In the circumstances of the present case, the provisions of sub-s (4), permitting recklessness to be proved by proof, not only of recklessness, but also of intention or knowledge, are of significance. I will return to this.
23 Recklessness, as I have already mentioned, was the state of mind necessary for the commission of the offence the object of the conspiracy - what I might call the subsidiary offence. The recklessness to which the indictment adverted was recklessness as to a circumstance in which conduct that constituted the s 400.3(2) offence was said to have occurred - the circumstance being the existence of a risk that the money would be used in, or to facilitate, the commission of a crime. If the appellants had been charged with the substantive offence of money laundering, by s 5.4(1)(a) the Crown therefore would have had to prove that each appellant was aware that there was a substantial risk that that circumstance existed or would (in the future) exist. But the appellants were not charged with the substantive offence of money laundering: they were charged with conspiracy to money launder. The agreement the subject of the conspiracy necessarily predated the anticipated money laundering. To prove the conspiracy the Crown had to prove that the appellants agreed to commit an offence aware of the relevant circumstance. Where (as here) the circumstance is, itself, the existence of a risk, putting the language of s 400.3(2)(c) together with that of s 5.4(2)(a) produces a result that, at first glance, might appear odd, but which is not in reality, (for reasons which will appear) untoward. The result is this: the Crown had to prove that the appellants intentionally agreed that each would deal with money in the future, and that, at that future time each appellant would be aware that there then would be a substantial risk that there was a risk that the money would become an instrument of crime (ie would be used in, or to facilitate, the commission of an indictable offence), and (by sub-para (b)) that, having regard to the circumstances known to him, it was unjustifiable to take that risk. That is conceptually unacceptable. But it emerges only from the unextended meaning of "recklessness". To prove recklessness, by reason of s 5.4(4) the Crown could also prove either that the appellants intended or knew that the money would become an instrument of crime. That is, in fact, what the Crown here set out to do.
24 The concept of "instrument of crime" in s 400.3 introduces into the conspiracy offence here in question a second tier of inchoate crime - the money laundering offence is, for relevant purposes, committed where a second crime is in contemplation. Conspiracy consists of an agreement to commit a criminal act (or an agreement that a criminal act will be committed); where the criminal act alleged to be the subject of the agreement is money laundering, the Crown must also prove that the person accused has in contemplation a second crime. That is because money laundering is, by definition, committed where another crime is envisaged - and is not committed unless some other crime is in contemplation (or has been committed).
25 The second crime in question in this case was said to be a crime against s 31 of the FTR Act. The objects of the FTR Act are set out in s 4 thereof, and include facilitating the administration and enforcement of taxation laws, and the enforcement of laws of the Commonwealth and of the Territories. The FTR Act requires, on the part of various identified entities, such as banks and financial institutions, reporting, to the Director of the Australian Transaction Reports and Analysis Centre ("AUSTRAC"), of "significant cash transactions". "Significant cash transactions" are transactions involving the transfer of currency of not less than $10,000 in value. By corollary, cash transactions of less than $10,000 are not required to be reported - they are "non-reportable cash transactions".
26 S 31 of the FTR Act creates an offence of being a party to two or more non-reportable cash transactions where, for any of a variety of reasons set out in the section, it would be reasonable to conclude that the transactions were conducted in that manner for the sole or dominant purpose of avoiding the provisions of the FTR Act. This was the crime of which there was, on the Crown case, a risk of being committed or facilitated by the depositing of the money by Sadiq Habiburahman. Such transactions are commonly referred to as "structured transactions". Alternatively, the Crown proposed that the crime of which there was a risk was a crime of tax evasion.
27 It is not necessary, in order to prove the existence of a risk that money or property will become an instrument of crime, for the Crown to establish a risk that a particular offence will be committed in relation to the money or property (or a risk that a particular person will commit an offence in relation to the money or property: s 400.13(2) specifically so provides. Notwithstanding that, the Crown case was built upon the proposition that there was a risk that the money with which the appellants dealt would become an instrument of crime by being used in structured transactions in order to avoid the provisions of the FTR Act (or, alternatively, that the money would be used in the commission of a tax evasion offence); and, indeed, that this was what the appellants intended.
28 Thus, incorporating the various provisions to which I have referred, the charges in the indictment may be expressed more simply. The allegation made by the Crown was that the appellants conspired with each other, with Z, and with others, to commit the offence of money laundering. Specifically, the Crown alleged that they did this by arranging that Sadiq Habiburahman, on each of a number of occasions, deposit a sum of less than $10,000, totalling about $2 million, in order to, and in a way that would, avoid the provisions of the FTR Act. It is inherent in the manner in which the charges were framed, and the sub-section under which they were brought, that the Crown was alleging that the appellants were reckless as to the fact that there was a risk that the money deposited would be used in the commission of, or to facilitate, the commission of that crime or in the commission of a tax evasion offence. Bearing in mind the provisions of sub-ss 5.4(2) and (4), it was open to the Crown to prove recklessness either by proving that the appellants were aware that there was a substantial risk that the money would be used in that way, and that, having regard to the circumstances known to them, it was unjustifiable to take that risk OR that they either intended or knew that the money would be used in that way. Although it was not necessary that the Crown prove that the appellants (or either of them) themselves physically dealt with the money, it was admitted by them that, in receiving the money from Z, they did so. (As indicated above, the Crown case was, in fact, that the appellants both knew and intended that the money would be used in that way.)
29 The manner in which the only ground of appeal is framed may not clearly expose its intent. Put simply, it is that it is not open to the Crown to charge, or prove, a conspiracy to commit a crime of which the fault element (or mental state) is recklessness.
30 The appellants' submissions included the following:
"4.4 … It is contended that a conspiracy under the Code is only committed where the offence the subject of the confederates agreement is intentionally, rather than recklessly, in contemplation and hence intention is the fault element in relation to the physical element of the offence of conspiracy.