Citation: R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 367
Court: Supreme Court of New South Wales
Date: 4 May 2011
Judge(s): Simpson J
Background
Four accused persons faced an indictment containing two counts of conspiracy to defraud the Commonwealth, arising from an alleged tax fraud scheme. The CDPP alleged that, from early 1997 until April 2008, the accused conspired to deprive the Commonwealth of income tax revenue by falsely inflating tax-deductible expenses and disguising company income as loans. One accused was an expatriate accountant based in Vanuatu; the remaining three were accountants or accounting staff at a Sydney firm.
The indictment charged two separate counts because the scheme straddled a significant change in Commonwealth criminal legislation. The first count covered the period January 1997 to May 2001, charged under the now-repealed provisions of the Crimes Act 1914 (Cth). The second count covered May 2001 to April 2008, charged under s 135.4(5) of the Criminal Code (Cth), which came into force when the earlier provisions were repealed.
The CDPP expressly acknowledged that what it was alleging was, in substance, a single continuing conspiracy throughout the entire period. The two-count structure reflected the legislative change, not a claim that two separate conspiracies had occurred.
Legal Issues
- Whether the second count should be permanently stayed, on the basis that prosecuting a single conspiracy as two counts was an abuse of process or otherwise impermissible
- Whether the second count was duplicitous (that is, whether it improperly charged more than one offence in a single count) by reason of the alternative mental and physical elements pleaded within s 135.4(5) of the Criminal Code
Decision
On the stay application: Simpson J refused permanent stays of the second count. The court accepted that what was alleged was a single continuing conspiracy, but held that the change in the legislative regime during the course of the alleged conspiracy was a legitimate reason to bring two separate counts. Once the old provisions were repealed and replaced, the conduct after that point could only be charged under the new regime. Charging two counts to reflect the two legislative periods was an appropriate and legally sound response to that situation.
On duplicity: The court rejected the argument that count 2 was duplicitous. The duplicity objection arose because s 135.4(5) contains alternative formulations: the object of the conspiracy may be to cause a loss or to cause a risk of loss, and the required mental state may be knowledge or belief in various combinations. Simpson J held that these alternatives do not create separate offences. They are different ways of proving the elements of a single offence.
The court observed that the alternatives are arranged in descending order of gravity. Proof of a higher alternative necessarily encompasses the lower: for example, proving that an accused knew a loss would occur also proves belief that a loss would occur. The indictment therefore charged one offence under one statutory provision, even though the particulars allowed for alternative scenarios in proving it. No duplicity arose.
All applications for stays and for orders striking out or declaring count 2 defective were refused.
Orders Made
- Application for a permanent stay of count 2 (each accused): refused
- Application by Mr Agius for an order that count 2 is defective as duplicitous: refused
- Applications by the remaining accused to strike out count 2 as duplicitous: refused
Key Takeaways
- A single continuing conspiracy that spans two distinct legislative regimes may lawfully be charged as two separate counts, each referable to the applicable legislation during the relevant period.
- Where the object of a conspiracy charge is to defraud the Commonwealth, the change from the Crimes Act 1914 (Cth) to the Criminal Code (Cth) on 24 May 2001 marks the dividing line between the two regimes for charging purposes.
- Under s 135.4(5) of the Criminal Code, the alternative formulations of the object element and the fault element do not create multiple offences. They are alternative routes to proving a single offence, and charging them together does not render an indictment duplicitous.
- Latent duplicity does not arise merely because a statutory provision contains alternatives structured in descending order of gravity, where proof of a higher alternative necessarily establishes the lower.
- Permanent stays of proceedings are not warranted simply because a continuing course of conduct must be divided across two counts to reflect legislative change, provided the indictment accurately reflects the CDPP's case.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 29D, 86(1), 86(2), 86(3)
- Criminal Code Act 1995 (Cth), Schedule (the Criminal Code), ss 3.1, 3.2, 4.1, 11.5, 135.4(5)
- Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2005 (Cth)
- Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth)
Cases:
- R v LK; R v RK [2010] HCA 17; 241 CLR 177
- Director of Public Prosecutions v Doot [1973] AC 807
- Walsh v Tattersall [1996] HCA 26; 188 CLR 77
- S v R [1989] HCA 66; 168 CLR 266
- Johnson v Miller [1937] HCA 77; 59 CLR 467
- Stanton v Abernathy (1990) 90 NSWLR 565
- B v R [2008] NSWCCA 85
- Romeyko v Samuels (1972) 2 SASR 529
- Jones (1832) 4 B & Ad 345; 110 ER 485