Ansari v The Queen

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ.,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ.
• Judgment Date: 26 May 2010
• Neutral Citation: [2010] HCA 18,2010-0526 HCA C
• Docket Number: Matter No S287/2009
• Date: 26 May 2010

[2010] HCA 18

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

Matter No S287/2009

Matter No S288/2009

Hajamaideen Mohamed Ansari

Appellant

and

The Queen

Respondent

Abdul Azees Mohamed Ansari

Appellant

and

The Queen

Respondent

Representation

S J Odgers SC with W P Lowe for the appellant in each matter (instructed by Ford Criminal Lawyers)

P W Neil SC for the respondent in each matter (instructed by Commonwealth Director of Public Prosecutions)

Criminal Code (Cth), ss 5.4, 11.5, 400.3(2).

Ansari v The Queen

Ansari v The Queen

Criminal law — Conspiracy — Fault element — Recklessness — Where appellants charged with conspiracy to deal with money where risk existed money would be used as instrument of crime — Whether charges bad in law because of inherent inconsistency in proving conspiracy where fault element of offence the object of conspiracy is recklessness — R v LK [2010] HCA 17.

Words and phrases — ‘conspiracy to commit an offence’, ‘instrument of crime’.

ORDER

In each matter, the appeal is dismissed.

French CJ.

Introduction

1 On 15 March 2006 the appellants and their brother, Abdul Jaleel Mohamed Ansari, were arraigned upon a joint indictment in the District Court of New South Wales on two counts of conspiracy under s 11.5 of the Criminal Code (Cth) (‘the Code’) to commit an offence against Commonwealth law known broadly as money laundering. The three men pleaded not guilty. The appellants were found guilty on each count. The jury were unable to reach a verdict in relation to their brother.

2 The appellants appealed against their convictions to the Court of Criminal Appeal of New South Wales. They did so on the ground that the offences of which they had been convicted were not known to the law. They contended that the charges against them were bad because they alleged a mental state involving an intention which contemplated future reckless behaviour. On 14 August 2007, the Court of Criminal Appeal dismissed their appeals 1. They applied for special leave to appeal to this Court on 12 September 2007. Their applications lapsed, but were later reinstated. On 2 October 2009 special leave was granted. The appeals were heard immediately after R v LK2. These reasons should be read with those in LK so far as they relate to the elements of conspiracy under the Code.

3 For the reasons that follow the appeals must be dismissed.

The indictment

4 The first count of the joint indictment alleged against the appellants and their brother that:

‘Between about 1 September 2003 and about 14 October 2003 at Sydney in the State of New South Wales and elsewhere [they] did conspire with each other and with [Z] and divers other persons to deal with money to the value of $1,000,000 or more where there was a risk that the money would become an instrument of crime and where the said Abdul Jaleel Mohamed Ansari, Abdul Azees Mohamed Ansari and Hajamaideen Ansari were reckless as to the fact that there was a risk that the money would become

an an [sic] instrument of crime contrary to section 11.5(1) and subsection 400.3(2) of [the Code].’ 3

The second count was in identical terms save that it covered a later period.

5 As is clear from the indictment, the Crown alleged that a risk existed that the money would become an instrument of crime. It provided particulars of the offences in the commission or facilitation of which the money was allegedly to be used. In respect of each count they were:

• (a) an offence under s 31(1) of the Financial Transactions Reports Act 1988 (Cth) (‘the FTR Act’); or

• (b) an indictable offence under Commonwealth law which potentially could be committed by deliberately evading the reporting of taxable income from a cash source.

Statutory framework

6 The relevant provisions of the Code, including those provisions dealing with the general principles of criminal responsibility and the elements of offences and s 11.5, which creates the offence of conspiracy, are set out in LK4. The other offence-creating provisions of the Code and the FTR Act which are central to these appeals are referred to below.

7 Section 400.3(2) of the Code, which appears in Div 400 under the general heading ‘Money laundering’, relevantly provides as follows:

‘ 400.3 Dealing in proceeds of crime etc — money or property worth $1,000,000 or more

…

(2) A person is guilty of an offence if:

• (a) the person deals with money or other property; and

• (b) either:

  • (i) the money or property is proceeds of crime; or

  • (ii) there is a risk that the money or property will become an instrument of crime; and

• (c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

• (d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.

Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

…

(4) Absolute liability applies to paragraph[] … (2)(d)’.

The term ‘instrument of crime’ is defined in s 400.1(1):

‘ instrument of crime: money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).’

Critical to the disposition of the present appeals is s 5.4(4) of the Code, which provides that, where recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

8 Section 31(1) of the FTR Act makes it an offence for a person to be a party to two or more ‘non-reportable cash transactions’ where it would be reasonable to conclude that the person conducted the transactions in a particular manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner or form that would not give rise to a ‘significant cash transaction’, within the meaning of the FTR Act. That purpose is assessed by reference to enumerated factors 5. This kind of offence is commonly referred to as a ‘structuring offence’.

The factual background

9 It is common ground that the Court of Criminal Appeal dealt with the case on the factual basis that follows.

10 The appellants were directors of a company called Exchange Point Pty Ltd, through which they conducted a money exchange business in Sydney. In mid-2003, Z was recruited by a relative and other associates from Romania to travel to Australia and collect more than $2,000,000 in cash from the back of a floor safe located in an apartment at Bondi. He did so, and over a ten-day period delivered instalments of the money to the appellants at the Exchange Point premises.

11 The appellants were said to have arranged for an associate to come to Exchange Point and take various portions of the money which they had received from Z and deposit them into a number of different bank accounts. The associate deposited a total of $1,952,107 on behalf of the appellants between 16 October 2003 and 13 May 2004. The sums were deposited in amounts of less than $10,000. The second count arose out of another visit to Sydney by Z in June 2004.

12 The Crown case in relation to the first count was that when the appellants received cash exceeding $2,000,000 in October 2003:

• (a) there were risks that at least some of the money which they had received might be used in structuring offences and that at least some of it would be dealt with in a way that facilitated deliberate tax evasion;

• (b) the risk that the money would become an instrument of crime was one in respect of which the appellants were reckless ‘in the sense of being aware of and going ahead’.

13 In respect of the second count the Crown case was that the appellants agreed with Z in June 2004 to receive between $2,000,000 and $3,000,000 in cash and:

• (a) they intended that they would receive from Z well over $1,000,000 in cash;

• (b) a risk existed that the money would become an instrument of a structuring offence or an indictable offence under Commonwealth law which potentially could be committed by deliberately evading the reporting of taxable income from a cash source;

• (c) the appellants were aware of the existence of the risks referred to in (b).

14 The Crown case against the appellants did not ultimately rely upon them being reckless about the risk of the money becoming an instrument of crime. Their receipt and their contemplated receipt of the money, intending to ‘launder’ it by deposits of less than $10,000, was said to have created the relevant risk. The charge was framed in terms of recklessness because the Crown was concerned that it would not be able to prove that Jaleel Ansari (about whom the jury ultimately were unable to reach any verdict) had any knowledge or intention that the money would be the subject of structured cash transactions.

15 It was contended for the appellants that the Court of Criminal Appeal misunderstood the way in which the Crown case was put to the jury. At the hearing of the appeals to this Court, the appellants applied for special leave to appeal to raise that additional contention, which was refused. The disposition of these appeals turns not upon how the Crown put its case to the jury, but upon whether the charges against the appellants were bad in law. Special leave was also refused to add an additional ground of appeal. That ground was that the appellants could not be convicted of the offence charged because neither money the subject of a structuring offence nor money the subject of an offence of failing to report taxable income, could be regarded as an instrument of the commission of those offences. Leave...