Dickson v The Queen [2016] HCATrans 307 (16 December 2016)

Last Updated: 20 December 2016

[2016] HCATrans 307

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
SYDNEY No S171 of 2016

B e t w e e n -

ANTHONY JAMES DICKSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 DECEMBER 2016, AT 12.16 PM

Copyright in the High Court of Australia

MS R.L. SEIDEN, SC: May it please the Court, I appear with my learned friend, MR W.P. LOWE, for the applicant. (instructed by Tully & Chiper Lawyers)

MR M.G. McHUGH, SC: May it please your Honours, I appear with my learned junior, MR S. FLOOD, for the respondent Crown. (instructed by Director of Public Prosecutions (Cth))

BELL J: Yes.

MS SEIDEN: Thank you, your Honours. Your Honours, if I could start with the indictment, which your Honours will find at application book, page 5, and the first count of which the applicant was convicted of, and your Honours will note the two confederates to the conspiracy and the time period, 15 November 2005 to 2 December 2011:

did conspire with each other to dishonestly cause a loss or to dishonestly cause a risk of a loss to a third person, namely the Commonwealth –

Count 6 is on the next page, and your Honours will note the same confederates and substantially the same time period, between 15 November 2005 and 26 June 2012, they:

did conspire with each other to deal with property . . . believing it to be the proceeds of crime.

the property being the proceeds from the first conspiracy, your Honours.

BELL J: Yes.

MS SEIDEN: If we might start with count 6, for that raises the question, the significant question the applicant contends, how to ensure that an accused is not convicted of the same conspiracy twice and, your Honours, Agius provided one solution to that question and that was to ensure that the time periods for each conspiracy are mutually exclusive, and that follows from the fact that the conspiracy, the offence of conspiracy, is continuing in the existence of an agreement to dishonestly do something during a specified time period. So the offence lies in the continuation of the state of affairs through the two time periods. So, if one has mutually exclusive time periods, there can be two offences of conspiracy, but here we have overlapping time periods and - - -

BELL J: Overlapping time periods but a different agreement.

MS SEIDEN: Well, your Honour, it is submitted that it was the same agreement. The Court of Criminal Appeal found there was one overarching scheme and the trial judge in the first interlocutory decision described it as one agreement and the question of whether there was one agreement did not go to the jury.

If I could take your Honours to the decision of the Court of Criminal Appeal; it is at application book, the relevant passage is page 441, and the very bottom of that page, paragraph 82, the reference there was to the first interlocutory decision of the trial judge and their Honours at the Court of Criminal Appeal said:

the trial judge correctly concluded that there was an overall scheme put in place by the appellant, being an agreement to obtain –

and it follows on the next page and that overall scheme being the steps in count 1 and the steps in count 6.

BELL J: I am sorry, what paragraph are you - - -

MS SEIDEN: It started at 82, your Honour - - -

BELL J: I see, yes.

MS SEIDEN: - - - at the bottom of page 441, that is described as “an overall scheme”. It is the very last line of that page. Then also, if I could draw your Honours’ attention to paragraph 90 of that judgment, which is at application book 443, the last paragraph. The Court of Criminal Appeal said:

The conduct charged by counts 1 and 6, whilst arising from a course of conduct with a single overriding dishonest purpose, was different in terms of both the overt acts undertaken and the criminality of those acts.

One question that arises here, your Honours, are what is criminality when one is talking about two conspiracies and it is submitted that where there are overlapping time periods, the criminality is found in the agreement. The agreement is the gravamen of the offence and so one needs an additional agreement or a discrete agreement. If I could draw your Honours’ attention to what the trial judge had said and that is set out in the applicant’s submissions. We have extracted that from the application book 490 and paragraph 29. The trial judge at [27] of his Honour’s decision said:

It maybe that, in a particular case of which this is one, that the “agreement’ referred to in s 11.5(2)(a) and s 135.4(9)(a) of the Code may be the same agreement –

and then just dropping down a line –

The Crown Prosecutor disclaimed that in this case. He submitted that the Crown case is that there are two different agreements. However, even if there was only one agreement, it still means that there are different elements to the offences notwithstanding there is some overlap as well.

BELL J: But his Honour, as I read the passage, is not rejecting the Crown’s submission - - -

MS SEIDEN: Well - - -

BELL J: - - - that there were two different agreements. There was - - -

MS SEIDEN: Indeed, your Honour, the trial judge had originally said, in the trial judge’s view, that the first line:

It maybe that, in a particular case of which this is one, that the “agreement” . . . may be the same agreement –

and then his Honour noted that the Crown had disclaimed that but nevertheless his Honour said but even if there was only one agreement that would really not be a problem. The issue that really arises is the Court of Criminal Appeal found one overriding scheme. The trial judge has referred to it as single agreement. It did not go to the jury. The jury was not asked, are you satisfied this is two discrete agreements. Our learned friends do not seem to be suggesting that if there was only one agreement, there could be two offences of conspiracy. What our learned friends say is that it was two agreements but they point to the - - -

BELL J: That is the way the jury was directed, surely. The jury were directed in relation to count 6 to consider whether the elements of the conspiracy there charged were proved in each instance beyond reasonable doubt, and the separate elements in relation to the offence charged in count 1 were the subject of similar directions.

MS SEIDEN: Well, if I could take your Honour to – the applicant submits that it was open for the jury to find that there was one agreement, so if I could take your Honour to the written directions - - -

BELL J: Yes, where do we find those?

MS SEIDEN: They start at 497 of the application book. Our learned friends point to written direction 8, which is at page 500, and say that this is the direction that identified for the jury that they needed to be satisfied of two agreements and it says:

You will only consider this count if you have found the accused guilty of Count 1 AND if you are all unanimously satisfied beyond reasonable doubt that the agreement the subject of Count 1 was formed no later than 12 January 2007.

Your Honour, that is, with respect, a timing direction about the formation of the agreement the subject of count 1. It does not say anything about whether the agreement the subject of count 6 needed to be a separate and distinct agreement. If I could take your Honour then to written direction 10, it says that:

A person –

It defines what dealing with money is, so for count 6, the dealing offence, it defines what the jury had to be satisfied of and it says, it is at the bottom of page 500, that the person:

deals with money or other property if the person does any of the following:

and then on the next page:

(a) receives, possesses –

the amount. So, your Honours, the jury were not directed that they needed to be satisfied of more than merely receiving or possessing the proceeds which were the subject of count 1, and it is submitted that the jury may well have been satisfied of any of those things and if the jury was merely satisfied that the confederates in the second alleged conspiracy merely received or possessed the proceeds, then that was enough to convict on count 6 and that, with respect, is no different from what was needed in count 1 and - - -

KEANE J: Ms Seiden, I am finding the issue of principle a little illusive. In this case, the Crown contended that there was an agreement to create a false impression as to deductions - - -

MS SEIDEN: Indeed.

KEANE J: - - - and they also alleged that there was an agreement that the proceeds generated by that deception would be kept in an account.

MS SEIDEN: Indeed. It is submitted that that - - -

KEANE J: - - - and dealt with via that account. Now, what is the problem with that?

MS SEIDEN: For the reason that the jury needed to be satisfied that those two agreements were actually two separate and distinct agreements, for the reason, your Honour, that the offence of conspiracy lies in the continuing state of affairs. Now, in the first count, this was the count of dishonestly causing loss, nobody suggested that the applicant was out to get the revenue for the purposes of just getting the revenue.

The allegation in count 1 was always an allegation of profiting. So, it was not simply just to harm the revenue. So the very agreement, the subject of the first conspiracy, had within it the concept that the confederates were trying to profit, and so, the second conspiracy of dealing with those proceeds, the jury needed to be satisfied that that was a separate and distinct agreement.

KEANE J: Well, we will agree to generate profit and then we agree to deal with it.

MS SEIDEN: In the event that they were separate agreements, your Honour, and the complaint that the applicant makes is that it was not clear to the jury that they had to be separate and distinct agreements.

BELL J: Ms Seiden, was any point taken at trial as to the deficiency of these directions and the suggestion that the jury might not have appreciated that the agreement charged in count 6, consistently with the way the directions were put, was directed to the dealing with the proceeds?

MS SEIDEN: I think the answer is no, your Honour. The answer is no, your Honour.

BELL J: The answer is no such request was made.

MS SEIDEN: No such request was made. Nevertheless, it is submitted that objectively one cannot be satisfied that the jury understood that the two agreements, the subject of each conspiracy charge, needed to be separate and distinct and that the reason they had to be separate and distinct is for the reason that that for the offence of conspiracy lies in the continuation of the state of affairs. There was only one state of affairs. If there was only state of affairs - - -

BELL J: On the way the matter was run, there were two states of affairs. One was an agreement to falsely declare the amount of the depreciation of the three technologies and the other was the agreement involved in the various transactions around the world to stash the proceeds.

MS SEIDEN: Your Honour, with - - -

BELL J: Where was the room for confusion in that?

MS SEIDEN: Well, your Honour, with respect, the written directions simply do not go to that. They go to the formation and they do not identify, particularly in written direction 10, that the jury could only convict if satisfied that the second agreement was separate and distinct and that that part of the hiding of the proceeds was used as evidence to demonstrate that there had been the first conspiracy.

For instance, if instead of the moneys going ultimately back to the applicant’s hands, if the money had been demonstrated to go to obligations under the technologies, that would have rebutted the very first conspiracy. So the facts and the evidence were it very much intermingled, but importantly, the jury was not given a very clear and distinct direction about finding two states of affairs, or two different and discrete agreements.

BELL J: One way to ascertain whether in the reality of the trial that was had the jury were not given a clear direction, is whether senior counsel appearing for the accused raised it as an issue.

MS SEIDEN: We accept that, your Honour, as certainly something that arises. However, it is submitted that an objective look at written directions, it does not get there, and the Court of Criminal Appeal was satisfied that there was one overarching scheme and the trial judge described it as one agreement and in the face of those statements by the court, and the Court of Criminal Appeal, it is submitted that that inference that your Honour raises is rebutted. Your Honours, if I could very briefly then now turn to – if I could just summarise by saying that the real problem that the applicant has is the question did not clearly go to the jury.

In relation to count 1, the heart of the disagreement or the heart of the grounds in relation to count 1, is founded on a disagreement between the parties as to the meaning of, and I quote, “the thing”, that must be intended to be done pursuant to the agreement, and also whether the particularly dishonesty, the dishonesty, is its own fault element. If I could take your Honours to the legislation, do your Honours have - I am sorry, it is actually in the application book, at 521, but I understand your Honours were also given a more comprehensive set of legislation, but application book 521 is the relevant section and that sets out section 135.4(5):

A person commits an offence if:

(a) the person conspires with another person to dishonestly cause a loss, or to dishonestly cause as risk of loss –

and then subsection (9) states that:

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

and then paragraph (b):

the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement –

and our learned friends say that “the thing” is the object of the conspiracy - - -

KEANE J: Why were there not then two things? One is to create the false deductions, and the second thing is to generate profit for them, and then, the second thing, is to deal with the profits they generated.

MS SEIDEN: Well, your Honour, it is submitted that if that was the particular dishonesty in count 1, then count 6 is entirely the same conspiracy. So we would say those elements, or those elements of the agreement, were in fact part of the agreement. We would agree with your Honour that they were part and parcel of the overarching scheme and the overarching agreement which takes into – then brings into account the conspiracy in count 6 as well as count 1.

But, in addition to that confusion for the jury was whether it was in relation to a particular technology or all of them, and it is submitted that the problem with count 1 was there was no direction about that with respect to the parties being in agreement.

BELL J: How was the matter run at trial? Was it put that there had to be agreement as to one of the three technologies?

MS SEIDEN: Your Honour will see written direction 4 which is at - - -

BELL J: Page 498.

MS SEIDEN: Thank you, yes, it begins at 498, your Honour.

BELL J: It was at least one of the technologies.

MS SEIDEN: Indeed, the knowledge had to be in at least one. But written direction 4 only applies to the applicant. It does not apply to the co-accused. The only dishonesty direction that applied to the co-accused is at 2.3, which is a general dishonesty, and I am reminded that 2.1 deals with both the co-accused and deals with dishonesty, but it is submitted that that is really just quite a general direction about dishonesty and for the reason that “the thing” that must be intended to be done pursuant to the agreement must include the dishonesty and for the fact that section 135.4(5) also refers to doing – dishonestly causing a loss, that dishonesty must be separately proved.

BELL J: The complaint is that in relation to the co-accused there was not an equivalent to paragraph 4, that is this issue.

MS SEIDEN: That is the pointy end of the issue, yes, your Honour.

BELL J: And again, this is not a point that was taken by senior counsel appearing for the accused at trial?

MS SEIDEN: Indeed. Senior counsel took a point about causation - - -

BELL J: That was a different point.

MS SEIDEN: A slightly different point, your Honour.

BELL J: Well, considerably different. There is a refinement to this point as to the inadequacy of these directions which might escape many.

MS SEIDEN: Your Honour, the submission at its heart is that there needs to be a causal nexus between the dishonesty and the causing of the harm and the parties need to be ad idem about it, and that is because the word “dishonesty” is so important in section 135.4 and the parties have to be in agreement as to the dishonesty to cause the loss. It is submitted that in the face of written direction 4 where three particular technologies are teased out, and there is no direction about that in relation to the co-accused, that there was objectively not demonstrated the requisite causality despite not having been taken at the trial, your Honour. May it please the Court.

BELL J: Yes, thank you. Thank you, Mr McHugh, we do not need to hear from you.

We are of the opinion that were special leave to appeal to be granted in this matter there are insufficient prospects that the appeal would succeed. Special leave is refused.

AT 12.38 PM THE MATTER WAS CONCLUDED