Citation: R v RK and LK [2008] NSWCCA 338
Court: NSW Court of Criminal Appeal
Date: 22 December 2008
Judge(s): Spigelman CJ; Grove J; Fullerton J
Background
The two respondents were alleged to have dealt with money forming part of the proceeds of a scheme to defraud the Commonwealth Superannuation Scheme of approximately $150 million. Each was charged under the Commonwealth Criminal Code with conspiring to deal with money being proceeds of crime, where the relevant mental state alleged was recklessness. Critically, the Crown did not allege that either respondent actually knew the money was proceeds of crime.
After the Crown closed its case, the respondents made a no case to answer submission. The trial judge, Sweeney DCJ, rejected the argument that the evidence was insufficient, but upheld the submission on a different basis: she concluded that, as the Crown had presented its case, the offence charged was not an offence known to the law. Her Honour directed the jury to return verdicts of not guilty.
The Crown appealed to the Court of Criminal Appeal under s 107 of the Crimes (Appeal and Review) Act 2001, which permits a Crown appeal against a verdict by direction. The NSW Attorney General intervened.
Legal Issues
- Whether it is possible, at common law and under the Commonwealth Criminal Code, to conspire to commit an offence for which recklessness is the fault element of the substantive offence.
- Whether the fault element required for conspiracy is satisfied by proof of recklessness alone, or whether the accused must have actual knowledge of the facts that make the agreed conduct criminal.
- Whether s 5.4(4) of the Criminal Code (which provides that recklessness can be established by proof of intention or knowledge) operates as a definitional rule or merely as an evidentiary provision.
- Whether the trial judge erred in directing a verdict of acquittal rather than quashing the indictment.
Decision
The Court of Criminal Appeal dismissed the Crown appeal unanimously, with Spigelman CJ delivering the principal judgment and Grove and Fullerton JJ agreeing.
On the first issue, the Court confirmed that it is legally possible, both at common law and under the Criminal Code, to conspire to commit an offence that has recklessness as its fault element. The existence of recklessness as the fault element in the substantive offence does not make the charge of conspiracy bad on its face.
However, the Court held that a person charged with conspiracy must know the facts that make the agreed conduct unlawful. This requirement stems from the nature of conspiracy itself: the accused must intend that an offence be committed pursuant to the agreement, and that intention presupposes actual knowledge of the criminality-making facts. Recklessness as to those facts is not sufficient to satisfy this mental element for conspiracy. The Court drew a clear distinction from its earlier decision in Ansari, where the Crown case had been that the accused actually knew all the relevant facts. Here, the Crown had expressly confined its case to recklessness, which could not support the conspiracy charge.
On the question of s 5.4(4) of the Criminal Code, the Court departed from part of the reasoning in Ansari by characterising that provision as evidentiary rather than definitional. The subsection establishes how recklessness may be proved, not a substantive expansion of the fault element for conspiracy purposes. The Court also confirmed that the references to conspiracy in the Criminal Code were intended by Parliament to implement the common law, subject to any express statutory modification.
On the procedural question, the Court held that Sweeney DCJ was correct to direct a verdict rather than quash the indictment. The indictment itself was not necessarily defective on its face; it was the Crown's particulars, the evidence adduced, and the way the case was presented that rendered it legally unsustainable.
Orders Made
- The Crown appeal was dismissed.
Key Takeaways
- A conspiracy charge requires the accused to have actual knowledge of the facts that make the agreed conduct criminal; recklessness as to those facts is insufficient to satisfy the fault element for conspiracy, both at common law and under the Commonwealth Criminal Code.
- Conspiring to commit a recklessness-based offence is not impossible as a matter of law. The problem arises only when the prosecution relies exclusively on recklessness, without alleging that the accused knew the criminality-making facts.
- Section 5.4(4) of the Criminal Code, which provides that recklessness can be established by proof of intention or knowledge, operates as an evidentiary rule rather than a substantive definition of the fault element for conspiracy purposes.
- Under the Commonwealth Criminal Code, the term "conspiracy" carries its common law meaning unless Parliament has expressly modified it, consistent with the High Court's approach in Stuart v The Queen (1974) 134 CLR 426.
- Where the Crown's presentation of its case, rather than the indictment itself, reveals the legal deficiency, a trial judge may properly direct a verdict of acquittal rather than quashing the indictment.
Note: The High Court granted special leave and heard the appeal in December 2009. The High Court dismissed the appeal on 26 May 2010: [2010] HCA 17.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 5.4, 11.5, 400.3
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Crimes Act 1914 (Cth)
Cases
- R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89
- Stuart v The Queen (1974) 134 CLR 426
- Giorgianni v The Queen (1985) 156 CLR 473
- Vallance v The Queen (1961) 108 CLR 56
- The Queen v Barlow [1997] HCA 19; (1997) 188 CLR 1
- Churchill v Walton [1967] 2 AC 224
- Kamara v Director of Public Prosecutions (UK) [1974] AC 104
- Baladjam v R [2008] NSWCCA 85
- Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359
- Johnson v Youden [1950] 1 KB 544
- Bank of England v Vagliano Brothers [1891] AC 107
- Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
- R v Wyles; Ex parte Attorney-General (Qld) [1977] Qd R 169