence pursuant to that agreement" (Australia, Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 2: General Principles of Criminal Responsibility, Final Report, (1992) at 99).” (at [59]). In other words, s 135.4(9) was not directed towards modifying the understanding at common law, but clarifying it (at [60]).

The offence of conspiracy under s 135.4 may therefore be defined as follows. The physical element of the offence is being a party to an agreement to perform an unlawful act. The mental element is proven via the person shown to have voluntarily intended to be part of that agreement. As stated under s 4.2(5) of the Code, “If the conduct constituting an offence consists only of a state of affairs, the state of affairs is only voluntary if it is one over which the person is capable of exercising control.” Naturally, agreement may be demonstrated by acts done in pursuance of the conspiracy, and proving that those acts were intended to be performed in pursuit of the conspiracy, demonstrates intention. Thus, it is possible to show that acts performed that assisted a conspiracy were nonetheless not done in pursuit of it.