The Queen v LK

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ.,Gummow,Hayne,Crennan,Kiefel,Bell JJ.,Heydon J.
• Judgment Date: 26 May 2010
• Neutral Citation: 2010-0526 HCA B,[2010] HCA 17
• Docket Number: Matter No S162/2009
• Date: 26 May 2010

The Queen

Appellant

and

LK

Respondent

The Queen

Appellant

and

RK

Respondent

[2010] HCA 17

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

Matter No S162/2009

Matter No S163/2009

HIGH COURT OF AUSTRALIA

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) Act 2001 (NSW) (‘State Act’) provided right of appeal by Crown against directed verdict of acquittal — Whether, as matter of construction, s 68(2) of Judiciary Act 1903 (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’.

Constitution, s 80.

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

Judiciary Act 1903 (Cth), s 68(2).

Crimes (Appeal and Review) Act 2001 (NSW), s 107.

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))

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.

French CJ.

Introduction

1 The offence of conspiracy created by the Criminal Code (Cth) (‘the Code’) is committed where there is an agreement between the offender and one or more other persons, coupled with an intention, on the part of the offender and at least one of the other persons, that an offence will be committed pursuant to the agreement 1. Proof of commission of an overt act by the offender or another party to the agreement pursuant to the agreement is necessary 2. The primary question in these Crown appeals is whether the offence of conspiracy is committed when there is an agreement to commit the offence of dealing with money the proceeds of crime where recklessness as to the fact that the money is proceeds of crime is an element of the substantive offence. The formulation of the question throws up the fault line in the Crown's argument, namely, the proposition that an agreement to deal with money the proceeds of crime does not require that the parties knew that the money in question was proceeds of crime 3. It is said to be sufficient that the respondents contemplated recklessness as to that matter. That is insufficient and, for that insufficiency, the appeals should be dismissed.

2 Other questions were raised by the respondents about the availability of an appeal against a directed verdict of acquittal and whether a State law providing for such an appeal is inapplicable in the exercise of federal criminal jurisdiction because of the guarantee of trial by jury contained in s 80 of the Constitution. Such an appeal is available in respect of an offence tried on indictment and does not infringe the guarantee.

Factual and procedural history

3 On 19 May 2008 the respondents were jointly charged that:

‘between about 1 December 2003 and about 1 February 2004 at Sydney in the State of New South Wales and elsewhere [they] did conspire with each other, [RM] and with divers other persons to deal with money to the value of $1,000,000 or more being the proceeds of crime where those persons who were to deal with the money pursuant to the conspiracy were reckless as to the fact that the money was the proceeds of crime.’

4 The respondents had been arrested on 16 August 2005. On 18 October 2006 they were served with court attendance notices and on 17 July 2007 were committed to stand trial in the District Court of New South Wales in Sydney. A first indictment was filed with the District Court of New South Wales on 13 September 2007 but was substituted by the indictment quoted above, which was filed on 26 May 2008.

5 The respondents were tried together before Sweeney DCJ and a jury in the District Court of New South Wales. The trial commenced on 30 June 2008 and evidence was completed on 4 July 2008. On 8 July 2008, following no case submissions on behalf of the respondents, the trial judge directed the jury that as a matter of law they should acquit the respondents of the charge on the indictment. The direction was based not upon any insufficiency in the evidence adduced for the Crown but upon her Honour's conclusion that the indictment against the respondents did not disclose an offence known to the law. Her Honour said to the jury:

‘Now you do not need to go to the jury room and consider that decision, I will simply ask the foreman to stand. My associate will ask him questions in [respect] of each accused and the count on the indictment and Mr Foreman you will return a verdict of not guilty in respect of each accused. Do you understand that?’

The foreman replied in the affirmative. The transcript shows that at her Honour's direction the jury returned a verdict of not guilty in favour of each of the respondents. The respondents were then discharged.

6 In her reasons for directing the acquittals, her Honour observed that the indictment alleged that the respondents ‘intentionally agreed to commit an offence, the mental element of which was recklessness’. The case advanced by the Crown committed it to proving that the respondents were reckless as to the money the subject of the conspiracy being proceeds of crime at the time they entered their agreement. The charge offended a ‘longstanding principle of criminal liability that an accused must know of all the facts that would make his conduct criminal’. Her Honour referred to the decision of the Court of Criminal Appeal in R v Ansari4. She said that the Court held in that case that a person could be charged with conspiring to commit an offence the mental element of which was recklessness when the Crown relied upon intention or knowledge to prove the element of recklessness or where a third party was to commit the offence the object of the conspiracy. In her Honour's opinion, Ansari was not authority for the proposition that a person could be charged with conspiring to commit an offence the mental element of which was recklessness, simpliciter.

7 An appeal by the Crown against the acquittals was brought in the Court of Criminal Appeal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). The section provides for an appeal by the State Attorney-General or the Director of Public Prosecutions for the State against, inter alia, the acquittal of a person ‘by a jury at the direction of the trial Judge’ 5. The judgment of the Court dismissing the appeal was delivered by Spigelman CJ, with whom Grove and Fullerton JJ agreed 6. The Court held that the reasoning in Ansari was not applicable to the charge against the respondents 7. On the authority of Ansari it would have been open to the Crown to prove recklessness, in its extended statutory meaning under the Code, either by proving that the respondents were aware that there was a substantial risk that the money was proceeds of crime or by proving that they intended or knew that the money was proceeds of crime 8. Spigelman CJ said 9:

‘It is not the Crown case that either of the [respondents] knew that the money was proceeds of crime. As the Crown emphasised in its submissions in this Court the Crown case was that the [respondents] were reckless as to the fact whether the money was proceeds of crime. That allegation may have supported a substantive offence under s 400.3(2). It cannot support a charge of conspiracy where, in order to satisfy the test of intention with respect to the entry into an agreement to commit an offence, the accused must know the facts that constitute the offence.’ (emphasis in original)

The Chief Justice said that the trial judge had correctly distinguished Ansari and had correctly concluded that the Crown case disclosed no offence known to the law 10. The Crown lodged applications to this Court for special leave to appeal on 19 January 2009. Special leave was granted on 19 June 2009.

Grounds of appeal

8 The single ground of appeal in each case is that:

‘The Court of Criminal Appeal erred in interpreting s 11.5 of [the Code], such that to be guilty of conspiracy to commit an offence that has a physical element for which a fault element of recklessness is prescribed, it must be proved that the offender...