R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 367 (4 May 2011)

Last Updated: 7 August 2013

Supreme Court New South Wales

Case Title:	R v Agius; R v Abibadra; R v Jandagi; R v Zerafa
Medium Neutral Citation:	[2011] NSWSC 367
Hearing Date(s):	27 April 2011
Decision Date:	04 May 2011
Jurisdiction:	Common Law - Criminal
Before:	Simpson J
Decision:	Applications for stay refused.
Catchwords:	CRIMINAL LAW - particular offences - offences against the government - conspiracy to defraud the Commonwealth - s 29D and s 86(1) Crimes Act 1914 - s 135.4(5) Criminal Code Act 1995 CRIMINAL LAW - procedure - application for permanent stay of proceedings on count 2 - indictment alleging two counts of conspiracy - particulars allege single conspiracy - change in legislative regime during course of alleged conspiracy - order for stay refused CRIMINAL LAW - procedure - indictment - duplicity - latent and patent duplicity - pleading of statutory alternatives - single offence charged - orders refused STATUTES - acts of parliament - interpretation - operation and effect of statutes -conspiracy to defraud the Commonwealth - repeal of provisions in Crimes Act 1914 - enactment of provisions in Criminal Code Act 1995 - single continuing conspiracy spanning periods of operation of two legislative regimes - relevant course of conduct prosecuted as two counts of conspiracy
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Criminal Code Act 1995 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2005 Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001
Cases Cited:	B v R [2008] NSWCCA 85 Director of Public Prosecutions v Doot [1973] AC 807 Johnson v Miller [1937] HCA 77; 59 CLR 467 Jones [1832] EngR 870; (1832) 4 B & Ad 345; 110 ER 485 R v LK; R v RK [2010] HCA 17; 241 CLR 177 Romeyko v Samuels (1972) 2 SASR 529 (at 552); (1972) 19 FLR 322 S v R [1989] HCA 66; 168 CLR 266 Stanton v Abernathy (1990) 90 NSWLR 565 Walsh v Tattersall [1996] HCA 26; 188 CLR 77
Texts Cited:	Archbold: Criminal Pleading, Evidence and Practice, 44th ed, (1995), Vol 1 Gillies: The Law of Criminal Conspiracy, 2nd ed, Federation Press, 1990
Category:	Interlocutory applications
Parties:	Regina (Crown) Robert Francis Agius (Defendant) Regina (Crown) Carol Abibadra (Defendant) Regina (Crown) Deborah Judith Jandagi (Defendant) Regina (Crown) Kevin Zerafa (Defendant)
Representation
- Counsel:	Counsel: P Neil SC/S McNaughton (Crown) I Barker QC/P Coady (Agius) D Jordan (Abibadra) K Averre (Jandagi) P Hastings QC (Zerafa)
- Solicitors:	Solicitors: Commonwealth Director of Public Prosecutions (Crown) Greg Murray (Agius) Brown Wright Stein (Abibadra/Jandagi/Zerafa)
File Number(s):

JUDGMENT

1. Each of the four accused (Robert Francis Agius, Carol Abibadra, Deborah Judith Jandagi, Kevin Zerafa) has been arraigned on an indictment containing two counts of conspiracy. The counts are in the following terms:

"1. Between about 1 January 1997 and about 23 May 2001 at Sydney, New South Wales and elsewhere did conspire with each other and with Owen Trevor DANIEL to defraud the Commonwealth.

Contrary to section 86(1) and section 29D of the Crimes Act 1914 (Cwth). (Law Part Code 11102).

2. Between about 24 May 2001 and about 10 April 2008 at Sydney, New South Wales and elsewhere did conspire with each other and with Owen Trevor DANIEL to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person, namely the Commonwealth, knowing or believing that the loss would occur or that there was a substantial risk of the loss occurring.

Contrary to section 135.4(5) of the Criminal Code . (Law Part Code 41506)."

2. The charges are brought by the Director of Public Prosecutions for the Commonwealth of Australia ("CDPP"). As is apparent from the above, the first count is brought under s 86(1) and s 29D of the Crimes Act 1914 (Cth) and alleges a conspiracy:

• to defraud the Commonwealth;

• committed between 1 January 1997 and 23 May 2001.

3. The second count is brought under s 135.4(5) of the Criminal Code and alleges a conspiracy:

• dishonestly to cause a loss to the Commonwealth; or, alternatively, dishonestly to cause a risk of loss to the Commonwealth;

• knowing that the loss would occur, or alternatively believing that a loss would occur; or alternatively, knowing that there was a substantial risk of the loss occurring or alternatively believing that there was a substantial risk of the loss occurring;

• committed between 24 May 2001 and 10 April 2008.

4. By Notices of Motion filed in Court on 27 April 2011, each accused seeks a variety of orders, of which only two are for present determination. Each seeks a permanent stay of the second count. Alternatively, Mr Agius seeks an order "that count 2 is defective as being duplicitous"; the remaining accused seek an order that count 2 be struck out (as duplicitous).

Stay

5. Notwithstanding that the indictment alleges two counts of conspiracy against each accused, what the CDPP in fact alleges is a single conspiracy, extending over the whole of the time frame specified in the two charges - that is, from 1 January 1997 to 10 April 2008. Particulars of the allegation that have been provided to the accused explain the nature of the conspiracy, and the fraud, alleged. From those particulars the following may be derived. The CDPP alleges:

• Mr Agius was an expatriate Australian accountant practising in Vanuatu;

• Mr Daniel (now deceased) was an accountant and principal of an accountancy firm by the name of "Owen T Daniel & Co Burwood" ("OTD");

• Mr Zerafa and Ms Jandagi were accountants employed by or working at OTD;

• Ms Abibadra, while not formally qualified as an accountant, worked as such at OTD;

(Mr Zerafa, Ms Jandagi and Ms Abibadra were referred to as "the OTD accused".)

• sometime in early 1997 Mr Agius and Mr Daniel made an agreement to defraud the Commonwealth by depriving it of income tax legitimately due to it by various corporate clients of OTD;

• put simply, they did this by a scheme that involved, first, falsely inflating the legitimately tax deductible expenses of the companies involved, thus dishonestly reducing the income tax that would be found to be payable, and, second, by concealing or disguising income of the companies as loans, again reducing the amount of income tax that would be found to be payable.

6. It is the CDPP's case that the scheme was always a scheme to defraud the Commonwealth of revenue due to it by way of taxation, and that it continued to operate in essentially the way described throughout the period of the conspiracy. The sole reason for bringing two counts against each accused lies in a radical change in the legislative regime governing offences concerning "the proper administration of government" that was introduced into the Criminal Code with effect from 24 May 2001. There has at all relevant times existed a statutory provision creating an offence of conspiracy to defraud the Commonwealth, although it has been expressed in different ways. The change in the language of the legislation explains the change in the language in which the two charges are expressed. It is important to emphasise that what the CDPP alleges is a continuing course of conduct beginning with the agreement in early 1997 and its progressive implementation thereafter, until it came to an end in April 2008.

The relevant legislation

7. It is necessary to set out the relevant legislation.

8. Immediately prior to 24 May 2001 and as at 1 January 1997, the relevant legislation was s 29D and s 86(1) of the Crimes Act . Those sections then provided as follows:

" 29D Fraud

A person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence.

Penalty: ... imprisonment for 10 years ...

86 Conspiracy

(1) A person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12 months ... is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed."

9. Section 86(1) created a general offence of conspiracy to commit an offence against a law of the Commonwealth, and prescribed the penalty. Section 86(2) specified a more severe penalty where the law of the Commonwealth against which the accused conspired to commit an offence was s 29D. It is worth noting that s 86(2) did not, by itself or in conjunction with any other provision, create an offence. It is merely a provision with respect to penalty - that is, with respect to the penalty applicable to an offence created by s 86(1) in combination with s 29D.

10. Sub-section (3) of s 86 spelled out essential conditions for the conviction of an accused person under s 86. Those conditions were stated as:

"(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement."

I pause to note that the Crimes Act did not contain a definition of the offence of conspiracy.

11. On 15 March 1995 the Criminal Code Act 1995 received Royal Assent. It was proclaimed to commence on 1 January 1997. By s 3 of the Criminal Code Act , the Schedule thereto took effect as the Criminal Code ("the Code"). The Code contained various provisions codifying certain offences against Commonwealth law. Notably absent from the Code at that time were any provisions concerning conspiracy to defraud the Commonwealth. The Code did contain, however, in s 11.5, provisions concerning conspiracy to commit offences against Commonwealth law. That did not affect the continued operation of s 86(2), s 86(3) and s 29D of the Crimes Act .

12. The Code introduced quite novel terminology into the statutory expression of criminal law. All of its linguistic features that need here be noted concern the approach to the long entrenched notions that (in general) criminal culpability depended upon proof, by the prosecution, of both a physical act constituting the crime (formerly known as "the actus reus ") and an accompanying mental element (formerly known as a "guilty mind", or " mens rea ").

13. By s 3.1(1) of the Code, these elements have been re-badged as "physical elements" and "fault elements". By s 3.2, a person may not be found guilty of committing an offence unless the prosecution has proved:

"(a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; [and]

(b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element."

By s 4.1(1), a physical element of an offence may be:

"(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs."

By s 4.1(2), "conduct" means:

"an act, an omission to perform an act or a state of affairs.";

and "engage in conduct" means:

"(a) do an act; or

(b) omit to perform an act."

14. Section 29D and s 86(2) (but not the balance of s 86) were repealed with effect from 24 May 2001. This was achieved by the enactment of the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2005 ("the Code Amendment Act"). By the Code Amendment Act, a new Chapter 7 was inserted into the Code.

15. Chapter 7 of the Code is headed "The Proper Administration of Government". Section 135.4 is to be found in Chapter 7. It relevantly provides as follows:

" 135.4 Conspiracy to defraud

Obtaining a gain

...

Causing a loss

...

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

(a) the person conspires with another person to dishonestly cause a loss, or to dishonestly cause a risk of loss, to a third person; and

(b) the first-mentioned person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring; and

(c) the third person is a Commonwealth entity.

Penalty: Imprisonment for 10 years.

...

General provisions

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

(a) the person must have entered into an agreement with one or more other persons; and

(b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and

(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.

..."

16. Thus, as and from 24 May 2001, the offence of conspiracy to defraud the Commonwealth was wholly contained (and codified) in s 135.4 of the Code.

17. What remained of s 86 after the proclamation of the commencement of the Code Amendment Act was repealed with effect from 15 December 2001. That repeal was achieved by the enactment of the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 ("the Law and Justice Legislation Amendment Act"). That repeal has little, if any, bearing upon the issue for present determination. However, since, on behalf of all accused, considerable reliance was placed upon one aspect of the repealing legislation, it is necessary to set out the relevant provisions, and that can conveniently be done here.

Transitional provisions

18. Both the Code Amendment Act and the Law and Justice Legislation Amendment Act necessarily contained transitional provisions.

19. The transitional provisions of the Code Amendment Act (that is, those relating to the repeal of s 29D and s 86(2) of the Crimes Act and applicable to the pre-Code offence of conspiracy to defraud the Commonwealth) were to be found in Item 418 of Part 2 of Schedule 2, and are in the following terms:

" 418 Transitional - pre-commencement offences

(1) Despite the amendment or repeal of a provision by this Schedule, that provision continues to apply, after the commencement of this item, in relation to:

(a) an offence committed before the commencement of this item; or

(b) proceedings for an offence alleged to have been committed before the commencement of this item; or

(c) any matter connected with, or arising out of, such proceedings;

as if the amendment or repeal had not been made.

(2) Subitem (1) does not limit the operation of section 8 of the Acts Interpretation Act 1901 ."

20. The transitional provisions of the Law and Justice Legislation Amendment Act (that is, those repealing the balance of s 86 of the Crimes Act and applicable to the pre-Code offence of conspiracy other than conspiracy to defraud the Commonwealth) were to be found in s 4 thereof, and were in the following terms:

" 4 Application of amendments

(1) Subject to subsection (3), each amendment made by this Act applies to acts and omissions that take place after the amendment commences.

(2) For the purposes of this section, if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences.

(3) ..."

* * *

21. The proposition for which all accused argued may be stated shortly and simply. It is that, given the acknowledgement on behalf of the CDPP that the allegations against each accused involve a single conspiracy spanning the periods of operation of two legislative regimes, it is not open to the CDPP to charge two separate offences. That, in turn, depends upon a further series of simple propositions: that the essence of a conspiracy is entry into an agreement to commit a crime; that the crime of conspiracy is complete upon the relevant agreement being made; and that, in the absence of evidence of entry into an agreement after the commencement of the second legislative regime, the CDPP is unable to prove a conspiracy during the time to which that regime relates.

22. Shortly and simply stated it may be, but the argument calls for some examination of the statutory provisions associated with the enactment of the Code, as well as some common law principles concerning the offence of conspiracy.

23. As was the case in respect of the Crimes Act offence of conspiracy to defraud the Commonwealth, "conspiracy" is not explicitly defined in the Code. However, there are significant pointers to the meaning of the term as it is used in the Code, including in s 135.4(9). These pointers indicate that the framers of the Code intended to adopt and perpetuate the well established and well understood notion of conspiracy at common law.

The offence of conspiracy

24. An interesting excursion into the history of the crime of conspiracy may be found in Gillies: The Law of Criminal Conspiracy , 2 nd ed, Federation Press, 1990, p 1 and pp 76-79. Although the crime of conspiracy has some ancient statutory origin, it developed independently as a common law offence.

25. The essence of the offence of conspiracy is agreement. It has long been accepted that, at common law, a conspiratorial agreement is the agreement of the parties to do an unlawful act, or to do a lawful act by unlawful means: Jones [1832] EngR 870; (1832) 4 B & Ad 345; 110 ER 485 (cited in Gillies at p 1 and p 71).

26. That characterisation has repeatedly been adopted. That did not change when the common law offence was given statutory recognition, or took statutory form. That, no doubt, is why the Crimes Act did not, and the Code does not, attempt a definition of conspiracy.

27. It is that characterisation that provides the foundation for the argument advanced on behalf of the accused.

28. It is well established that the crime of conspiracy is complete when the agreement is made: Gillies, p 16. Up to a point, that has been modified by statute, in that both s 86(3)(c) of the Crimes Act required, and s 135.4(9)(c) of the Code requires, before an accused can be convicted of the offence, proof of at least one overt act pursuant to the agreement.

29. Notwithstanding that the crime is complete when the agreement is made, it is equally well established that conspiracy is a continuing offence: Director of Public Prosecutions v Doot [1973] AC 807 at 827.

30. While overt acts are frequently the basis for proof of the crime of conspiracy, they themselves did not, at common law or under the Crimes Act , constitute the actus reus of the conspiracy. That remained the formation of the agreement. (As will appear below, that is not an entirely accurate formulation. More accurately, it seems to me, that actus reus was the participation in the agreement.)

31. In R v LK; R v RK [2010] HCA 17; 241 CLR 177, French CJ regarded the principles relating to conspiracy at common law as relevant to questions arising with respect to offences against s 11.5 of the Code: see [59]. The plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) took the same approach: see [97], [107]. Section 11.5, which creates an offence of conspiracy other than to defraud the Commonwealth, is relevantly indistinguishable from s 135.4. Axiomatically, the common law principles are also relevant when considering charges of offences against s 135.4.

32. An identical, if more explicit, approach was taken by Spigelman CJ in B v R [2008] NSWCCA 85. His Honour said:

"31 In my opinion, the references to 'conspiracy' found in the Code are of a technical legal character for purposes of the application of these principles [ie the interpretation of a codified law]. The terminology which the drafters of the Code used were words and phrases which had well established legal meanings. Generally, the legal meanings did not differ from dictionary meanings ...

33 In my opinion, the references to 'conspiracy' found in the Code was (sic) also, intended by the drafters of the Code to be 'fixed by the common law', subject to any express statutory modification ...

34 Furthermore, it is clear from the full text of s 11.5 that the authors of the conspiracy provisions of the Code paid careful attention to the pre-existing common law and to debates about the appropriateness of charges of conspiracy, in lieu of substantive offences. [The Chief Justice then referred to specific sub-sections of s 11.5 and added] ... these matters reflect decisions and debates that have occurred about the application of the crime of conspiracy at common law." (See also [35] and [36].)

It will therefore be necessary shortly to consider the principles that govern the offence of conspiracy at common law.

33. The substance of the submissions made on behalf of the OTD accused was encapsulated in a single sentence, as follows:

"19. Whilst conspiracy may be described as a continuing offence, any criminal liability arising from an agreement to defraud the Commonwealth formed during the currency of s 29D of the Crimes Act could not continue after s 29D was repealed and replaced by s 135.4(5) of the Code ."

The submission went on to refer to the transitional provisions, to which I will return.

34. I am satisfied that the submissions are based upon a fundamental misconception. That misconception is that the offence of conspiracy depends upon the formation of, or entry into , an agreement, as distinct from the existence of, or participation in, such an agreement. The submissions were to the effect that, since the CDPP alleges that the agreement was made during the currency of s 29D of the Crimes Act , then, absent a second agreement formed, made, or entered into after the commencement of s 135.4(5) of the Code, there can be no offence of conspiracy contrary to that section.

35. That is, as I have indicated, fundamentally wrong. What the offence of conspiracy depends upon is the existence of, or participation in, an agreement, and not the precise timing of its formation.

36. A parallel may be found in the decision in Doot , to which reference has already been made. Put shortly, in that case the House of Lords held that a conspiracy could be found to exist, notwithstanding that there was no evidence that the necessary agreement was formed within the territorial jurisdiction of the court in which the offence was prosecuted. See, for example, the judgment of Viscount Dilhorne, at p 823:

"If it is, as in my opinion it is, a continuing offence then the courts of England, in my view, have jurisdiction to try the offence if, and only if, the evidence suffices to show that the conspiracy whenever or wherever it was formed was in existence when the accused were in England. Here the acts of the respondents in England, to which I have referred, suffice to show that they were acting in concert in pursuance of an existing agreement to import cannabis, to show that there was then within the jurisdiction a conspiracy to import cannabis resin to which they were parties ...

(p 824)

Why, one may ask, if the offence of conspiracy is completed when the agreement to do the unlawful act is made, should the conspiracy made abroad or on the high seas be triable at common law in any place where an overt act takes place? This, in my view, can only be on the basis that the overt act, coupled, it may be, with evidence of overt acts in other parts of England, shows that there was at the time of the overt act a conspiracy in England, no matter when or where it was formed ...

(p 825)

... though the offence of conspiracy is complete when the agreement to do the unlawful act is made and it is not necessary for the prosecution to do more than prove the making of such an agreement, a conspiracy does not end with the making of the agreement. It continues so long as the parties to the agreement intend to carry it out ... Proof of acts done by the accused in this country may suffice to prove that there was at the time of those acts a conspiracy in existence in this country to which they were parties and, if that is proved, then the charge of conspiracy is within the jurisdiction of the English courts, even though the initial agreement was made outside the jurisdiction." (italics added)

37. Lord Pearson (p 827) said:

"A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place ... But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."

38. Lord Salmon (p 835) said;

"My Lords, even if I am wrong in thinking that a conspiracy hatched abroad to commit a crime in this country may be a common law offence because it endangers the Queen's peace, I agree that the convictions for conspiracy against these respondents can be supported on another ground, namely, that they conspired together in this country notwithstanding the fact that they were abroad when they entered into the agreement which was the essence of the conspiracy. That agreement was and remained a continuing agreement and they continued to conspire until the offence they were conspiring to commit was in fact committed ... It is irrelevant for this purpose that they had originally entered into the conspiracy abroad and that an offence of conspiracy is committed at the moment when the agreement to commit a crime is first made."

The analogy with the present case is obvious. If an agreement that had its origin extra-territorially can give rise to an offence within territorial jurisdiction, provided that the agreement continues in existence and there is some overt act towards its implementation committed within territorial jurisdiction, so also can an agreement that has its origin outside the temporal limits of the applicable legislation, provided that the agreement continues in existence and there is some overt act committed towards its implementation.

39. Moreover, regard must be had to the provisions of the Code to which I have referred above. While it is true that a necessary element to the offence of conspiracy is a physical element, and the physical element upon which the CDPP relied is "conduct", that term is given an extended definition, so as to include "a state of affairs" (s 4.1(2)). There is no escaping the conclusion that "a state of affairs" includes the existence (continuing) of an agreement to defraud the Commonwealth.

40. It would be highly artificial - to an absurd degree - to suggest that an agreement that had its inception prior to the commencement of the relevant provisions of the Code, but that continued, and continued to be implemented, thereafter, could not be prosecuted under the Code because the alleged conspirators failed, on the change of legislation, to renew, or remake, their agreement.

41. That, is, in my opinion, sufficient to dispose of the present issue.

42. However, in support of their argument, counsel for the OTD accused sought to rely upon distinctions in the transitional provisions applicable to the repeal of s 86 (other than s 86(2)) in the Law and Justice Legislation Amendment Act and those applicable to the repeal of s 29D and s 86(2) in the Criminal Code Amendment Act. Section 4(2) of the Law and Justice Legislation Amendment Act, set out above, in sub-s (2) provides:

"... if an act or omission is alleged to have taken place between 2 dates, one before and one on or after the day on which a particular amendment commences, the act or omission is alleged to have taken place before the amendment commences. "

No such provision is to be found in Item 418 of the Schedule to the Code Amendment Act.

43. What counsel sought to draw from that was that, while s 4 of the Law and Justice Legislation Amendment Act had the effect:

"... of saving charges which allege offences [against s 86(1) other than those involving s 29D] which continue to a day after the repeal of s 86 by reading down the allegations to apply to conduct which takes place before the amendment commenced on 15 December 2001.",

there was no equivalent saving provision in Item 418.

44. On this argument, there is no statutory equivalent that saves charges that allege pre-Code offences against s 29D and s 86(1). In other words (so the argument ran), s 4 permitted the prosecution of charges of conspiracy offences (other than charges of conspiracy to defraud the Commonwealth), even where the offence was alleged to have spanned the dates of operation of the legislation pre and post amendment, and permitted the prosecution to proceed under the pre-amendment legislation, but Item 418 does not have the same effect in relation to s 86(1) and s 29D offences.

45. In my opinion that is a misconstruction of s 4(2). It assumes that "an act or omission" equates with "an offence", or, at least, with the physical element of the offence. That is not necessarily so. The physical element of the offence may be constituted by "a state of affairs", which, as can be seen from s 4.1(2) of the Code, is distinct from an act or omission to perform an act. The omission of "state of affairs" from s 4(2) is significant: if the omission were not intended the legislature could, and might be expected to have used, the word "conduct". It may well be that a conspiracy (other than a single conspiracy to defraud the Commonwealth) that spanned the period of operation of s 86(1) of the Crimes Act and the commencement of s 11.5 of the Code, could be prosecuted as two counts, referable to the different statutory regimes. But that question does not presently arise.

46. Section 4 of the Law and Justice Legislation Amendment Act was relied upon as signifying a different intention in the legislature (or, if that could not be sustained, a different outcome in the legislation) with respect to the prosecution of conspiracies. Conspiracies, on the one hand to defraud the Commonwealth, and, on the other hand to commit offences against other laws of the Commonwealth, on that argument, were treated differently.

47. In my opinion, no such different intent, or different outcome, can reasonably be perceived. Item 418 of the Schedule to the Code Amendment Act preserves the prosecution of the accused in respect of the offence (against s 29D and s 86(1) of the Crimes Act ) alleged to have been committed prior to 24 May 2001. The provisions of the Code permit prosecution of the accused in respect of the offence (against s 135.4(5) of the Code) alleged to have been committed after that date.

48. It may be correct that the offence charged is a single, continuing, offence. What calls for two separate counts is that the relevant conduct is criminalised by two different legislative regimes.

49. I note that senior counsel for the CDPP sought comfort from the use of the past tense in s 135.4(9)(a), in order to argue that an agreement pre-dating the introduction of Chapter 7 is sufficient to establish the necessary agreement.

50. For two reasons, this argument fails. First, precisely the same past (perfect) tense is used in sub-para (b) and sub-para (c) of sub-s (9). If the argument were correct in respect to sub-para (a), and, if, in accordance with ordinary canons of statutory interpretation, the same construction were given to sub-para (b) and sub-para (c), an offence wholly committed prior to 24 May 2001 could be prosecuted under s 135.4. That is plainly not the case.

51. Second, the language of s 135.4(9) is identical to the language of s 86(3), in respect of which there is no question of retrospectivity. The use of the past tense in s 135.4(9) is of no significance.

52. There is no basis for a stay of count 2 of the indictment.

Duplicity

53. On behalf of both Mr Agius and the three OTD accused, it was argued that count 2 is "duplicitous". No authority was cited for the proposition. Duplicity exists where a single charge, properly understood, alleges two or more different offences: see Walsh v Tattersall [1996] HCA 26; 188 CLR 77 at p 84, per Dawson and Toohey JJ (who dissented as to the outcome), citing Archbold: Criminal Pleading, Evidence and Practice , 44 th ed, (1995), Vol 1, p 75. In determining whether duplicity exists in a charge as framed, much will depend upon the proper construction of the statutory provision that creates the offence.

54. Duplicity was explained by Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 (at 552); (1972) 19 FLR 322 (at 345), in the following terms:

"The true distinction, broadly speaking, it seems to me, is between a statute which penalizes one or more acts, in which case two or more offences are created, and a statute which penalizes one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow."

55. There has been a trend to divide alleged duplicity into two kinds, labelled "patent" and "latent": see, for example, B v R [2008] NSWCCA 85 at, for example [11], [16]-[17], [52]-[53]. There is no clear line dividing the two. "Latent duplicity" is sometimes referred to, perhaps more accurately, as "latent ambiguity": Johnson v Miller [1937] HCA 77; 59 CLR 467 at 486; S v R [1989] HCA 66; 168 CLR 266 at 274; Stanton v Abernathy (1990) 90 NSWLR 565 at 669E-F; B v R at [52]-[53]. "Latent" duplicity is duplicity that is not apparent on the face of the indictment, but can be identified on examination of the manner in which the prosecution proposes to put its case, or from the particulars supplied. Essentially, a charge is latently duplicitous if, on that examination, it can be seen that the person accused may (with respect to a single charge) be convicted of one of a number of different offences.

56. An early example is to be found in Johnson v Miller . There, the relevant statute created an offence of being the licensee of premises out of which "any person" is seen coming on any Sunday, outside particular specified times (with provisions for three defences not presently material).

57. Mr Johnson was initially charged with being the licensee of premises out of which "certain person s " (note the plural) were seen coming during the prohibited hours. The prosecution was in a position to prove that 30 men had been seen coming from the premises during those hours, but was only able to identify four of them. The charge was amended to allege that Johnson was the licensee of premises out of which "a certain person" (note the singular) was seen to emerge during the prohibited hours. The prosecution, nevertheless, still proposed to prove the emergence of 30 men, but was not able to specify which of the 30 men was the "certain person" to whom the charge related.

58. The emergence of any of the 30 men may have provided the foundation for a charge under the relevant legislation. Since the emergence of any individual man in the prohibited circumstances was sufficient to prove an offence, the prosecution in truth proposed to prove, in one charge, the commission of 30 separate offences. Thus, although the charge on its face alleged only one offence, the manner in which it was proposed to be prosecuted left open the possibility of conviction of any one of those 30 offences. (That case had particular poignancy, because the statute provided for three defences, two of which concerned the state of mind of the licensee, and one of which concerned the purpose for which the person was on the premises.) The particular vice in the case was that Mr Johnson could not know which of the 30 offences of which evidence was to be tendered was the subject of his conviction.

59. This was a case of latent ambiguity in that Mr Johnson could not have known which of the 30 men was the subject of the charge he faced.

60. Other cases frequently cited as instances of latent duplicity can, on examination, be seen not to be concerned with duplicity at all, but, for example, with uncertainty as to what is in fact charged: see, for example, S v R . Indeed, in Walsh v Tattersall , Dawson and Toohey JJ denied that Johnson v Miller was decided in terms of duplicity, but held, rather, that it was decided on the question whether the indictment was defective in substance.

61. Walsh v Tattersall itself is frequently cited as a case concerning duplicity. I venture to doubt that that is accurate. The case involved the prosecution of Mr Walsh under a legislative provision that, relevantly, created an offence of:

"obtain[ing] by dishonest means any payment or other benefit ..." (bold added)

The charge alleged that Mr Walsh had obtained, by dishonest means, "payment s or benefit s " (bold added) and particularised the offences as receiving:

"payment s of income maintenance amounting to [a stated figure], and payments of medical, rehabilitation and like expenses amounting to [a specified amount]". (bold added)

62. Dawson and Toohey JJ, in the minority as to the result, considered the authorities relevant to duplicity, but would have decided the case on the basis that Mr Walsh could have been in no doubt as to what was alleged against him.

63. Gummow and Gaudron JJ, who, with Kirby J, constituted the majority (as to the outcome) rejected the proposition that the question for determination concerned duplicity. In their Honours' view, the question was whether Mr Walsh was charged with any offence created by the relevant legislation. This hinged around the use of the singular "payment or benefit" in the legislation, against the plural (and composite) "payments or benefits" in the charge. Their Honours said:

"A discrete offence is completed upon the receipt of any one payment or benefit, whereas count 1 spoke of 'payments or benefits' which were made under the Act and obtained by dishonest means."

64. Only Kirby J decided the case on the principles of duplicity (p 92). His Honour analysed the principles governing duplicity (pp 104-110). He concluded that that prosecution infringed those principles (p 112).

65. Although, in the submissions provided on behalf of the OTD accused in support of this claim, reference was made to what was said to be the "failure of the prosecution to provide proper particulars and specificity of its case generally", that complaint was of inadequacy of particularisation, a matter on which I am not in any position to rule, particularly given its irrelevance to the present issue. Nothing was pointed to in the particularisation of the case that would suggest that there is any latent ambiguity in the manner in which the Crown proposes to present the case.

Patent duplicity

66. "Patent" duplicity is said to exist where it is apparent on the face of a single charge that two or more offences are, in reality, alleged: see the discussion in B v R at [16]-[37], and, in relation to a different argument, at [38]-[51]. That discussion is particularly relevant because it concerns asserted duplicity in relation to a charge of conspiracy brought under the Code, although under s 11.5 (which, as I have earlier mentioned, is relevantly identical to s 135.4).

67. Although it was never clearly stated, it appears that it is patent duplicity that is claimed on behalf of all accused. In written submissions provided on behalf of the OTD accused it was asserted:

"Count 2 is duplicitous in form and should be struck down. It pleads five alternative cases in one count. The prosecution should specify the precise conspiratorial agreement alleged and it is not open to charge the accused with a conspiracy with alternative objective."

68. To similar effect were the submissions made on of behalf of Mr Agius, which contained the following:

"12. The Crown declines to say whether it proposes to prove, in respect of count 2, a conspiracy to:

(a) dishonestly cause a loss; or

(b) dishonestly cause a risk of loss.

Neither will the prosecution say whether the alleged conspirators:

(a) knew a loss would occur; or

(b) believed a loss would occur; or

(c) believed there was a substantial risk of a loss occurring."

69. The submissions went on to complain about the inadequacy of evidentiary support for the count, but this does not appear to me to be relevant to the claim of duplicity.

70. In my opinion, the propositions are founded on the misapprehension that the pleading of alternatives in an indictment equates to the pleading of multiples.

71. Count 2 is framed precisely in terms of the alternatives expressly provided in s 135.4(5). It is true that the jury could find one or more of the alternatives proved. But that does not mean that the accused are charged with more than one offence. They are charged with a single offence, of conspiracy.

72. By s 135.4(5) a person (A) is guilty of an offence (of conspiracy to defraud the Commonwealth) if:

A conspires with another person:

(a) dishonestly to cause a loss to a third person

OR

(b) dishonestly to cause a risk of loss to a third party;

AND

(c) A knows that the loss will occur;

OR

(d) A believes that the loss will occur;

OR

(e) A knows that there is a substantial risk of the loss occurring;

OR

(f) A believes that there is a substantial risk of the loss occurring;

AND

(g) the third person is a Commonwealth entity.

73. There is no multiplicity of offences. The analysis above shows that the s 135.4(5) offence consists of three elements, two of which may be proved by alternatives. The CDPP will need to prove at least one of the alternatives in the two boxes that contain alternatives.

74. As mentioned above, the offence in B v R was also of a Code conspiracy. The offence alleged to be the subject of conspiracy was an offence against s 101.6(1) which provides:

"A person commits an offence if the person does any act in preparation for, or planning, a terrorist act ." (bold added)

By sub-s (2) a sub-s (1) offence may be committed even if the act:

"(c) ... is done in preparation for, or planning, more than one terrorist act."

75. B was charged with conspiracy, with others:

"... to do acts in preparation for a terrorist act (or acts)."

76. Two separate arguments were put in relation to the assertion of duplicity. Both were rejected. The first was that, by reason of the singular - "conspires to commit an offence " - in s 11.5(1), it was not possible to allege a conspiracy to commit more than one offence.

77. The second argument, also rejected, was that:

"There is clearly a difference between entering into an agreement to do an act or acts in preparation for a single terrorist act and entering into an agreement to do an act or acts in preparation for more than one terrorist act. Those two agreements are not the same"

and, as pleaded, two conspiracies were alleged.

78. The Court cited the paragraph from Romeyko v Samuels (above) and held:

"51 ... With respect to an offence under s 106.6 itself, or with respect to an agreement to commit such offences under s 11.5(1), there is no element of duplicity by pleading the statutory provision identifying 'forbidden characteristics', to use Bray CJ's words."

79. There is, here, only one offence alleged: it is the offence of conspiracy to defraud the Commonwealth. If a jury were to find that the object of the conspiracy was dishonestly to cause a loss to the Commonwealth, or alternatively, dishonestly to cause a risk of loss to the Commonwealth, and , that any accused had one of the states of mind set out, then that accused will be convicted of that offence, and not of some other offence.

80. I also note this, s 135.4(5) makes provision for two alternatives in relation to one element (the object of the conspiracy) and for four alternatives in respect of another (the state of mind of the alleged conspirator). In each case, the alternatives can be seen to be in descending order. By that I mean that, in relation to the objects of the conspiracy alternatives, if the CDPP is able to prove that an accused conspired dishonestly to cause a loss to the Commonwealth, then, necessarily and axiomatically, he can prove that accused conspired dishonestly to cause a risk of loss to the Commonwealth. That is, the first encompasses the second. If the CDPP fails to prove conspiracy to cause loss, it may, nevertheless, be able to prove conspiracy to cause a risk of loss.

81. The same applies in relation to the state of mind element. If the CDPP can prove that an accused knew that the loss would occur, then, necessarily and axiomatically, it can prove that the accused believed that the loss would occur; if the CDPP can prove that an accused knew that a loss would occur, it can prove that that accused knew that there was a substantial risk of the loss occurring; if the CDPP can prove that an accused knew that there was a substantial risk of the loss occurring, it can prove that that accused believed that there was a substantial risk of that loss occurring.

82. In other words, with one exception, each alternative encompasses that below it. The exception is between (a) and (e). It does not necessarily follow that, if an accused believes that the loss will occur, that accused knows that there is a substantial risk of the loss occurring.

83. Nevertheless, the analysis is useful, because it illustrates that only one offence is charged, although there may be various alternative scenarios that prove it.

84. In respect of Mr Agius' Notice of Motion, the orders sought in para 1 and para 3 are refused. In respect of the Notice of Motion filed on behalf of Ms Abibadra, Ms Jandagi and Mr Zerafa, the orders sought in para 1 and para 2 are refused.

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