A full court of the High Court on Wed 5.6.2013, unanimously dismissed the appeallant’s appeal against his conviction in the NSW Supreme Court for conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Criminal Code (Cth).
The appeallant was charged with 2 counts of conspiracy, both of which arose out of a single scheme to defraud the Commonwealth of tax revenue. This scheme began in 1997 and continued until 2006.
The first count alleged that the appeallant conspired with others to defraud the Commonwealth, contrary to ss 86(1) and 29D of the Crimes Act 1914, between 1 January 1997 and 23 May 2001. The second count alleged that he conspired with others to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(5) of the Criminal Code, between 24 May 2001 and 23 October 2006. The appeallant was charged with 2 separate counts because the relevant provision of the Crimes Act was repealed with effect from 24 May 2001. From 24 May 2001, the offence of conspiracy to defraud the Commonwealth was contained exclusively in s 135.4 of the Code.
The appeallant was convicted on both counts. He sought a permanent stay of the proceedings on the 2nd count but that stay was refused by the primary judge (Simpson J) in R v Agius [2011] NSWSC 367. The appeallant’s appeal against that decision was dismissed by the NSW Court of Criminal Appeal in Agius & Ors v R [2011] NSWCCA 119.
By special leave, the appeallant sought to appeal to the High Court against his conviction on the second count. Before the High Court, the appeallant argued that the conduct criminalised by s 135.4(5) of the Code was the formation of a conspiratorial agreement. The appeallant contended that he should not have been convicted on the second count because he had not entered into a second agreement after s 135.4(5) commenced. He also argued that the offence in s 135.4(5) could not be satisfied by his participation in an existing conspiratorial agreement, otherwise the section would be given retrospective effect.
The High Court unanimously dismissed the appeal. The Court held that the offence in s 135.4(5) of the Code required the existence of, and participation in, an agreement. But the agreement did not need to be formed after s 135.4(5) commenced. The Court said the appellant’s continued participation in the agreement was capable of constituting the offence. The Court also held that, because the taxpayer’s offence was his continued participation in the conspiratorial agreement after s 135.4(5) commenced, the provision did not operate retrospectively.
(Agius v The Queen [2013] HCA 27, Full High Court, French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ, 5 June 2013.)
[LTN 107, 5/6/13]