Resolution of Competing Submissions
44Before moving to an assessment and determination of the issues raised by the Applicants, it is of passing interest that a prosecution for a conspiracy of long duration, interrupted by statutory amendment, has occurred before this case. In R v Ronen [2006] NSWCCA 123; 161 A Crim R 30, three persons were charged with two offences of conspiracy to defraud the Commonwealth of tax revenue. The Crown alleged that a single conspiracy was on foot from 1991 to 2001. As Howie J observed at 303 [4], there were two counts on the indictment, reflecting the fact that during the period of the conspiracy, there was a change in September 1995 to the statutory provisions prescribing the offences charged. The Appellants in that case were convicted on both counts. It does not seem that any argument had been advanced in R v Ronen that a fresh agreement, formed within the period of the second offence charged on the indictment, needed to be proved by the Crown. Of course, that case predated the commencement of relevant provisions of the Code. However, the scenario was the same as described by Simpson J in the passage cited at [32] above - the conspiracy charged was a single, continuing offence with two separate counts required as the relevant conduct was criminalised by two different legislative regimes.
45It is useful to consider the issues posed for determination by these applications using the categories of suggested error advanced by the Applicants at [37] above, and additional areas touched upon in submissions.
Alleged Error Concerning the Actus Reus of Conspiracy at Common Law
46Simpson J accepted that the essence of the offence of conspiracy at common law is agreement and that it is well established that the crime of conspiracy is complete when the agreement is made. Her Honour observed that, notwithstanding that the crime is complete when the agreement is made, it is equally well established that conspiracy is a continuing offence.
47Thus far, there is no dispute between the parties as to her Honour's description of the common law offence of conspiracy.
48Her Honour also observed, uncontroversially, that whilst 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 1914 (Cth) , constitute the actus reus of conspiracy.
49Her Honour observed (at [30]) that the actus reus of conspiracy was the participation in the agreement. Her Honour stated (at [35]) that the offence of conspiracy depends upon the existence of, or participation in, an agreement, and not the precise timing of the formation of the agreement. Her Honour drew an analogy with the circumstances in Director of Public Prosecutions v Doot in reaching this view (at [36]-[38]).
50It is necessary to say something more concerning the propositions that, firstly, the crime of conspiracy at common law is complete when the agreement is made and, secondly, that conspiracy is a continuing offence.
51The decision of the House of Lords in Director of Public Prosecutions v Doot was called in aid by this Court in R v G, F, S and W [1974] 1 NSWLR 31 to explain the concept of conspiracy as a continuing offence, and the application of that concept in a temporal respect, and not merely concerning geographical jurisdiction. In that case, the trial Judge had held that, as an unlawful agreement had been made by a certain date, the crime of conspiracy had, by then, been committed. The Court of Criminal Appeal (Kerr CJ, McClemens CJ at CL and Lee J) disagreed. Their Honours said at 43B (emphasis added):
"But, the decision of the House of Lords in Director of Public Prosecutions v. Doot makes it clear that it is not correct to consider the crime of conspiracy as nothing more than the making of the initial unlawful agreement. The decision makes it clear that, although the essence or gist of conspiracy is the unlawful agreement made by the conspirators, and not the acts done under it (which individually may or may not be criminal), conspiracy as a crime is committed wherever and whenever it is shown that the agreement, the unlawful concert, exists between the conspirators ."
52Their Honours then referred to passages in the judgments of Viscount Dilhorne and Lord Pearson in Director of Public Prosecutions v Doot , and then stated at 44D-F (emphasis added):
"From these statements we deduce the conclusion earlier referred to, that the crime of conspiracy is a crime not limited to the making of the unlawful agreement, but committed whilst ever the unlawful agreement is in existence. The agreement may exist but for a moment - because the conspirators are detected immediately after they make their agreement - or it may exist for years. Whilst ever the unlawful purpose or concert is shown to be in existence between the conspirators, the conspirators are conspiring and the crime of conspiracy is being committed. It is a crime of duration, a continuing offence . So viewed the overt acts proved will individually or collectively, of course, be indicative of the formation earlier of the unlawful purpose, but their full role is to establish the existence of the unlawful purpose from that earlier point in time to whenever the conspiracy was discovered. That will be the crime of conspiracy charged in the indictment. Conspiracy is invariably charged as having been committed between certain dates - it is the conspiring, the continuation in existence of the unlawful purpose, between the dates alleged which is the crime charged, and which is the matter to be proved."
53The characterisation of conspiracy as a crime of duration, a continuing offence which lasts as long as it is being performed, has been emphasised: Woss v Jacobsen (1985) 11 FCR 243 at 250; R v Masters (1992) 26 NSWLR 450 at 458F.
54Support for the Crown submission in the present case may also be found in the judgment of Fenton-Atkinson J in R v Simmonds [1969] 1 QB 685 at 696, cited with approval by Hope JA in Saffron v R (1988) 17 NSWLR 395 at 422. Fenton-Atkinson J said:
"This argument is based on a complete fallacy as to the nature of conspiracy. Of course, if two men agree on a particular day to embark on a course of criminal conduct over a period of months, the offence of conspiracy is committed at the moment of agreement. But they remain conspirators and their conspiracy continues until either the criminal purpose has been achieved or their agreement has been brought to an end.
The offence of conspiracy has clearly over the centuries been committed by being a member of what in the old books is referred to as a 'confederacy' - that is to say, being one of two or more persons acting or planning to act in concert under some agreement - be it express or implied - in pursuit of a criminal design.
Furthermore, it is well-established law that if A and B conspire together to carry on, for example, a course of fraudulent trading, C may join in (or in the old phraseology 'adhere to') the conspiracy at a later date and then A may drop out and be replaced by D. But it all remains a single conspiracy as long as all of them are for the period of their participation acting in combination to achieve the same criminal objective."
55In Savvas v The Queen [1995] HCA 29; 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
"It is commonplace that the ingredients of the offence of conspiracy are complete once there is agreement between two or more persons [Gerakiteys v R (1984) 153 CLR 317 at 327, 334; 51 ALR 417; Kamara v Director o f Public Prosecutions [1974] AC 104 at 119] . But it is equally plain that the conspiracy does not end with the making of the agreement. 'It will continue so long as there are two or more parties to it intending to carry out the design' [Director of Public Prosecutions v Doot [1973] AC 807 at 823. See also R v G, F, S and W [1974] 1 NSWLR 31 at 43-4] . "
56In Truong v The Queen [2004] HCA 10; 223 CLR 122, Gleeson CJ, McHugh and Heydon JJ observed at 143-144 [35]:
"Furthermore, the conspiracy was alleged to have continued in existence, and to have been completed by performance. Although a crime of conspiracy has been committed, and in that sense is complete, once an agreement to commit a crime has been made, conspiracy is a continuing offence. It is an error to think that the crime comes to an end once the agreement has come into existence. That is the error that was rejected by this court in Savvas v R [ (1995) 183 CLR 1; 129 ALR 319]. The point was explained b y Lord Pearson in Director of Public Prosecutions v Doot [[1973] AC 807 at 827] :
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."
57In my view, the analogy drawn by Simpson J in this case by reference to Director of Public Prosecutions v Doot is apt. The fact that the decision in that case concerned geographical jurisdiction is not the point and is no reason to place the decision to one side. Reliance upon the decision, in a temporal sense, to understand the nature of conspiracy as a continuing offence is both appropriate and helpful to the resolution of the issues in the present case. As the cases referred to at [51]-[56] above make clear, other Courts in Australia have utilised the decision in Director of Public Prosecutions v Doot in precisely this way.
58The concept of a continuing offence has been considered in Australia, principally in the context of regulatory offences, including alleged environmental or industrial safety offences. See, for example, in Victoria - R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Limited [1965] VR 615 at 620 and R v Industrial Appeals Court; Ex parte Circle Realty Pty Limited [1980] VR 459 at 461-462, and in New South Wales - CSR Limited v Environment Protection Authority [2000] NSWCCA 373; 110 LGERA 334 at 340-342 [39]-[53]; Environment Protection Authority v Alkem Drums Pty Limited [2000] NSWCCA 416; 121 A Crim R 152 at 154-156 [7]-[16], 161-166 [43]-[79]; Burgess v Kaputar Timbers Pty Limited (1999) 91 IR 378 at 382.
59A passage cited frequently in this State concerning the nature of a continuing offence appears in the judgment of Street CJ in Sloggett v Adams (1953) 70 WN(NSW) 206 at 208 (emphasis added):
"'The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences . The test, it seems to me, is one which was prescribed in Ellis v Ellis [(1896) P 251 at 254] , by Sir Francis Jeune, who said: 'The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue'."
60To my mind, this general description of a continuing offence is helpful in understanding the way in which the offence of conspiracy at common law was said to constitute a continuing offence. Of particular relevance is the statement of Street CJ that continuing offences "are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences" . This is an apt description of a conspiracy and, as it happens, utilises the term "state of affairs" , a phrase to which I will return.
61Further support for her Honour's conclusion may be found in the statement that, in cases of conspiracy, it is not necessary to prove formation of the agreement at some definite time: Nirta v R (1983) 51 ALR 53 at 61. Although a conspiracy may be established by proving an agreement which has never been implemented, it is not necessary in the usual case of conspiracy where a succession of overt acts are relied upon, to establish the date when, or the date before which, the conspiratorial agreement was made: Saffron v R at 419. The prosecution is not bound to define the exact time at which the agreement began or the exact act which marked its inception: Saffron v R at 436-437; R v H Mokbel (Ruling No. 2) [2009] VSC 547 at [17].
62With respect, I agree with the statement of Simpson J at first instance that the offence of conspiracy depends upon the existence of, or participation in an agreement, and not the precise timing of its formation. The Applicants have not demonstrated error in her Honour's conclusions in this respect.
Suggested Error in Application of Statutory Modifications to Common Law of Conspiracy Brought About by s.135.4(9) of the Code
63The Applicants' second argument is that, whatever may have been the position at common law, s.135.4(9) of the Code involves a statutory modification of the common law so that it is essential for the Crown to prove the entry into an agreement within the period covered by the second count, and that there is no evidence whatsoever of the entry into an agreement in that period so that the second count is foredoomed to fail.
64It may be taken that the task of the Court is to interpret the words used by Parliament and not to determine what Parliament intended to say: R v JS at 135 [142].
65The judgments of the High Court of Australia in The Queen v LK observed that the principles relating to conspiracy at common law were relevant to questions arising with respect to offences against s.11.5 of the Code - French CJ at 206 [59] and Gummow, Hayne, Crennan, Kiefel and Bell JJ at 220 [97], 224 [107]. Sections 11.5 and 135.4 of the Code are relevantly indistinguishable, so that these observations should be taken to extend to s.135.4 as well.
66Similar views were expressed by Spigelman CJ (James and Howie JJ agreeing) in R v B at 541-542 [31]-[34].
67The similarities and differences between the offence in s.11.5 of the Code and the common law offence of conspiracy were considered by Howie J (Hislop J agreeing) in R v Ansari [2007] NSWCCA 204; 70 NSWLR 89 at 105-106 [66]:
"Thus the offence of conspiracy under the Code is similar to that at Common Law. Both under the Code and at Common Law two or more persons must mean to enter into an agreement that an offence would be committed by themselves or some other person. The differences between the Code offence and the offence at Common Law are that, firstly, under the Code it is not an offence to enter into an agreement to commit a lawful act by unlawful means and, secondly, it is not an offence under the Code to agree to commit a crime for which the maximum penalty is less than that stated in the section. It should also be noted that under the Code it is not sufficient to support a conviction of a conspiracy offence that there has only been an agreement entered into by the parties: there must also be an overt act committed by at least one person toward the achievement of the object of the agreement."
68These observations of Howie J were not criticised in the decision of the High Court of Australia in Ansari v The Queen [2010] HCA 18; 241 CLR 299.
69The elements of the offence of conspiracy are found relevantly in s.135.4(5) of the Code: The Queen v LK at 205-206 [57], 212 [75], 213 [78], 216-217 [91]. The requirements contained in s.135.4(9) of the Code inform and explain the meaning of "conspires" , but are not elements of the offence for the purposes of Part 2.2 of the Code: The Queen v LK at 205-206 [57], 228 [117], 232 [132]-[133], 233-234 [137], 234-235 [141].
70Although not elements of the offence charged in the second count, it may be taken that it will be necessary for the Crown to prove the matters contained in s.135.4(9) of the Code before each of the Applicants may be found guilty of an offence under that section.
71I accept that the only presently relevant alteration to the common law is that effected by s.135.4(9)(c), which requires proof of the commission of an overt act pursuant to the agreement. As Howie J observed in Ansari v R , this was an intended modification of the common law offence to be incorporated in the Code.
72I do not accept the submission for the Applicants that s.134.5(9)(a) requires the Crown to adduce evidence that a person must have entered into an agreement with one or more other persons on or after 24 May 2001. I agree with the conclusion of Simpson J that what is required is proof of the existence of, or participation in, an agreement and not a requirement that the agreement was formed on or after 24 May 2001. In my view, this construction serves to promote the purpose or object underlying the Code: s.15AA Acts Interpretation Act 1901 (Cth) .
73I agree with Simpson J's conclusion that the physical element for the purpose of s.4.1(1) of the Code is conduct, in the sense of "a state of affairs" : s.4.1(2).
74I agree with Simpson J that the position advanced by the Applicants would lead to a highly artificial and absurd result. As her Honour observed at [40], it would be absurd 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. To construe the provisions of the Code in a way that led to this result would not promote the purpose or object underlying the Code.
75In my view, no error has been demonstrated by the Applicants in her Honour's construction of s.135.4 of the Code.
Suggested Error in Misconstruing Physical Element of a s.135.4(5) Offence as Being Constituted by "A State of Affairs"
76The Applicants submit that her Honour erred in accepting that the physical element in this case could be satisfied by "conduct" in its extended sense of "a state of affairs" . I do not accept this submission.
77As French CJ observed in The Queen v LK at 200 [42], the concept of engaging in conduct which is a state of affairs is not explained in the Code. In R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135, Bell J (Wood CJ at CL and Simpson J agreeing) referred, at 144 [58], to the definition of "conduct" in s.4.1(2) of the Code:
"'Conduct' is defined in s 4.1(2) of the Criminal Code to mean 'an act, an omission to perform an act or a state of affairs'. The latter picks up Brennan J's observation in Teh that having something in possession is not easily seen as an act or omission and is more easily seen as a state of affairs: at 564 (see, too, the discussion of 'status offences', such as being in a prohibited place or condition, in Fisse B, Howard's Criminal Law (Sydney: Law Book Co, 5th ed, 1990), at 12). It is noteworthy that Brennan J in Teh observed that the identification of the prohibited act on the one hand and the circumstances attendant on doing the act on the other was an exercise that gave rise to 'intractable difficulties':"
78Reference has been made to the term "state of affairs" in the Code in The Queen v Tang [2008] HCA 39; 237 CLR 1 at 24-25 [46]-[47] and Muslimin v The Queen [2010] HCA 7; 240 CLR 470 at 479 [16], but not in ways that assist resolution of the present controversy.
79Simpson J concluded (at [39]) that "a state of affairs" includes "the existence (continuing) of an agreement to defraud the Commonwealth" . I accept the Crown submission that an ongoing conspiracy is a state of affairs, and hence conduct, within the meaning of the Code, and that being a party to an ongoing conspiracy is a state of affairs with the same consequence.
80What is necessary to establish an offence under s.135.4(5) of the Code is a physical element which may be conduct, or a result of conduct, or a circumstance in which conduct, or a result of conduct, occurs: s.4.1(1). All of these may be encompassed in a state of affairs.
81This conclusion is consistent with the ordinary meaning of a "state of affairs" . According to the Oxford English Dictionary, "the (or a) state of things or affairs" means "the way in which events or circumstances stand disposed (at a particular time or within a particular sphere)" .
82Further, the term "state of affairs" sits comfortably with the concept of a continuing offence. The statement of Street CJ in Sloggett v Adams , (set out at [59] above) although made in a different context, may be called in aid (at least by analogy), to support the conclusion that a continuing offence (conspiracy) is "committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day" for that offence.
83It is noteworthy that s.135.4(12) of the Code provides that a person cannot be guilty of an offence under the section if, before the commission of an overt act pursuant to the agreement, the person withdrew from the agreement and took all reasonable steps to prevent the doing of the thing. The concept of a continuing offence, which may be terminated by withdrawal, is recognised within the Code concerning conspiracy.
84No error has been demonstrated in Simpson J's conclusion that the physical element of the offence charged in the second count may be established by conduct in the sense of "a state of affairs" .
Suggested Errors Concerning Construction of Transitional Provisions
85The submissions of the parties dealt briefly with the question whether her Honour erred in her construction of the transitional provisions (at [42]-[47]). The matter may be dealt with shortly in this judgment.
86The principal submission of the Applicants in this respect is that her Honour had side stepped the construction of the transitional provisions by concluding that the physical element in the second count may be constituted by conduct in the form of "a state of affairs" .
87Simpson J (at [45]) stressed the omission of "state of affairs" from s.4(2) Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 (Cth) .
88I do not accept the Applicants' submission. For reasons expressed earlier (at [76]-[84] above), her Honour was correct in the conclusion concerning the applicability of the physical element taking the form, in this case, of conduct in the sense of "a state of affairs" .
89In my view, her Honour's analysis and application of the transitional provisions is correct.
A Crown Submission that Her Honour had Erred
90Simpson J (at [49]-[51]) rejected a Crown submission that relied upon the use of the past tense in s.135.4(9)(a) of the Code in order to argue that an agreement predating the introduction of Chapter 7 was sufficient to establish the necessary agreement. Before this Court, the Crown formally submitted that her Honour had erred in this respect.
91I am not persuaded that her Honour erred in the manner contended for by the Crown. Her Honour's reasons are persuasive. I reject the Crown submission on this aspect.