The Queen v LK; The Queen v RK [2009] HCATrans 146 (19 June 2009)

Last Updated: 24 June 2009

[2009] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S17 of 2009

B e t w e e n -

THE QUEEN

Applicant

and

LK

Respondent

Office of the Registry
Sydney No S18 of 2009

B e t w e e n -

THE QUEEN

Applicant

and

RK

Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 2.20 PM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MR H.J. DHANJI in both applications. (instructed by Commonwealth Director of Public Prosecutions)

MR J.S. STRATTON, SC: May it please the Court, I appear for the respondent, LK, with my learned friend, MR P.G. HOGAN. (instructed by Hanby & Associates lawyers)

MR G.O’L. REYNOLDS, SC: May it please the Court, in matter No S18 of 2009, I appear for the respondent, RK, with my learned friend, MR B.C. KASEP. (instructed by Mee Ling Solicitors)

GUMMOW J: Is there any agreement among the respondents as between you as to who will go first?

MR REYNOLDS: No, your Honour.

GUMMOW J: We will be pleased to hear from the respondents first, Mr Game. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours will have seen from the judgment of the Court of Criminal Appeal, in particular in the application book at page 31 at line 20, that the Crown case on this prosecution was always based on recklessness alone, that is, that the respondents were reckless as to the fact that the relevant funds were the proceeds of crime. We submit that that was not sufficient to establish the offence with which my client was charged, and that it was essential for the Crown to establish that my client knew or believed that the money was proceeds of crime. The book of authorities, as the legislation - and I would like to spend if your Honours will indulge me for 3 minutes or so - - -

GUMMOW J: More than that if we have to.

MR REYNOLDS: Perhaps, your Honour. I just want to take your Honours very, very briefly through the relevant portions of the legislation.

GUMMOW J: Yes, that would be helpful, I think.

MR REYNOLDS: If I could ask your Honours, with respect, perhaps to have a pen in hand so that we can isolate precise elements of the offence with which my client was charged. If your Honours go to page 25 of the authorities book behind tab 2, section 400.3 of the Criminal Code is to be found and, relevantly, subsection (2) of that provision sets out the elements and I would like to go through them quite mechanically.

The first element in this case - this is at the bottom of the page 25 - is that the person deals with money. The second element is in (b)(i). If your Honours could underline “the money”, then leave out “property”, the money is proceeds of crime and perhaps asterisk that element because that is the element I am going to be coming back to in due course. Thirdly, that “the person is reckless as to the fact that the money”, not the property, “is proceeds of crime” and over the page that:

at the time of the dealing, the value of the money . . . is $1,000,000 or more.

So that is the substantive offence of dealing with money which is proceeds of crime being recklessly indifferent as to whether it was proceeds of crime. Of course, that is not what my client was charged with. What my client was charged with was conspiracy in relation to that particular offence.

Now, the conspiracy provision is section 11.5 and that is to be found at page 22 of the application book, and again I want to go through the elements of the conspiracy provision quite mechanically. If your Honours go to section 11.5(2), there are three elements set out there respectively in paragraphs (a), (b) and (c). The first is an agreement, the second – this is in paragraph (b), this is the critical provision here - is that the parties -

to the agreement must have intended that an offence would be committed –

So if your Honours perhaps circle that word “intended” because it is the most important word in this particular case. Then thirdly, just summarising things briefly, there has to be an “overt act”.

BELL J: Mr Reynolds, can I just take up one matter with you? As I understand it, all parties accept Ansari. The difference is contentions as to the correctness or otherwise of the approach of the primary judge and the Court of Criminal Appeal as to the correct interpretation of what it is Ansari held. Is that right?

MR REYNOLDS: Yes and no. In the Court of Criminal Appeal – and this is one of the problems for the applicant – there was no attempt to overturn Ansari. The Crown said, “Ansari is a case in our favour and we rely on it”, so we then parsed and analysed that case in the Court of Criminal Appeal. It was accepted by both parties as correct and the Court of Criminal Appeal simply applied Ansari, but I think, if I can finish, your Honour, I think in this Court, my friend has said that both Ansari and the decision of the Court of Criminal Appeal here are both wrong.

BELL J: Just for present purposes, you and the applicant, and I think Mr Stratton, all seem to approach the matter upon the basis that one understands section 11.5(2) to be a statement of the elements of the offence, whereas as I read Ansari - the point that Justice Howie made, and which I think Justice Simpson was at one with, was that the elements of the offence are contained in subsection (1). The offence is conspiring with another person to commit an offence punishable by imprisonment for 12 months, or by a fine. There is no statement in subsection (1) of the fault element, ergo, since the physical element is one of conduct the fault element is one of intention. That, I think, is the reasoning in Ansari which leaves open the issue that Justice Howie raised but did not find necessary to determine, which is quite what the three factors set out in 11.5(2) are.

I raise the matter because it was critical to the approach in Ansari. I do not understand the Chief Justice in the Court of Criminal Appeal to have taken a different view, and all the submissions on both sides of the record proceed on a different basis as I see them.

GUMMOW J: If one looks at 11.5, you start off as Justice Bell has been putting to you with subsection (1), and then (2) says “must” in various respects, then (3) says “may”, (4) says, cannot unless. It is an odd drafting scheme which I am not sure has been fully digested.

MR REYNOLDS: That may be right, your Honour, but one thing is clear, and that is there are three “musts” used in section 11.5(2), and whether one calls them elements or sine quibus non or essential matters, these are matters which the Crown must prove.

BELL J: The significance of it is this, that of course if they are elements then they are subject to analysis on the basis of are they elements of conduct or result of conduct or so forth and what is the fault element, whereas if Justice Howie’s analysis is correct, one has a single fault element which is intention, being the intention accompanying the physical element of conduct which is the conspiring with another person.

MR REYNOLDS: Yes, paragraph (a) is a physical element within the meaning of the Code. Paragraph (c) is another physical element, namely an “overt act”. Paragraph (b) is what we call a fault element, and what I need to analyse is what does “intended” mean there and - - -

BELL J: We are not at one at the moment, Mr Reynolds. The matter that I am raising with you is that on the analysis in Ansari, which was not challenged, and which seems to have been the basis upon which the Court of Criminal Appeal proceeded in this case, the fault element is the default fault element for the physical element of conduct, which is the sole physical element of the offence, and it is all contained in subsection (1). That is the analysis if you go back to Ansari.

MR REYNOLDS: Your Honour, can I answer that two ways? First of all, as I said before, my learned friend as I understand it is challenging Ansari, so in one sense we are wiping the slate clear and he is saying let us not worry about Ansari, let us not worry about this case, this is a case about the Code, let us look at the Code. So that is what I want to do, and I am two-thirds of the way there because I want to suggest that, with respect, there is a fairly simple answer in this case.

GUMMOW J: Not yet given.

MR REYNOLDS: Exactly. I am almost there, your Honour, but it is a ratio interrupter. What we need to do obviously is we need to transpose this notion of intention onto the requirements of section 400.3(2), and we say that when one does that one has to find intention vis-à-vis every element of the offence and, relevantly, the second element of the offence is that the money is proceeds of crime, so unless there is proof of knowledge or belief on the part of my client that the relevant money was proceeds of crime - and that the Crown concede they cannot prove – then they Crown case has not proved an essential element.

Now, the final step in the analysis – and this is something which was put to the Court of Criminal Appeal - that does not seem to have made its way into the judgment, except obliquely is that this word “intended” in section 11.5(2)(b) is actually defined. If your Honours go to page 5 of the book of authorities, we have here in section 5.2 the definition of “intention”. First of all with respect to conduct, that the accused “means to engage in that conduct”; secondly, and again if your Honours can asterisk subsection (2), that:

A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

The Court of Criminal Appeal at page 29, line 53 noted that –

The relevant physical element in this case is a “circumstance” ie “the money is proceeds of crime”.

That is the second element in section 400.3(2). If that is a circumstance - and my learned friend agrees with that, that is in his submissions in the application book at page 58, line 19 – that means that subsection (2) is in play and that means that the Crown had to prove, had to prove, that my client believed that the money was proceeds of crime. That is an essential part of the Crown case on this notion of “intention” as defined.

Now, our submission is that this case not only is not attended by sufficient doubt to warrant a grant of leave, but I respectfully submit, is not attended - and I put it this high – by any real doubt at all. For that reason, I submit that special leave to appeal should not be granted in this case.

BELL J: Mr Reynolds, can I come back to this? Can I take you to Ansari? At page 52 of your bundle of authorities, at paragraph 57 Justice Howie there points out that on the hearing in that case:

A question arose . . . as to the characterisation of the provisions of s 11.5(2).

He noted it was unnecessary to resolve the issue in that case. He noted that Justice Jacobson in a decision that had been subsequently upheld in the Full Court of the Federal Court approached the matter on the basis that the provisions of subsection (2) were elements of the offence. Then if you go over to the following page of the book of authorities, page 54 at paragraph 63, his Honour expresses the opinion that:

there is only one physical element in the offence as stated in section 11.5(1).

My reading of Justice Simpson’s judgment is consistent with that analysis, and that seems to be the approach that the Chief Justice took in the subject appeal. When one comes to look at whether there is an issue that might attract a grant of special leave, it would seem that there are differing views about what the matters stated in subsection (2) of the provision are. If they are elements of the offence they need to be analysed consistently with the provisions of Chapter 2. If they are not elements of the offence then you get to the same path that you seek to persuade us of, but you get there because of the analysis that Justice Howie set out in paragraph 63 in Ansari, as I would see it.

MR REYNOLDS: Your Honour, perhaps I am tripping over the word “element”. If we go back to subsection (2) it says that –

For the person to be guilty -

three things must exist. Let me put my submission in terms of the three things that must exist, and simply say that one of them is missing and therefore an essential requirement for my client to be guilty is missing.

With all due respect to the views of the Court of Criminal Appeal in Ansari, which as your Honour has underlined, are provisional, I respectfully submit that there could be no real argument, frankly, that these are, as we call them “elements of the offence”. The word “must” is used three times indicating that, but more importantly, can I draw your Honours’ attention, at paragraph 87 on page 59 of the application book, to the end of paragraph 87, the final sentence where his Honour, and relevantly the other two judges agreed with him:

Provided that the conspirators know of all the facts that would make the conduct of the third party criminal, it would not matter that the person carrying out the conduct was committing an offence by acting recklessly.

To similar effect were the various statements in the Court of Criminal Appeal, and we submit that however one analyses it, the Crown are going to have to show that the accused, my client, either knew or believed that the relevant moneys were proceeds of crime. We submit that when you look at these provisions, which after all are in a statue creating criminal offences, we submit there is not even any doubt about this being an essential element for - - -

GUMMOW J: What is the difference in 11.5 between the expression “to be guilty” in 11.5(2) which you have been dealing with us, and “found guilty” in (3), (4) and (5); “may be found guilty”? How does one characterise that in terms of elements?

MR REYNOLDS: That is a clarification. Perhaps if we take the first one. The first one is conspiracy to commit something which is impossible, so this is a separate - - -

GUMMOW J: Why does it not just say “cannot be guilty”? Why does it say “cannot be found guilty”? I just think there are some undercurrents in the drafting of these provisions which have not been fully plumbed. Maybe there are they are - - -

MR REYNOLDS: That may well be right, your Honour, but subsection (2), we suggest is not open - with all due respect to my friend’s argument, it is not open to suggest that the – and this is how it has proceeded all the way through – that this element of paragraph (b) that the Crown must prove that my client “intended that an offence would be committed”.

Now, my learned friends would be resiling from that. That is the way the trial was conducted, that is the way the written and oral submissions were conducted in the Court of Criminal Appeal, and that is the way the submissions have been presented to your Honours. That is because, we submit, there cannot be any doubt about that particular issue and we have two judges of the Court of Criminal Appeal that treat that as a, let me call it a sine qua non of a conviction and - - -

BELL J: It makes a difference if you are a trial judge directing a jury. You need to know what are the elements of the offence, and you need to know if the Commonwealth by its Criminal Code has created a creature that involves elements of the offence for which one has to have physical elements and fault elements, and something else being preconditions of guild, then the trial judge needs to know it. The division of view – if there be one – between the Federal Court and the Court of Criminal Appeal on that point may be a matter of significance.

MR REYNOLDS: Again I submit if there is a distinction it is one without a relevant difference so far as my client is concerned. It may be, and let me make it quite clear, I am not disparaging what your Honour is putting to me at all, what I am saying is that whether we go into these characterisation issues or not, we still have to return to these matters and we have had six experienced judges in the Court of Criminal Appeal treat this as a sine qua non, we have had the Crown not only a trial but also an appeal to the Court of Criminal Appeal and also submissions to this Court upon that basis, and the reason I submit that that has occurred is because there can be no real doubt about it. I think, your Honours I am starting to repeat myself.

GUMMOW J: You are on the red light too.

MR REYNOLDS: I am here to take more medicine from your Honour Justice Bell if need be, but I think have said all I need to say.

GUMMOW J: Yes, Mr Stratton?

MR STRATTON: Your Honours, it is submitted that an element of an offence is something which must be proved in order for the prosecution to obtain a conviction. In my submission - - -

GUMMOW J: This Code is not drafted with that word in mind, is it?

MR STRATTON: No, and indeed, I think I am correct in saying that the expression “elements” is used, but only in the sense fault and physical elements. My submission is that if section 11.5(1) stood alone, then all the elements of conspiracy would be gleaned from subsection (1). However, and it might be said that there has been some infelicitous drafting of section 11.5, but my submission is that because subsection (2) says certain matters must be proved in order for the prosecution to obtain a conviction, it logically follows that the matters in subsection (2) are elements of the offence, and my submission is that they are in addition to elements which are already set out in subsection (1). My submission is that the critical provision, of course, is subsection (2)(b) for the purposes of this offence, and that subsection, in my submission, is very clear and unambiguous. That is that the alleged parties to the conspiracy:

must have intended that an offence would be committed pursuant to the agreement -

In my submission it follows from that. If there is intention to commit an offence, which itself consists of a number of elements, then the fault element in relation to the substantive offence must in each case be intention. The word “intention”, of course, is used in a way which is slightly unfamiliar to common lawyers in that it applies not only to a desire for a certain outcome, but it also includes a certain state of knowledge and that is set out in section 5.2, and it follows from section 5.2 as Mr Reynolds has said, that what is required is proof of knowledge.

Can I just take your Honours to one additional matter which is, in my submission, of assistance in, with respect, understanding section 11.5. Your Honours will see that section 11.5(2A) says that:

Subsection (2) has effect subject to subsection (7A).

GUMMOW J: Yes, I was wondering about that.

MR STRATTON: In my submission, subsection (7A) is critical to an understanding of section 11.5 and presents an insurmountable problem for the applicant’s interpretation of this section because subsection (7A) says that:

Any special liability provisions that apply to an offence –

that is the substantive offence –

apply also to the offence of conspiracy to commit that offence.

Special liability provisions include, relevantly, both strict liability and absolute liability. In my submission, because of subsection (7A) the effect of that is that for special or absolute liability the prosecution is not required to establish intention; it can rely on special or absolute liability. It follows, in my submission, logically, if the legislature intended, for example, that a lesser state of intention such as recklessness be imported into the offence of conspiring to commit a particular offence, then recklessness would have been included in subsection (7A), and the fact that it is not there indicates, in my submission, that where the substantive offence has an element of recklessness required for conspiring to commit that offence the required fault element is intention.

GUMMOW J: Was subsection (7A) in play in the Court of Criminal Appeal in the reasons?

MR STRATTON: I do not think so, your Honour. My memory is that it was referred to in the Court of Criminal Appeal, but it does not appear in the reasons. Your Honours, in brief, I have taken your Honours to the common law position, and in my submission, that is entirely consistent with an interpretation that we say is the correct interpretation of section 11.5. I have also taken your Honours to extrinsic material, both of the drafters of the Criminal Code and academic commentators, which is also consistent with the interpretation of section 11.5 which the respondents say is essentially the unambiguous and correct interpretation of section 11.5. Your Honours, unless there is a particular matter your Honours wish me to address - - -

BELL J: Just this, Mr Stratton. As I would understand it, a trial judge in New South Wales would presently direct a jury in accordance with the analysis of the offence of conspiracy contained in Ansari. Your submissions are that Ansari is wrong.

MR STRATTON: Your Honour, it may be a matter of classification, but in my submission, whether the matters in subsection (2) were regarded as elements or not may only be an academic matter, but in either case it is submitted that a jury would have to be directed that the prosecution must prove beyond reasonable doubt that the alleged conspirators intended that the offence be committed. In my submission, that would be case whether or not, strictly speaking, the subsection (2)(b) is regarded as an element of the

offence or not, but my submission is given that it is something that the prosecution must prove, it must be an element of the offence.

BELL J: Attracting therefore the provisions of Part 2, and the analysis that that requires in relation to each of the paragraphs.

MR STRATTON: Yes. Thank you, your Honours.

GUMMOW J: Yes, Mr Game?

MR GAME: Just dealing with the subsection (7A) problem first, we explain that at page 77 of our submission of the application book. It is a curious provision; it was brought in respect of other provisions at the same time, one of which, 11.1 is “Attempt” where it says the very words that our opponents say. Subsection (3):

For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element –

The special liability provision works in a very limited way because the offence is the making of the agreement, so you will only ever get to this provision, and only in respect of absolute liability and there are some provisions that say it is not necessary to prove a thing. That is not strict liability; that is something different. How that would work is this, and it was obviously put in because of a concern about whether people talk about how much it is they are talking about in drugs. What it means is if the people agree to bring something into the country and there are 10 tonnes sitting on the dock, then you go to that section. It is intellectually very unsatisfying, but that is all it means.

BELL J: I think that is the way it was dealt with in Ansari at 84.

MR GAME: Yes, your Honour. One can forget about, in my submission, subsection (7A) in this context. There are problems with both of the decisions, ultimately, that do require further consideration, and in our submission, this section requires a very close look. We agree that the only physical element – and may I say this, what is being put by our opponents is that although they are offences of intention, recklessness, negligence, strict liability and although within offences there are offences of elements of intention, recklessness, negligence, strict liability, if you have an agreement to commit an offence, then all of those elements, whether they amount to the whole offence, somehow are transported in to the offence of conspiracy.

That is not what section 11.5 achieves at all. The only physical element is in 11.5(1). However one describes it, what subsections (2)(a) and (b) are doing are they are telling you something about mutuality, that is to say something that sits inside the agreement, so you never get to – and just as in common law, a conspiracy was an agreement to commit an offence, whatever you call subsection (2), it does not import a physical element of the crime at all, and what it certainly does not do is say what I said about the attempt section, which is that in intending that an offence be committed, the conspirators have a mental element of intention with respect to every physical element.

To take the culpable driving causing death example, if that is what it meant it would mean that you would actually have to have an intention to murder the person because one of the physical elements is the result which is death.

BELL J: Come back then to your proposition that the elements of the offence are contained wholly within subsection (1), then absent the statement of the fault element, the fault element is an element of intention, so accepting the proposition that one can conspire to commit an offence, the fault element of which is recklessness, what is wrong though with the analysis here that in order to be guilty of the offence with which these respondents were charged, it would be incumbent on the Crown to establish their knowledge of all the matters that would make their agreement criminal.

MR GAME: Your Honour, with respect, just as in Giorgianni which it is taken from and Giorgianni which is modified by the Code, knowing all the facts does not expose the issue. May I give you this example. Knowing all the facts here, one of the facts known is, shall we say, that it is $24 million of very dodgy money. That is knowing the facts that brings on the mutual knowledge and intention but with recklessness as to the quality of that money. That is knowing the facts.

They know the facts about that – let me give you another example. If you take - and there are actual sexual assault offences in this Code. Say you had an agreement to commit sexual intercourse without consent, recklessness is the absence of consent. Two people know all the facts if they agree to a circumstance and have mutual knowledge that the third person with whom they are to have sexual intercourse may not be consenting. That is knowing all the facts.

Knowing all the facts does not actually get you to the bottom of the actual legal issue in this case, and the legal issue is that when one talks about section 2(a) and (b), it does not transmogrify the elements of the substantive offence - - -

GUMMOW J: Just a minute. Is not – as a matter of statutory construction - subsection (2) of 11.5 epexegetical, explanatory of the word “conspires” in subsection (1)?

MR GAME: Absolutely, that is all it is.

GUMMOW J: .....necessarily epexegetical because without it you are adrift.

MR GAME: That is right. All you are saying is when we talk about conspiracy we mean a common intention which, if executed, will bring about a certain circumstance, that whatever that is is the commission of a crime. It does not - - -

BELL J: Conspiracy is the agreement to commit the offence.

MR GAME: Quite.

BELL J: I will come back a step. The Code departs from the common law in that it does not contemplate a conspiracy to do a lawful act by unlawful means.

MR GAME: That is correct, your Honour.

BELL J: The essence of it is the agreement to commit the offence, so that your intention is an intention to commit an offence. You may not know that it is illegal, but you do need to know everything that makes it an offence.

MR GAME: Yes, but, your Honour, that does not feed into and change the elements of the offence. May I put it another way. It would be a very funny thing if it said in subsection (b) at least one other person must have been reckless that an offence would be committed. That is what it does not mean, but that shows you that you are not actually changing – for example, in the culpable driving example, knowing all the facts is knowing that it is a truck that has no brakes, not that it will be driven on the road and that there will be an accident and so forth. So as I say, the case raises a quite critical question and may I say this. It is a quite important case for a number of reasons but joint criminal enterprise, knowingly take part - - -

GUMMOW J: You make talk yourself into special leave, but you may talk yourself - - -

MR GAME: I will give up.

GUMMOW J: No, no, wait a minute. You may talk yourself into special leave, but you may not win the appeal.

MR GAME: I understand, it is certainly a difficult question, but there is no doubt, in our submission, that the law is in an unsatisfactory state at the moment. There is one thing perhaps I had not emphasised enough. When I said this intention is inside the agreement, if you see it the words have not been given sufficient importance –

would be committed pursuant to the agreement –

and “would be committed” might be contrasted with “to commit” because it is contemplating the - - -

GUMMOW J: Just a minute. Just explain that more slowly, Mr Game.

MR GAME: Right. When it says “an offence would be committed pursuant to the agreement” it is provisional. It is contemplating that something might happen in the future. It is a purely provisional state of affairs.

BELL J: But the intention, Mr Game, is the intention in subsection (1) when you enter the agreement, surely.

MR GAME: Yes, your Honour, I am not worried about that. All I am saying is that for our opponent’s argument to work you have to pull this intention out of the agreement and you have to apply it to the physical elements in the substantive offence and then change them. If that is what it does, what that means is, in this legislation where you have cascading offences, you could only ever charge the very worst of them because you would have to prove intention with respect to every element of offences of negligence, for example, or so forth. As I was saying before it is an important case because joint criminal enterprise, knowingly concerned have gone. So has common purpose, so this is all there is in terms of agreement-based crime in the Code.

BELL J: That says something about the drafting of the Code, but I had some difficulty seeing how that - - -

MR GAME: The reason it is important is because this is the critical provision in respect of agreement-based crime in the Code, that is the reason.

BELL J: That much I understand, but in circumstances where the Code reflects in section 11.5(8) the requirement for consent of the DPP, that seems to hark back to pre-Code discussion about the inadvisability of preferring charges of conspiracy where a substantive offence was available, which does not seem to sit well with your contention that since we have

chosen to do away with joint venture as a basis for criminal liability we will just expand the scope of conspiracy.

MR GAME: I am not saying that all, your Honour, and your Honour nor do we agree at all with the analysis of the common law cases. We do not agree that the common law cases bear out that which is said about them, that somehow or another the interpretation of attaching the element of intention to each physical element is - a proper analysis of those cases does not show that. For example, the whole of conspiracy to defraud involving risk to the revenue cases – of which there are many – they are cases in which there is clearly not intention in respect of the physical element in the kind that is being talked about here. That is pretty much all I wanted to say at this point. If the Court pleases.

GUMMOW J: Thank you, Mr Game. Yes, Mr Reynolds.

MR REYNOLDS: Your Honours, I was waiting around with bated breath to hear my learned friend’s construction of section 11.5(2)(b). I do not think, with all due respect, we got one. Your Honours are going to have to determine, if leave is granted here, what that provision means, and I submit your Honour Justice Bell put to my learned friend the obvious way in which it has to be interpreted, namely that the Crown is going to have to prove that the accused knew or believed everything that makes the relevant offence. Now, that is the fair construction, we submit, and we ask rhetorically, what is the countervailing construction? What is it?

Now, my learned friend needs to hunker down on these words and say to your Honours in dealing here with a criminal offence how it is that those words are going to be interpreted, if you like, what the headnote is going to be for this case if leave to appeal is granted, that the words “intended that an offence would be committed” in paragraph (b) mean what? He has not done that and I submit that that underlines the tremendous difficulty in the Crown case for leave. Can I put to one side the issue of leave, and since your Honours are manifesting at some level some interest in the matter, can I raise - - -

GUMMOW J: I am just trying to be attentive to the argument, Mr Reynolds.

MR REYNOLDS: I think I asked for that, your Honour. Can I raise the issue of conditions if leave is granted? It might have escaped your Honours’ notice that my client was acquitted at the trial, that he did not have any costs order made in his favour for the trial. He was then subjected to an appeal on a point of law to the Court of Criminal Appeal. He succeeded there, and again no costs were made in his favour. He is not legally aided, and whatever your Honours may think about the facts of this

matter, I am sure the Crown will not say that he is a man with $20-odd million in his bank account. That money, as I understand it, has been returned. What we would ask is that if special leave is to be granted, and my learned friends –and I should mention this – talk about this being from the Commonwealth point of view, a point of general importance in the administration of the criminal law, and in particular the interpretation of the Code - - -

GUMMOW J: Has there been any prior practice in this Court of attaching conditions to grants to the prosecution in criminal cases?

MR REYNOLDS: I cannot answer that, your Honour. What I can say is that there are cases where – and we have them here if necessary - - -

GUMMOW J: The Judiciary Act would empower it, I would have thought.

MR REYNOLDS: Indeed, and there are practices of course, in relation to criminal appeals. However, if special leave was refused, we were going to ask for costs as we have asked in our written submissions because the cases say that where leave is refused in respect of a matter of importance to the general administration of the criminal law, then the Crown can be ordered to pay the costs of the special leave application. Now, by similar reasoning, we submit, if my client – who I might add is not legally aided – has already been put to the expense of a trial and a full appeal on a point of law, then I submit that it is appropriate that that condition be imposed.

GUMMOW J: Have you given Mr Game advanced notice of this?

MR REYNOLDS: No, I have not, your Honour. The second matter that I wanted to raise is a matter we raised in our written submissions which is at the application book at pages 87 to 88, paragraph 23, that any grant of leave should be confined to the first ground of appeal. The second ground of appeal – this is on page 52 of the application book – only talks about the appropriateness of directing a verdict of acquittal as opposed to quashing the indictment. That is not a matter which has been raised in the written submissions as an issue warranting the grant of leave. We took this point in our written submissions and there was no reply on it, so we would ask that there be that limitation on any grant of special leave. If your Honours please, those are my submissions in reply.

GUMMOW J: Yes, Mr Stratton.

MR STRATTON: Your Honours, there has been some debate about the meaning of the phrase “special liability provision” - - -

GUMMOW J: Is your client’s position the same as to ground 2?

MR STRATTON: Yes. Your Honours, could I hand up an extract from the dictionary to the Code which sets out the definition of “special liability provision”. Your Honours, in relation to the offence of attempting an offence, true it is that it is set out more clearly in relation to “attempt” that actual intention is required, but it is an example of another species of offence where attempting a substantive offence has a different fault element to the substantive offence itself and there is a consistency of approach, it is submitted, which explains why subsection (7A) is in section 11.5, but the applicant still has not been able to explain why subsection (7A) is in that provision. Those are the matters, thank you, your Honours.

GUMMOW J: What do you say about ground 2, Mr Game?

MR GAME: Your Honours, we do not need ground 2, but if we succeed on ground 1 we need orders that set aside the judgment of the Court of Criminal Appeal and that quash the acquittal of the respondent entered by the District Court judge. I have a draft notice of appeal here which keeps ground 2, but as I say, depending on orders made under section 38 of the Judiciary Act, I have three just for the moment, your Honours, if they could be handed up - - -

GUMMOW J: You had better show your opponents that.

MR GAME: It is all the same except in the orders sought there is just a slight variation. We have added order 3, the acquittal be quashed. The appeal went up under an Act which enabled an appeal against the entering of the acquittal, so the effect of the orders would be that - - -

GUMMOW J: The quashing of the acquittal would be antecedent to the new trial.

MR GAME: Yes, your Honour. That is all. It does not add anything, but all I am saying is we do not need the second ground. In respect of costs, it has not been a practice to make costs conditional in criminal cases. If your Honours were minded to make that order then what I would do is, if your Honours did make that order, I would undertake not to file a notice of appeal until I had instructions to meet the cost of the appeal of the respondents. So that if you want to make the orders, I do not have instructions but I can create a situation in which I could comply with that order.

GUMMOW J: We will take a short adjournment.

AT 3.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.18 PM:

GUMMOW J: In each of these applications there will be a grant of special leave in terms of the draft notice handed up in Court this afternoon, but removing therefrom ground 2. There will be reserved for a consideration in the course of the appeal any special arguments that are to be made about costs and the written arguments should take that on board. How soon can these appeals be got ready?

MR GAME: As soon as the Court is able to hear them. There is not a great deal more material than appears.

MR REYNOLDS: Your Honours, there is something I need to raise. Can I take your Honours to the application book at page 48, paragraph 76, which says there:

It is unnecessary to deal with the respondents’ contentions which challenged the applicability and validity of s 107 of the Crimes (Appeal and Review) Act 2001.

Given that leave has been granted, I anticipate that I will be instructed to put at least two points, and I should tell your Honours what they are now.

GUMMOW J: Yes.

MR REYNOLDS: Point 1, that section 107, given that this is a Commonwealth indictable offence, is inconsistent with section 80 of the Constitution. This precise point was considered as I recall, in R v Snow in the twenties, and there was a three-three split on this point.

GUMMOW J: Yes, that is right.

MR REYNOLDS: Since then, there was a decision of the Tasmanian Court of Criminal Appeal which adopted what I will call a pro-Crown view on that point, and that was followed in a case called The Crown v JS.

GUMMOW J: This would be by notice of contention, would it, and it would entail, obviously, 78B notices?

MR REYNOLDS: Of course. The second point, and it may be there is something else, but the second point that I should alert your Honours to is this. I forget the exact chronology, but this Crimes (Appeal and Review) Act was only enacted after my client received a court attendance notice and we will be submitting that this provision did not apply to him, in other words, there was no right of appeal which the Crown had to the Court of Criminal Appeal - - -

GUMMOW J: That would be a point of construction.

MR REYNOLDS: Yes. That it is a substantive right, that there was no specific retrospectivity provision and it is - - -

GUMMOW J: That makes it a two-day appeal, I would say.

MR REYNOLDS: Possibly more, yes. That is the bottom line.

GUMMOW J: All right. Was there anything else?

MR REYNOLDS: No, your Honour.

GUMMOW J: How soon can it be got ready?

MR REYNOLDS: I did not answer that question, although that was the only question your Honour asked. I would be in some difficulties if the matter were listed probably before late September.

GUMMOW J: State Attorneys might be too, I imagine.

MR REYNOLDS: There is a fair deal of work in this one, your Honour. October?

GUMMOW J: We will see what happens.

MR REYNOLDS: Thank you, your Honour.

GUMMOW J: We will adjourn to reconstitute.

AT 3.23 PM THE MATTERS WERE CONCLUDED