Fox v The Queen [2012] HCATrans 138 (7 June 2012)

Last Updated: 18 June 2012

[2012] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B5 of 2012

B e t w e e n -

BRIAN FRANCIS FOX

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 7 JUNE 2012, AT 4.33 PM

Copyright in the High Court of Australia

MR A.M. HOARE: If it please the Court, I appear for the applicant. (instructed by Legal Aid Queensland)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friends, MR A.J. MacSPORRAN, SC and MR A.K. GETT, for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ: Yes, Mr Hoare.

MR HOARE: Might I first answer what may be an apt criticism of the Crown which is in respect of the conclusion of the Court of Appeal, the offence was not one committed within any State. Now, that is the error which is the effective complaint of ground 1 of the draft notice of appeal. The error accumulates upon paragraph [51] of the judgment, and that appears at page 155 of the record where it states:

In Australia, too, conspiracy has been recognised as a continuing offence, both under Australian common law and under the Crimes Act 1914 (Cth).

That is technically correct, and may the concession first be made that there is no issue by the applicant to assert that the observations made as to the law of conspiracy at common law as expressed in the judgment are incorrect. What is contended is that in particular – and I will hand up at this stage – this is by agreement with the parties that at the time that Woss v Jacobsen was considered, as well as R v G, F, S and W, section 86 of the Crimes Act was expressed in simpliciter, if I use that shorthand term, without the additional conditions which are contained in section 86(3) of the Code which is the subject under consideration.

From that point there may be consideration as the Code presently stands and what was the subject of consideration of the Court of Appeal; that is, the actus rea of the offence as contained at section 86(3)(a), the mental element is contained at section 86(3)(b) and then there is an additional – which was described by your Honour the Chief Justice French at page 206 of R v LK – an additional screen, which is the commission of an overt act. Now, it is that commission of the overt act which the applicant contends is the commission of the offence for the purposes of section 80 of the Constitution which then requires the consideration of sections 70 and 70A of the Judiciary Act.

FRENCH CJ: I am sorry, are you saying the commission of the overt act is the commission of the offence of conspiracy?

MR HOARE: That is so. It is said in the context of the crime is complete as at the commission of the first overt act. The remaining overt acts are at least evidence of the commission of the conspiracy, as they were in fact at common law, but the crime is complete as it is alleged upon the first overt act. It is not submitted that the Crown need to prove to found jurisdiction in that regard, the commission of the overt act. It is sufficient for them to allege the first overt act. In this case the first overt act was the appointment of directors and that occurred in Victoria by the co-offender, Henke.

KIEFEL J: Would you mind summarising for me just what your argument is about the Court of Appeal’s conclusion that the offence is not committed within any State by reference to the elements of the offence? Could you just summarise what your point is?

MR HOARE: The argument comes effectively to these points. The first overt act of the co-offender, Henke, was in Victoria. The offence is complete at that point so far as it relates to the offender, Henke. He then should properly be tried in Victoria. The offenders, Fox and Huston, their first overt act is when they join the conspiracy - - -

KIEFEL J: I see.

MR HOARE: - - - is in Queensland, and so they were properly tried in Queensland. The effect of Mr Henke - - -

FRENCH CJ: Do you accept there were acts in other places to which Mr Henke was party?

MR HOARE: Yes, that must be the case, as the evidence – as both a substantive offence and as a rule of evidence. But in terms of founding the jurisdiction, the argument which was - well, sorry, the conclusion which was reached by the Court of Appeal is an accumulation of that fundamental error, it is submitted, by applying the common law rules - sorry, the law in respect of the common law as to conspiracy in respect of the Code offence and it is an element of the offence that the overt act be committed and Henke can be convicted upon that act alone.

FRENCH CJ: When you say “founding jurisdiction”, in what sense are you using jurisdiction?

MR HOARE: I am not using it in the sense of a forum consideration which was often the considerations which were the subject of reasoning in Lipohar and the other case that followed, DPP v Doot, for that matter. We use it in terms of granting the jurisdiction under the Act to the Queensland court, and that it is because the commission of the first overt act is within a State, it is section – it is Victoria in which Mr Henke should have been prosecuted and not in Queensland.

KIEFEL J: Of course, the conspiracy in question did not just involve him, did it?

MR HOARE: No, it did not.

KIEFEL J: It was a conspiracy involving other persons.

MR HOARE: It did, and it involved conspirators whose actions, for example, were in Vanuatu and in other States.

KIEFEL J: Yes, that is right.

MR HOARE: That is a matter which may be a consideration if there was an issue of forum to be considered in the proper sense as to whether or not there was a nexus between the State and the crime, but that is not the argument which is being held by the applicant.

KIEFEL J: But it might affect the question of when you consider the conspiracy since it is a single conspiracy involving overt acts committed in different places, it might be quite relevant.

MR HOARE: Yes, and that is not the construction which is asserted by the applicant. It comes to the point which in simple terms is as has already been stated and there is support for that proposition respectfully in the judgment of R v LK as to it being an element of the offence in respect of the Chief Justice’s reasons which appear at 205 and 206 and, in particular, at 213 of that judgment where the elements are analysed. That is at paragraph 78 of that decision at item 3; that is, a person commits a conspiracy with those three elements being present.

KIEFEL J: What page is it again?

MR HOARE: I am sorry, that is at paragraph 78 at page 213 of the decision.

FRENCH CJ: Here you have co-offenders charged with one conspiracy, do you not?

MR HOARE: That is so.

FRENCH CJ: You say that section 70 is not to be read as capable of dealing with a case in which you have co-offenders committing offences in different States – at least committed acts constituting the offence in different States?

MR HOARE: Yes. It is asserted the touchstone of jurisdiction is the commission of the first overt act. If it were the case - - -

FRENCH CJ: In other words, you are saying it severs off one member of the conspiracy from another?

MR HOARE: Possibly. If in this case the conspiracy had concluded in Queensland, for example, it would be a different matter, but in this case the conspiracy concluded in Vanuatu.

FRENCH CJ: Yes.

MR HOARE: The unfairness which resulted from his joinder is contained at appeal record 150 at paragraph [29]. Now, I understand that that remains the position of the Crown, and it is submitted in conclusion that this is an appropriate matter for consideration of this Court as it is stated by the applicant that there is an error in respect of the Court of Appeal’s reasoning as its starting point considering common law as it related to a now repealed section of the Code. In respect of the second ground – unless there was anything further that the Court wished to address me on in respect of that aspect – in respect of the second ground, primary reliance remains within the outline of submissions.

FRENCH CJ: What do you say about the point in the Court of Appeal judgment that the assets of the target companies have been lost by a step of which the applicant was aware when the assets were transferred to the directors in return for loan agreements which were not to be enforced?

MR HOARE: Yes. The quarrel which is taken with that is that the aspect of the – sorry, the character of the asset did not change but it remained in the context of Mr Fox a director’s loan which then became a director’s loan, albeit with other entities liable for its payment. Now, that is distinguished with other companies which were introduced to the scheme which had assets in terms of real assets which are not simply that chose in action.

KIEFEL J: At that point you could really say that the assets had been stripped. All the company was left with was a promise and the question then is, what value did it have?

MR HOARE: All it had prior to that was a promise also. They were not evidenced in writing. It was merely a director’s loan, as I have stated, payable on demand on the demand of the company, but it did not change in character. It was not a circumstance where the company had some bricks

and mortar which was then valued and that took effect as a director’s loan. That was the point which is made which then makes the assignment, as asserted on behalf of Mr Fox, critical in the jury’s consideration. So, although Aston v Burnell may properly state a conclusion which was specific to that case, in respect of this case the assignment was critical to establish the mens rea of Mr Fox. Those are the submissions on behalf of the applicant.

FRENCH CJ: Thank you, Mr Hoare. We will not need to trouble you, Ms Abraham.

The applicant was convicted in the Supreme Court of Queensland of conspiracy to defraud the Commonwealth in connection with a scheme to strip the assets of target companies in favour of their directors so that the companies would not be able to meet their tax obligations. The applicant seeks special leave to appeal from the decision of the Court of Appeal dismissing his appeal against conviction.

On the first question, namely, whether it was necessary that the applicant be aware of a particular step in the scheme involving an assignment of loans from target companies to another entity, the conclusion of the Court of Appeal was that it was not necessary that the applicant be aware of the particular dishonest means by which his co-conspirators defrauded the Commonwealth was correct. Moreover, the Court of Appeal concluded that the assets of the target companies had been lost by a step of which the applicant was aware taken earlier in the implementation of the scheme when the assets were transferred to the directors in return for loan agreements which were not to be enforced.

In our opinion, there is no question of principle warranting a grant of special leave disclosed in relation to the first question.

As to the second question, whether pursuant to section 80 of the Constitution a co-accused of the applicant should have been separately tried in Victoria, the decision of the Court of Appeal is not attended with sufficient doubt to warrant the grant of special leave. Special leave will be refused.

The Court will now adjourn until 9.30 tomorrow morning.

AT 4.48 PM THE MATTER WAS CONCLUDED