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[2025] ACTCA 23
respondent. The appeal was dismissed. The convictions remained undisturbed. [94]
The Court of Appeal upheld the convictions. It held that the conspiracy offence focused on an agreement to dishonestly obtain a gain from the Commonwealth, not on whether the gain was ultimately realised or whether the conspirators had agreed every step of the plan. The jury could infer the agreement and the alleged secret payment from the evidence taken as a whole. The Crown also described the alleged conspiracy sufficiently clearly in its opening.
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2,267 words · generated 06/10/2026
El-Debel and Kahlon appealed their convictions for conspiracy under s 135.4(1) of the Criminal Code (Cth). They had been jointly tried with the allegation that they agreed with Vilayur to dishonestly obtain a gain from a Commonwealth entity. The appeal concerned convictions only, not the sentences. The Court of Appeal dismissed the appeals. [1], [9]-[15], [94]
1 cited instrument linked from this judgment.
El-Debel worked in the Commonwealth Department of Finance, within the Service Delivery Office, and led a team working on the GovERP project. Kahlon and Vilayur were contractors engaged to assist with the project. They also operated labour-hire companies, New Horizons and Algoram. The Department knew that the contractors operated those businesses. [2]-[5]
When a company submitted a successful candidate, the Department paid the company for the contractor’s work. The company then paid the contractor, retaining a margin. The prosecution alleged that the three men had agreed to influence recruitment in favour of candidates submitted by New Horizons and Algoram, and that some of the companies’ margins would be paid to El-Debel. It did not allege that the Department suffered a loss. Rather, the alleged dishonest gain was that the companies’ proceeds would be shared with El-Debel, who was involved in the recruitment process. [5]-[7]
The Crown relied on circumstantial evidence, including spreadsheets, intercepted calls, financial records, procurement documents and evidence about El-Debel’s involvement in candidate interviews. The call evidence included references to a “brother’s cut” or “bai’s cut”, and to money being given to “Alex” or “brother”. The Crown argued that, assessed together, these references and the other evidence supported an inference that El-Debel would receive part of the margins. [37]-[48]
The appellants argued that the evidence did not establish the agreement, dishonesty, gain or overt acts. Among other matters, they said their aim was to secure qualified candidates for a pressured project, the recruitment process remained merit-based, and there was no adequate connection between any money and misconduct. [49]-[55] The Court rejected the appeal after independently considering the evidence and the statutory framework.
The Court first clarified the structure of the offence. Section 135.4(1) criminalises conspiring with another person with the intention of dishonestly obtaining a gain from a Commonwealth entity. Section 135.4(9) adds general requirements: an agreement, the relevant intention of the accused and at least one other party, and an overt act pursuant to the agreement. [16], [18]
The Court’s statutory interpretation was central. It held that the object of the conspiracy under s 135.4(1) is obtaining a gain from a Commonwealth entity. The prosecution does not have to prove that the conspirators agreed on particular steps or methods for achieving that object. The means are not a separate element of this offence, although an overt act must still be proved under s 135.4(9)(c). [29]-[34] In the Court’s words, “it is the agreement to obtain a gain from the Commonwealth which must be dishonest”. [33]
That distinction answered several of the appellants’ arguments. They said the Crown had not identified “causative conduct”, but the Court reasoned that the offence was complete in its essential character through the agreement and intention, together with the statutory overt-act requirement. It was unnecessary to prove that a particular act had in fact caused the gain. [85]-[86] The Crown’s case was that the companies would obtain Department contracts by having their candidates selected, and that those Department payments were an integral, not remote, part of the alleged arrangement. [75]-[79]
The Court also rejected the argument that a gain could not be attributed to the appellants because the money was paid to the companies. New Horizons and Algoram received the payments; Kahlon and Vilayur owned the companies and could draw on their funds. The alleged payment of part of the margins to El-Debel was also capable of being a gain to him. The jury had been directed that it could not convict unless satisfied that a portion of the margins would be paid to El-Debel. [76]-[78]
Dishonesty was assessed by reference to the alleged agreement and the Code’s definition: the conduct had to be dishonest according to ordinary people’s standards, and the accused had to know it was dishonest by those standards. [19], [66] The evidence of a secret commission for a public servant involved in recruitment was capable of supporting that finding. The Court held that it did not matter that the appellants might also have wanted qualified candidates. A mixed purpose did not necessarily prevent the jury from finding the agreement dishonest. The jury could reject the claim that the only purpose was proper recruitment, particularly because that purpose did not explain why El-Debel would receive a share of the margins. [81]-[83]
The agreement itself did not have to be proved by a witness who saw or heard it being made. The jury had been instructed that an agreement could be implied from conduct, and the Court considered the alleged conduct and surrounding evidence capable of supporting the inference. [72]-[74] Submitting candidates was also capable of being an overt act in furtherance of the alleged agreement. [84]
Finally, the prosecution’s opening adequately particularised the case. It identified the alleged participants, the object of influencing the procurement system in favour of candidates from the two companies, the alleged sharing of proceeds, and the intended gain. The Crown did not have to provide further particulars. [91]-[93]
The judgment explains that s 135.4(1) emerged from recommendations by the Model Criminal Code Officers Committee. The Committee considered retaining conspiracy to defraud and expanding the offence to cover an intention to obtain a gain, rather than only an intention to cause a loss. It recommended including gain after considering arguments on both sides. [21]-[24]
The enacted provision did not adopt the Committee’s proposed formulation exactly. In particular, the Court noted that Parliament chose the words “with the intention of dishonestly obtaining a gain”, rather than requiring that a person “do something dishonestly”. The Court treated that textual choice as important. It declined to import a requirement that the parties agree to particular acts which themselves are intended to cause the gain and are dishonest. [25], [31]-[34]
The Court also explained that s 135.4(1) deliberately differs from common-law conspiracy to defraud and earlier Commonwealth fraud offences. It does not require an intention to cause a loss or to prejudice existing legal rights or interests. The Court therefore said that cases about the meaning of “defraud” at common law or under earlier statutes did not guide the scope of this statutory offence. [28]
The decision applies that construction to a recruitment-related alleged conspiracy. It makes clear that, on the Court’s reading, a gain may be intended through contracts and payments to companies, even where the prosecution does not allege a loss to the Commonwealth. It also clarifies that an intended gain need not be certain to occur: the relevant question is whether the conspirators intended to obtain it. [75]-[79]
This is a description of the law as the Court construed and applied it in this judgment. The supplied reasons do not identify a subsequent legislative amendment or provide a full account of how the provision has been treated in later decisions.
At [33], the Court said: “it is the agreement to obtain a gain from the Commonwealth which must be dishonest.” In plain English, the prosecution did not have to show that the conspirators agreed on every dishonest method. It had to prove that their agreement’s object, obtaining the gain, was dishonest.
At [72], the Court rejected the idea that someone had to testify to witnessing the agreement. The agreement could be implied from conduct. In a circumstantial case, the alleged participants’ actions and communications could support an inference that they had agreed.
At [77], the Court said the Department’s payment was not remote from the alleged arrangement. The alleged plan depended on New Horizons and Algoram obtaining contracts following selection of their candidates. The resulting payments were part of the alleged intended gain.
At [79], the Court described the offence as “forward looking and focussed on the parties’ intent”. It added that an intention to obtain a gain did not require certainty that the gain would be obtained. In plain English, a plan could satisfy the intention element even if success was not guaranteed.
At [82], the Court addressed mixed motives. It said that one dishonest motivation could be sufficient to support a finding that the entire agreement was dishonest, while emphasising that each case turns on its facts. That statement did not mean that every agreement with a questionable feature is necessarily dishonest. The Court’s application depended on the alleged secret payment and the recruitment arrangement in this case.
At [85], the Court said the Crown did not need to prove that a particular act caused the gain. The focus was on the agreement and intention, subject to the separate statutory overt-act requirement.
The judgment is most directly relevant to charges under s 135.4(1) where the alleged agreement is to obtain money, property or another statutory “gain” from a Commonwealth entity, and the dispute concerns whether the prosecution must prove particular agreed methods. The Court’s answer is that proof of agreement on specific means is not required by the offence’s text, but the prosecution must prove the statutory agreement, intention and overt act. [16], [18], [29]-[34]
It is also relevant where the alleged gain flows through a company or other intermediary. Here, the companies received Department payments under contracts, while the prosecution alleged benefits to their owners and a separate payment to a public servant. The Court treated those alleged flows as capable of constituting gains for the purposes of the charge. [76]-[78]
The decision may be pertinent where the evidence of agreement is circumstantial and no witness directly observed the agreement. The Court accepted that agreement could be inferred from conduct and considered the totality of the evidence, including intercepted communications and records. [72]-[74]
The dishonesty reasoning may be relevant where an accused advances a legitimate purpose alongside an alleged dishonest one. The Court said that a mixed purpose does not automatically prevent a finding that an agreement was dishonest. The alleged secret commission was important to its reasoning in this case. [81]-[83]
The decision should not be read as deciding every issue about other limbs of s 135.4, such as the separate offences concerning loss or influencing a Commonwealth public official. Nor did it decide whether any particular procurement process in another case is corrupt or dishonest. Its conclusions concern the statutory provision and evidence before the Court.
The supplied judgment is dated 16 July 2025 and does not provide a record of decisions after that date. It is therefore not possible, from the supplied material, to say how later courts have treated El-Debel and Kahlon.
The reasons do identify authorities the Court used when deciding the appeals. For unreasonable-verdict review, it applied the principles set out in Marshall v The King and referred to High Court authorities including M v R, Libke, Pell, Dansie and Hillier. [63] It also cited R v ZT on the adversarial process and the parties’ role in identifying the evidence relevant to the appeal. [64]
On statutory construction, the Court referred to R v LK for the relationship between s 135.4 and the common law, but held that the offence’s text and history demonstrated a deliberate statutory departure from common-law and earlier statutory fraud concepts. [28] It discussed R v Aston in explaining the difference between the object of a conspiracy and the steps used to implement it. [33] On particulars, it applied the requirement stated in R v Mok. [91]-[93]
Those citations show the legal sources relied on in this appeal. They do not establish subsequent treatment of this judgment by other courts.
The judgment resolves the appellants’ grounds on the evidence and statutory construction presented, but it also marks limits. The Court did not decide whether the jury had a relevant advantage in hearing the intercepted calls, because it did not hold a reasonable doubt and therefore did not need to resolve that question. [87]-[89]
The Court’s mixed-purpose observation is expressly fact-sensitive. It does not prescribe how the dishonesty question must be resolved in every case involving both a legitimate objective and an alleged dishonest objective. The significance of the alleged payment, the participants’ knowledge, the nature of the agreement and the evidence in the particular case remain matters for assessment. [82]-[83]
The judgment also did not decide whether a verbal exchange, by itself, could amount to an overt act. The issue did not arise because the submission of candidates was capable of constituting an overt act on the Crown case. [84] Nor did the Court decide whether the appellants breached procurement rules: the appeal was resolved by reference to the elements of s 135.4(1), the evidence and the grounds pursued. [51], [65]-[86]
For practising readers, the core analytical questions raised by the reasons are therefore: what was the alleged object of the agreement; what evidence supports the inference that each accused intentionally joined it; what gain was intended from a Commonwealth entity; why was that intended gain alleged to be dishonest; and what act is relied on under s 135.4(9)(c)? Those are organising questions drawn from the judgment, not conclusions about any other case.
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: El-Debel v The King; Kahlon v The King Citation: [2025] ACTCA 23 Hearing Date: 14 August 2023 Decision Date: 16 July 2025 Before: McCallum CJ, Baker and Bromwich JJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal against Conviction – conspiracy with intention to dishonestly obtain a gain from a Commonwealth entity – whether verdicts unreasonable – whether open to the jury to conclude that the appellants had entered into an agreement to dishonestly influence the procurement system for the selection of candidates to a government department – where evidence that the appellants would receive a portion of the margin received by labour hire companies – history and proper construction of s 135.4 of the Criminal Code (Cth) – whether the prosecution failed to properly particularise its case – appeal dismissed Legislation Cited: Crimes Act 1914 (Cth), s 86A Criminal Code (Cth), ss 130.1, 135.4 Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth) Marshall v The King [2023] ACTCA 11 Cases Cited: Peters v The Queen [1998] HCA 7; 192 CLR 493 R v Aston (1987) 44 SASR 436 R v El-Debel (No 6) [2022] ACTSC 156 R v El-Debel (No 7) [2022] ACTSC 313 R v JS [2007] NSWCCA 272; 230 FLR 276 R v LK [2010] HCA 17; 241 CLR 17 R v Mok (1987) 27 A Crim R 438 at 441 R v Vilayur (No 3) [2024] ACTSC 132 R v Vilayur [2022] ACTSC 110 R v ZT [2025] HCA 9; 99 ALJR 676 Texts Cited: Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth) Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code (Report, May 1997) Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code (Report, December 1995) Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth) Parties: Abdul Aziz El-Debel (First Appellant) Raminder Kahlon (Second Appellant) The King (Respondent) Representation: Counsel C Newman (First Appellant) M Kalyk and H Thomas-Dubler (First Appellant) A Haban-Beer and S Young (Respondent) Solicitors Kamy Saeedi Law (First Appellant) Murphy’s Lawyers (Second Appellant) Director of Public Prosecutions (Cth) (Respondent) File Numbers: ACTCA 64 of 2022; ACTCA 16 of 2023 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 7 July 2021 Case Title: R v Khalon; R v El-Debel Court File Number(s): SCC 96 of 2021; SCC 97 of 2021 THE COURT: Overview
Abdul Aziz El-Debel (the first appellant) and Raminder Singh Kahlon (the second appellant) were jointly charged with one count each of conspiring with one another and another man, Gopalakrishnan Surinaya Vilayur, with the intention of dishonestly obtaining a gain from a Commonwealth entity, contrary to s 135.4(1) of the Criminal Code (Cth).
Mr El-Debel was a public servant employed by the Commonwealth Department of Finance (the Department), working within the Service Delivery Office (SDO). The SDO provided ‘shared IT services’ to other federal government departments. Some of those services involved the provision of enterprise resource planning software. In August 2018, the SDO began developing a prototype whole of government resource planning software called “GovERP” (the Project). Mr El-Debel’s role was to lead a team in this project. Mr Kahlon and Mr Vilayur were engaged as contractors of the Department to assist with this project.
During the time that they were engaged by the Department, Mr Kahlon and Mr Vilayur each operated labour hire companies, New Horizons Business Solutions Pty Ltd (New Horizons) and Algoram Pty Ltd (Algoram) respectively. The operation by Mr Kahlon and Mr Vilayur of these companies was known to the Department.
Due to the technical nature of the Project, from time to time the Department would approach the market seeking the engagement of suitably skilled IT and IT-related professionals to perform certain roles. New Horizons and Algoram would submit candidates to the Department on these occasions. The candidates submitted by these companies would on occasion be hired by the Department following a recruitment process, which involved an assessment of the quality of the candidates by a panel of decision-makers.
If a candidate was successful, the Department would enter into a contract with the submitting company to engage the candidate. The submitting company would receive the entirety of the funds paid by the Department pursuant to work performed by the contractor but, in effect, would pay to the contractor the amount received from the Department less a recruitment fee, referred to as a “margin”. New Horizons and Algoram received money from the Department in this way each time one of their submitted candidates was successfully engaged by the Department.
The essence of the prosecution case was that Mr El-Debel, Mr Vilayur and Mr Kahlon entered into an agreement where Mr El Debel would dishonestly provide Mr Kahlon and Mr Vilayur with information about upcoming procurements; and further, that Mr El-Debel would provide advice to the relevant procurement panel with the object of influencing the recruitment process in favour of candidates put forward by New Horizons and Algoram. It was also alleged that it was agreed that Mr El-Debel and Mr Vilayur would organise for these candidates to have advance knowledge of the procurement panel process to which they would be subjected, so as to give such candidates a dishonest advantage over other candidates. Finally, it was also agreed that Mr El-Debel would be paid for his role in this process.
The prosecution did not allege that the appellants’ actions had caused a relevant loss to the Department. Rather, the prosecution contended that the gain to New Horizons and Algoram was dishonest because it was to be shared with Mr El-Debel.
Initially, Mr El-Debel, Mr Kahlon and Mr Vilayur were each charged on a single indictment. All three entered pleas of not guilty. On 20 May 2022, Mr Vilayur’s criminal trial was severed from that of Mr El-Debel and Mr Kahlon: R v Vilayur [2022] ACTSC 110. Mr Vilayur subsequently pleaded guilty and was sentenced on 2 May 2024: R v Vilayur (No 3) [2024] ACTSC 132.
Mr El-Debel and Mr Kahlon were jointly tried before a jury presided over by Elkaim J (the trial judge) which commenced on 31 May 2022. On 28 June 2022, at the close of the Crown case, both appellants made an no case application. The trial judge refused that application: R v El-Debel (No 6) [2022] ACTSC 156. On 7 July 2022, a jury of eleven found both appellants guilty of the offence charged.
On 15 November 2022, the trial judge sentenced each appellant to a period of imprisonment of three years and six months, to be served by way of an Intensive Correction Order: R v El-Debel (No 7) [2022] ACTSC 313.
The appellants each appeal against their convictions, but not the sentences imposed upon them.
At the oral hearing of the appeals (by convenience to be referred to in the singular in these reasons) both appellants ultimately pressed a portion of their respective notices of appeal amounting to the same grounds. Given that commonality of approach, it is convenient to describe those common grounds of appeal by reference to grounds 1 and 2(a) in Mr Kahlon’s Further Amended Notice of Appeal as follows: (1) The verdict is unreasonable or unable to be supported by the evidence, the trial judge erred in finding there was a case to answer or both; (2) (a) The failure by the prosecution to properly particularise its case in opening, closing or both meant that the verdict was not open or alternatively amounted to a miscarriage of justice.
In oral argument, the appellants also conceded that their contention that the trial judge erroneously found that there was a case to answer did not, in the present case, relevantly add to the unreasonableness ground. Specifically, the appellants conceded that if they did not establish that the verdicts were unreasonable, it would also follow that it could not be established that the trial judge erred in finding that there was a case to answer.
The appellants required an extension of time to file their appeal. That leave was not opposed by the Crown, and leave to appeal out of time was granted at the oral hearing.
For the reasons outlined below, the appellants have not established either that the jury’s verdicts were unreasonable, or that there was anything inadequate in the particulars provided by the Crown. Accordingly, the appeals must be dismissed.
Section 135.4 of the Criminal Code
Section 135.4(1) of the Criminal Code provides as follows: Obtaining a gain (1) A person commits an offence if: (a) the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and (b) the third person is a Commonwealth entity. Penalty: Imprisonment for 10 years. (2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew that the third person was a Commonwealth entity.
In addition to the offence of conspiring with another person with the intention of dishonestly obtaining a gain from the Commonwealth, s 135.4 of the Criminal Code also creates offences of: (1) conspiring with another person with the intention of dishonestly causing a loss to a Commonwealth entity (s 135.4(3)); (2) conspiring with another person with the intention of dishonestly causing a loss to a Commonwealth entity, and the person knows or believes that the loss will occur or that there is a substantial risk of the loss occurring (s 135.4(5)); and (3) conspiring with another person with the intention of dishonestly influencing a Commonwealth public official in the exercise of the official’s duties as a Commonwealth public official (s 135.4(7)).
Sections 135.4(9) and (10) contain the following prescriptions, which apply to all offences created by s 135.4: General provisions (9) For a person to be guilty of an offence against this section: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. (10) A person may be found guilty of an offence against this section even if: (a) obtaining the gain, causing the loss, causing the risk of loss, or influencing the Commonwealth public official, as the case may be, is impossible; or (b) the only other party to the agreement is a body corporate; or (c) each other party to the agreement is a person who is not criminally responsible; or (d) subject to subsection (11), all other parties to the agreement have been acquitted of the offence.
There are a number of important definitions contained in div 130 of the Criminal Code which apply to the s 135.4 offence: (i) The term “dishonest” is defined to mean “(a) dishonest according to the standards of ordinary people; and (b) known by the defendant to be dishonest according to the standards of ordinary people”; (ii) The term “obtaining” is defined to include “obtaining for another person; and inducing a third person to do something that results in another person obtaining”; (iii) The term “gain” is defined to mean “(a) a gain in property, whether temporary or permanent; or (b) a gain by way of supply of services; and includes keeping what one has”; and (iv) The term “property” is defined to include, inter alia, “personal property” and “money”. History of s 135.4(1) of the Criminal Code
The Trial
The prosecution case
The prosecution called oral evidence from the following witnesses: (i) Lucelle Veneros, the Acting Deputy Secretary of the Shared Services Transformation Group (SSTG); (ii) Stuart Munro, an executive in the SDO. Mr Munro reported to Ms Veneros; (iii) Rishi Abrol, an individual employed by SAP, but who worked with the Department to provide SAP expertise; (iv) Martin O’Dea, Procurement Advisor to the Department (v) Ivan Spudic, Chair of the Evaluation Committee and Director of the Hub Team providing enterprise resource planning solutions within the Department (vi) Caterina Costanza, Member of the Evaluation Committee and Assistant Director of the Hub Team
The Crown case was a circumstantial case, which relied upon the combined effect of the following evidence.
First, spreadsheets found on Mr Kahlon’s computer and seized pursuant to a search warrant. The prosecution submitted that these spreadsheets demonstrated that “all of the income which was derived by New Horizons … was obtained from the funds which flowed from the engagement of the contractors [to] the Department of Finance”.
The spreadsheet contained entries for “Profit Representative 1”; “Profit representative 2” and “Other Share (Cash)”. The Crown submitted that these entries were consistent with a conversation between Mr Vilayur and Mr Kahlon on 1 June 2020, which referred to the “evolution of the split” of New Horizons’ profits between them and, on the Crown case, Mr El-Debel. The Crown also relied on the fact that the entry “Other Share (Cash)” was equal to $5 per hour worked by every contractor on the spreadsheet. The Crown submitted that this was the “brother’s cut” which was to be paid to Mr El-Debel. The Crown contended that the jury would reject Mr Kahlon’s explanation that the “Other Share (Cash)” was an amount for “working capital” which was not paid to anyone.
Second, evidence that on 11 October 2019, Mr El-Debel made arrangements by text message to travel to Sydney and back to pick up something which Mr El-Debel described to Mr Kahlon in an intercepted call as “three four”. In that call, Mr Kahlon replied “thirty four huh?” and Mr El-Debel told Mr Kahlon that he would check when he returned to Canberra if that was correct or not. The Crown submitted that the conversation concerned cash, which Mr El-Debel would count on his return to Canberra.
With respect to this evidence, the Crown also relied on an intercepted call between Mr Vilayur and Mr Kahlon on 16 October 2019, in which Mr Kahlon asked “do you want 100k or more”, before adding “our other friend is fixed”. Different channels of the recording which separately captured Mr Vilayur and Mr Kahlon’s voices were played to the jury. The Crown contended that the jury would find that Mr Kahlon said the start of the word “Alex”, while Mr Vilayur talked over him, before changing the use of the name “Alex” to “our other friend”. (Mr El-Debel’s preferred first name is Alex).
The appellants’ cases
The central submission advanced by the appellants at trial was that the evidence relied on by the prosecution was too uncertain to prove the elements of the offences beyond reasonable doubt.
First, the appellants submitted that the evidence revealed that there was a genuine frustration held by the appellants that candidates of poor quality were being employed in relation to the Project. It was submitted that this frustration arose in the context of the Project being under pressure, under-resourced, and time constrained. In these circumstances, the appellants’ motivation in directly sourcing candidates rather than engaging in the standard consulting process was to quickly procure the most suitably qualified candidates to deliver on the Project. These intentions were made known by the appellants to their superiors. In these circumstances, it was submitted that the prosecution failed to prove that the appellants were knowingly dishonest.
Second, the appellants contended that there was no evidence that the appellants had breached the Commonwealth Procurement Rules. Direct sourcing is a legitimate method of procuring resources under those rules.
Third, the appellants contended that the prosecution’s submission that the recruitment process was from time to time corrupted was not supported by the evidence; to the contrary, they submitted that the evidence established that the recruitment process was entirely merits-based. In particular, the appellants submitted that the following evidence demonstrated the integrity of this process: (1) Mr El-Debel and Mr Vilayur concluded that Mr Vilayur would not sit on a recruitment panel if Algoram was submitting a candidate; (2) Mr El-Debel withdrew himself from a panel, filled out a conflict of interest form and disclosed: “As I’m aware a number of the firms have a principal working for me, I’ve excluded myself from the committee”; (3) Mr Vilayur would on occasion give candidates submitted by New Horizons a lower assessment than other members of the panel, indicating that he was honest, fair and impartial in his assessment; (4) The majority of the candidates initially engaged through New Horizons and Algoram were re-engaged by the Department after the appellants and Mr Vilayur left the Department in June 2020.
The appellants submitted that, as the recruitment process was fair and merits-based, it cannot be said that the appellants intended to obtain a benefit to which they would otherwise not be lawfully entitled.
Fourth, the appellants contended the evidence did not establish any connection between any money received by either the appellants or Mr Vilayur, and any act of misconduct.
Fifth, the appellants submitted that the prosecution’s submission that “bai” is exclusively used to refer to Mr El-Debel should not be accepted. A proper reading of the use of “bai” (which translates to “brother” in Hindi) in the intercepted phone calls is that the term may refer to multiple people, depending on its context.
The trial judge’s summing up
In his summing up, the trial judge directed the jury that they must be satisfied of the following four elements “and then one more” beyond reasonable doubt: Firstly, the two accused conspired with each other and Mr Vilayurs. This means they were intentionally part of an agreement with each other. The agreement does not have to be in writing and it does not have to be explicitly stated. The agreement can be expressed by words or implied by conduct, but the fact of the agreement must be proved beyond reasonable doubt. Secondly, when the accused participated in the agreement they must have had the intention of dishonestly obtaining a gain from the Commonwealth. This means that they intended that New Horizons or Algoram would dishonestly receive money from the Commonwealth and they would each receive a share of that money. Thirdly, the agreement must not have been hypothetical. One or more of the conspirators must have done something that was part of the object of the agreement. Fourthly, at least one of the three alleged conspirators must have committed an overt act pursuant to the agreement. In other words, one of them must have carried out a step to further the agreement. So all of those four things must be proved beyond reasonable doubt, but there’s one other thing that has to be proved beyond reasonable doubt. That is you must be satisfied beyond reasonable doubt that Mr Vilayurs, Mr Kahlon and Mr El-Debel agreed that pursuant to the agreement between them, a portion of the margins received by New Horizons and/ or Algoram would be paid to Mr El-Debel.
The trial judge then expanded upon these directions, first, by explaining the alleged agreement as follows: The purpose of the agreement was to influence the procurement system for the selection of candidates so that the candidates put forward by New Horizons and Algoram would be successful. Once this occurred, according to the Crown, the Department of Finance would pay the companies for the services of the successful candidates. The companies would then pay the candidates their, in effect, wages, leaving a margin which would remain in the companies. You must be satisfied beyond reasonable doubt that there was an agreement to influence the procurement process with the intention of dishonestly obtaining the margins which would flow from that influence…
The trial judge noted that the Crown case concerning the agreement was circumstantial in nature, and that the prosecution sought to rely on the intercepted calls, together with some of the financial documents that had been tendered to show that each of the accused “knew what was proposed as the objective of the agreement and … intended to carry that objective into effect”.
As to the element of dishonesty, the trial judge observed that the Crown case was that “the intention of the agreement was to dishonestly obtain a gain from the Department of Finance”, noting that the “gain is the margin that I’ve referred to”, and that the Crown contended that “the dishonesty arose from the fact that the selection committees were influenced, sometimes even included Mr Vilayur or Mr El-Debel”. His Honour also noted that the Crown invited the jury to find that “it was dishonest to hide from the Department the fact that the margins were being shared between New Horizons and Algoram when as far as the Department was concerned these were two separate companies independently providing separate candidates”. His Honour then directed the jury that: … the test for dishonesty has two parts. First the conduct must be dishonest according to the standards of ordinary people. So, it’s a matter for you to reach a conclusion about that. Secondly, you must be satisfied beyond reasonable doubt that the two accused knew that their conduct was dishonest. That is, that Mr Kahlon and Mr El-Debel knew their conduct was dishonest according to the standards of ordinary people. Now that is, in a way, like saying you must be satisfied that the accused neither had nor believed that they had a right to the proceeds paid by the Department of Finance, another way of saying the same thing. That they knew it was dishonest.
Ground 1: The verdict is unreasonable or unable to be supported by the evidence, the trial judge erred in finding there was no case to answer or both. Applicable principles
The principles to be applied in determining an unreasonable verdict ground are settled. They were succinctly articulated by this Court in Marshall v The King [2023] ACTCA 11 at [145] – [146]: The question is whether an independent examination of the evidence establishes that it was open to the jury to be satisfied of the guilt of the appellant beyond reasonable doubt: M v R [1994] HCA 63; (1994) 181 CLR 487 at 492 – 493 , 494 – 495 (M v R); Baden-Clay at [65] – [66]. In conducting that examination, regard must be had to the advantage the jury had in seeing and hearing the witnesses. Finding that a verdict is unreasonable requires that the appellate court be satisfied that the jury must, as opposed to might, have entertained a reasonable doubt as to the accused’s guilt: Libke v R [2007] HCA 30; (2007) 230 CLR 559 at [113]; Pell v R [2020] HCA 12; (2020) 94 ALJR 394 at [37] – [39]. The principles were recently summarised in Dansie v R [2022] HCA 25; (2022) 96 ALJR 728 at [7]–[15], accepting that M v R represents the correct approach. In applying that test, it was said that the court is to determine for itself whether the evidence was sufficient in nature and quality to eliminate any reasonable doubt that the accused is guilty of the offence. In answering that question, the court must take into account that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and that it has had the benefit of seeing and hearing the witnesses. However, it is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appeal court that the court may conclude that no relevant miscarriage of justice has occurred. It is important to remember, as observed in Hillier v R [2007] HCA 13; (2007) 228 CLR 618 at [48], that “neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal”.
The undertaking of this “‘independent assessment’ of the sufficiency and quality of the ‘whole of the evidence’” occurs within the adversarial process of the appeal: R v ZT [2025] HCA 9; 99 ALJR 676 at [11]. As the High Court recently emphasised in ZT at [11] – [12]: … it is for the parties to identify the evidence that the appellate court must review and assess and the features of that evidence that support their respective cases on appeal. The appellate court does not determine the grounds of appeal by simply reconsidering the parties' respective cases at the trial.… it is for the parties to identify and address the aspects of the evidence adduced at the trial that warrant the conclusion that the verdict was either unreasonable or not. The particulars of the unreasonable verdict ground of appeal
The appellants allege that there were seven core deficiencies in the evidence, by reference to the following particulars: (1) The Crown did not establish (or even identify) any “causative conduct” engaged in by the appellants; (2) Any gain that was obtained by the appellants was obtained by NHBS or Algoram, rather than from the Department; (3) Assuming that any gain was the margin retained by NHBS and Algoram after paying the relevant contractors, any gain was not caused by any dishonest conduct, but rather should be characterised as the payment of money pursuant to lawful commercial contracts; (4) The Crown could not demonstrate that the appellants’ actions were dishonest, because the purpose of the appellants’ actions was to ensure “the Department [had] the best candidates”, and to avoid “the consequential losses if sub-standard resources [were] engaged”; (5) The Crown failed to demonstrate that the conduct engaged in by the appellants was dishonest; (6) The Crown failed to establish the agreement that was alleged; (7) The Crown failed to establish that any “overt acts” were committed pursuant to any agreement.
Application
The elements of an offence under s 135.4(1) as applied to the present allegations are: (1) The accused “conspired” with one or more other persons (here, the other appellant and Mr El-Debel)), meaning that the accused intentionally entered into an agreement with those other person(s) (here, the other appellant and Mr El- Debel); (2) When the accused conspired with the other conspirators, he had the intention of obtaining a gain (here, money) from a Commonwealth entity (here, the Commonwealth Department of Finance) for himself or another person (here, the intended gain was by each appellant and Mr El-Debel); (3) The obtaining of the intended gain would be dishonest according to the standards of ordinary people; (4) The accused knew that the obtaining of the intended gain would be dishonest according to the standards of ordinary people; (5) The accused and at least one other conspirator intended to “do the thing” which was the object of the agreement, namely to obtain a gain from the Commonwealth; and (6) At least one of the conspirators committed an overt act pursuant to the agreement.
As outlined at [56] – [62] above, the trial judge properly directed the jury in accordance with these elements. The trial judge also directed the jury that they needed to be satisfied beyond reasonable doubt of an intermediate fact, namely that the appellants and Mr Vilayur “agreed that pursuant to the agreement between them, an amount representing a portion of the share of the margins received by New Horizons and Algoram would be paid to Alex El-Debel”.
No complaint was made by either appellant concerning these directions, either in the trial, or on the appeal.
A summary of the evidence in the Crown case has been set out at [35] – [48]. This evidence was capable of establishing each of the elements of the offence as outlined above. It was open to the jury on the strength of that evidence to be satisfied beyond reasonable doubt of each of the elements of the offence as outlined above.
As to the agreement, the jury were instructed by the trial judge that the agreement alleged was between the appellant and Mr Vilayur to “influence the procurement system for the selection of candidates so that the candidates put forward by New Horizons and Algoram would be successful”.
The appellants submitted that this element could not be satisfied because the Crown “called no evidence from any witness who either witnessed El-Debel being paid any money or witnessed any conversation concerning El-Debel about the payment of money”.
This submission must be rejected. It matters not that there was no evidence adduced from any person who witnessed the agreement to engage in the dishonest conduct. As the jury were properly instructed, an agreement can be implied by conduct. Evidence that the appellants and Mr Vilayur had in fact engaged in conduct of the nature alleged was strong circumstantial evidence that they had an agreement to so act.
Ground 2(a):
In the alternative, the appellants submitted that the prosecution had failed to properly particularise its case in opening, closing or both, and that the prosecution’s failure to do had meant that the jury’s verdicts were not open, or alternatively, amounted to a miscarriage of justice.
As the Crown properly accepted, an accused is “entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged”: R v Mok (1987) 27 A Crim R 438 at 441.
In the opening address, the Crown adequately particularised the conspiracy alleged. The Crown made clear that the conspiracy was alleged to be an agreement between each of the appellants and Mr Vilayur. The Crown explained that the conspiracy was alleged to be an agreement to dishonestly influence the procurement system for the selection of candidates, so that the candidates put forward by New Horizons and Algoram would be successful. The dishonesty alleged was that “the process of recruitment was from time to time corrupted” by Mr Vilayur and Mr Kahlon “getting together” with Mr El Debel and Mr Vilayur so as to influence the recruitment of particular contractors, and that each of the conspirators would “share in those proceeds in a way which made their involvement … dishonest and, therefore, criminal”. The intended gain was particularised as the “moneys [which] flowed back to the two companies Algoram and New Horizons” in connection with the recruitment processes. The Crown was not required to provide any further particulars.
Accordingly, this ground of appeal must also be dismissed.
Orders
I certify that the preceding ninety-four [94] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate: Date: 16 July 2025
(1987) 44 SASR 436
(1994) 181 CLR 487
(2007) 230 CLR 559
(2020) 94 ALJR 394
(2022) 96 ALJR 728
(2007) 228 CLR 618
The appeal was dismissed. The convictions remained undisturbed. [94]
As will be discussed further below, although the appellants did not challenge the indictment, or any aspect of the trial judge’s directions to the jury concerning the elements of the s 135.4(1) offence, there are issues of statutory construction which underlie the appellants’ contentions with respect to the unreasonable verdict ground. For this reason, it is convenient to briefly address the history of s 135.4(1) of the Criminal Code before turning to a consideration of substantive grounds of appeal.
The offence of conspiracy to obtain a gain from the Commonwealth was first enacted by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth), following two reports of the Model Criminal Code Officers Committee of the Standing Committee of the Attorneys General (MCCOC) in 1995 and 1997.
In its 1997 Report, the MCCOC considered whether to abolish the common law offence of conspiracy to defraud (then contained in s 86A of the Crimes Act 1914 (Cth)). The MCCOC concluded that the offence of conspiracy to defraud should be retained. In so concluding, the MCCOC acknowledged that the offences contained in ss 86 and 86A of the Crimes Act may be criticised on the basis that the “same conduct would not be criminal if committed by an individual”. However, the MCCOC was of the view that the offence should nonetheless be retained because of the “long history” of the offence and “its recent use in significant cases”: MCCOC (1997) at 27.
The MCCOC also considered a proposal to “expand” the offence to include conduct committed with an intent to obtain a gain (rather than to cause a loss): MCCOC (1997) at 27. The MCCOC set out the various submissions supporting and opposing the amendment, the latter of which included that “mundane economic transactions [would be] open to scrutiny subject only to the uncertainties of the test of dishonesty”. After considering these competing submissions, the MCCOC recommended that the offence be expanded to include conduct with an intent to obtain a gain. The Committee explained (at 34 – 37): Submissions generally supported the inclusion of an intent to a gain in this offence. The Australian Law Reform Commission agreed that in virtually all cases where a person dishonestly causes a loss or a detriment to another, the intention is to obtain a gain or financial advantage and that in major attacks on large public or private institutions fraudsters pay little heed to where losses may fall, but certainly have gains for themselves very much in mind. The South Australian Police pointed out that including a gain in the offence will avoid an artificial or convoluted description of the conduct of the offender so as to fit into the description of causing a loss. MCCOC believes that the arguments for including gain are more persuasive. Section 17.4(1)(a) reflects this conclusion.
The form of the provision proposed by the MCCOC was as follows: 17.4 Conspiracy to defraud (1) A person who conspires with another person to do something dishonestly: (a) with the intention of obtaining a gain; or (b) with the intention of causing a loss or being reckless with respect to that result; or (c) with the intention of influencing the exercise of a public duty, is guilty of an offence.
Section 135.4 was enacted in somewhat different terms to what was proposed by the MCCOC. As enacted (and not materially amended since its enactment), s 135.4(1) and (9) relevantly provide: (1) A person is guilty of an offence if: (a) the person conspires with another person with the intention of dishonestly obtaining a gain from a third person; and (b) the third person is a Commonwealth entity. … (9) For a person to be guilty of an offence against this section: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended to do the thing pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
The offence created by s 135.4 is limited to frauds on the Commonwealth. The particular vulnerability of the Commonwealth to fraud was noted in the Revised Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth) at [189] and [191].
The text and history of s 135.4(1) make clear three matters which were, to varying extents, in issue in the present appeal.
First, as the Crown submitted, whilst the s 135.4 offences must be read against the common law (R v LK [2010] HCA 17; 241 CLR 17 at [107]), it is clear from the history outlined above that in enacting s 135.4(1), the Commonwealth Parliament intended to create a new offence which deliberately departed both from the common law and from the previous Commonwealth statutory offences concerning frauds upon the Commonwealth. In particular, the s 135.4(1) offence may be committed where there is an intention to obtain a gain from the Commonwealth, and does not require an intention to cause a loss, or a “prejudicing or imperilling [of] existing legal rights or interests”: cf Peters v The Queen [1998] HCA 7; 192 CLR 493 at [33]. It follows that cases concerning the meaning of “defraud” at common law and under previous statutory provisions do not provide any guidance as to the scope of the s 135.4(1) offence.
Second, the textual and historical context of s 135.4 makes clear that the intention to “do the thing pursuant to the agreement” in s 135.4(9)(b) directs attention to the intended object of the conspiracy, which differs for each of the separate offences (that is, to obtain a gain from a Commonwealth entity (s 135.4(1); to cause a loss to a Commonwealth entity (s 135.4(3) and (5)); or to influence a Commonwealth public official in the exercise of the official’s duties (s 135.4(7)). As noted above, the subjects of the conspiracies in s 135.4 need not themselves be criminal offences, provided that the conspiracy is entered into with a “dishonest” intention. Accordingly, as the appellants properly accepted, in a case such as the present, the prosecution will have demonstrated that each appellant intended to “do the thing pursuant to the agreement” if the prosecution establishes that the appellant entered into an agreement with the intention of obtaining a gain from the Commonwealth.
Third (following from the above), the only element in the s 135.4 offence which directs attention to the means to be employed in the conspiracy is s 135.4(9)(c), which requires that the accused “or at least one other party to the agreement must have committed an overt act pursuant to the agreement”.
When enacting s 135.4, the legislature departed from the recommendation of the MCCOC that a person “do something dishonestly” in favour of a textual requirement that the person conspire “with the intention of dishonestly obtaining a gain”.
In view of this legislative choice, there is no textual basis to import the additional element proposed by the appellants that: … the parties reach an agreement to do a particular “thing” being in the nature of an act or acts, with that thing (being conduct): (a) was intended to obtain, in the sense of cause the obtaining of, the particularised gain; and (b) was dishonest.
As the appellants correctly accepted, there is a distinction to be drawn between the “thing” agreed (the object of the agreement) and the “overt acts” (the way the agreement is carried out). This distinction was clearly drawn in the decision in R v Aston (1987) 44 SASR 436 at 439 , which recognised that “a person can be a willing conspirator in a fraudulent scheme, well knowing that the scheme is fraudulent, but having no idea of the manner in which it is implemented – not knowing any of the essential steps leading up to its implementation”. This distinction is at the heart of s 135.4(1): it is the agreement to obtain a gain from the Commonwealth which must be dishonest. The Crown does not need to prove that there was an agreement to engage in a particular act or acts with a dishonest intention.
In support of their arguments, the appellants relied upon the Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth), which states that the provision attaches “dishonesty to the various types of conduct”. However, read in context, and consistently with the text of the provision, this statement simply reflects the fact that the dishonest intention may attach to the different forms of “conduct” in issue in each offence (ie to obtain a gain from a Commonwealth entity; to cause a loss to a Commonwealth entity; and to influence a Commonwealth official). In any event, to the extent that the Explanatory Memorandum departs from the text of the legislation, it is aspirational and must give way to what has been legislated: see R v JS [2007] NSWCCA 272; 230 FLR 276 (Spigelman CJ, with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed) at [141] – [145], especially at [144].
Third, a large number of intercepted calls, in which Mr Kahlon and Mr Vilayur spoke about a man whom they described as “bai” or “brother”, in terms consistent with that man being a manager in the Department. The calls made reference to the payment of a “brother’s cut” to be paid to that man. The prosecution contended that, considered in totality, it was clear that the man referred to as “bai” or “brother” was Mr El-Debel. The prosecution also contended that these calls demonstrated that Mr El-Debel was receiving the “brother’s cut” for his role in the recruitment process, including his involvement with the selection committee, and his role in arranging for Algoram and New Horizons’ candidates to have advance knowledge of the procurement process, including the interview questions that they would be asked.
There were over 24 hours of calls played to the jury over 10 days. These calls included: (i) An intercepted phone call on 12 October 2019, in which Mr Kahlon told Mr El- Debel “for your information … I’ve picked up the … um the stuff”, and when asked by Mr El-Debel how much he picked up, Mr Kahlon said “three four”; (ii) Intercepted calls of 18 November 2019, 1 June 2020 and 3 June 2020, in which Mr Kahlon told Mr Vilayur that he had given money to “Alex” or “brother”; (iii) An intercepted phone call of 28 January 2020, which recorded Mr Vilayur telling Mr Kahlon “brother is saying one thing, Stuart is saying another thing, and Lucelle is saying something different”, suggesting that “bai” (or brother) was a manager in the Department with responsibilities related to Stuart Munro and Lucelle Veneros; (iv) An intercepted phone call of 10 March 2020, which recorded Mr Kahlon and Mr Vilayur using the Hindi word for “brother” to describe a person who had complained of being “exhausted” and who was about to “start working” on a project involving “ERP transformation” under “Lucelle”; (v) An intercepted phone call of 10 March 2020, in which Mr Vilayur talked about “our brother” and said “today he was telling me that Eugene… needs to be your person. He needs to be our person”. Mr Kahlon responded that “he was very clear on that” and described a conversation with “brother” which was consistent with a conversation between Mr El-Debel and Mr Vilayur occurring immediately after, in which Mr El-Debel spoke of having had a conversation with “Raminder” about “being like more out there”; (vi) An intercepted phone call of 20 March 2020 (the day after Requests for Quotation for SST-044 and 045 were issued), in which Mr Vilayur spoke of the roles he was applying for, and told Mr Abrol that “Brother is coming to my office on Sunday for developing some strategies” and laughed; (vii) An intercepted phone call on 25 March 2020, which recorded Mr El-Debel telling Mr Vilayur: “I’m going to sit down with Stuart [Munro]” to discuss setting up the panel; [ (viii) An intercepted phone call of 26 March 2020, which recorded Mr Kahlon give advice to Mr Vilayur about how to set up a spreadsheet of which each had a copy. They switched to Hindi when the discussion turned to a “bai’s cut of $5 per hour” (the Crown pointed out that the spreadsheet indicated that the “Other Share (Cash)” was in the sum of $5 per hour); (ix) An intercepted phone call of 28 March 2020, in which Mr Kahlon referred to a meeting with “brother” tomorrow, which was consistent with earlier conversations about meeting “brother” on a Sunday, and discussed with Mr Vilayur the recruitment of “Lindsay” Pearce; (x) An intercepted phone call of 28 March 2020, which recorded Mr Kahlon asking Mr Vilayur about the prospects of Eugene O’Reilly getting the program manager’s job. Mr Vilayur responded that “brother will be in the panel”. Mr Kahlon later suggested going through a margin sheet “in front of Alex … because he is also about his margin”; (xi) An intercepted phone call of 28 March 2020, in which Mr Vilayur said to Mr Kahlon “today I have deleted all my chats… not just you and me” but “everything” including “our brother ABCD”. Mr Vilayur asked Mr Kahlon to “do that in your phone as well”; (xii) An intercepted phone call of 28 March 2020, which recorded Mr Kahlon and Mr Vilayur showing Mr El-Debel their margins so that he would be motivated by the margin that he himself would keep, which would be compensation; (xiii) An intercepted phone call of 29 March 2020, in which Mr Vilayur and Mr Kahlon discussed a meeting they were about to have with “Alex”, consistent with earlier conversations about meeting “brother” on Sunday; (xiv) An intercepted phone call of 29 March 2020 in which Mr Vilayur told Mr Kahlon to “write who is shortlisted and who is in merit list” on a sheet of paper for “Alex” because “he won’t take Excel”; (xv) An intercepted phone call on 30 March 2020, in which Mr Vilayur told Mr Abrol “if you see or hit upon a gold mine … let’s discuss” and further told Mr Abrol that he “needs to get a good outcome”; (xvi) An intercepted phone call of 31 March 2020, in which Mr Vilayur and Mr Abrol laughed about the selection process, and discussed “Alex’s” role in it, which included trying to control “Ivan (Spudic)”, the chair of the evaluation committee, and discussed the use of the “Houseparty” app, in which “room can be locked no one can come in”; (xvii) An intercepted phone call of 1 April 2020, in which Mr Abrol spoke to Mr Vilayur about what “our brother is saying” and Mr Vilayur confirmed that he was speaking about “Alex”; (xviii) An intercepted phone call of 9 April 2020, in which Mr Abrol congratulated Mr Vilayur on the recruitment of Lindsay Pearce and told Mr Vilayur to “tell your brother to sort out their differences” in the context of discussion about “Alex” and “Stuart”; (xix) An intercepted phone call of 18 April 2020, in which Mr Kahlon’s wife referred to the company name “Algoram” as being an abbreviation of “Alex, Gopal and Raminder”; (xx) An intercepted phone call of 3 June 2020, in which Mr Kahlon referred to “our brother Alex’s candidates”; and (xxi) An intercepted phone call on 11 May 2020 (Exhibit A, 816) in which Mr Vilayur informed Mr Ravi Kiran Jagannathan, a Solution Advocate who was recruited by the DOF through Algoram, that he would be interviewed by El-Debel and asked questions which reflected those in the interview notes.
Fourth, evidence of international money transfers from New Horizons, a pool of funds out of which money, including cash, could be transferred to Mr El-Debel or Mr Vilayur.
Fifth, a bundle of records from the Department of Finance, which included emails from each of the co-accused; registers of the contracts engaged by the SDO and the Project; work orders for the Algoram and New Horizons candidates for the major procurement exercises that took place during the alleged offending (SST-044 and SST-045). The records bundle also contained notes of an interview of 11 May 2020 with Mr Jagannathan, which indicated that Mr El-Debel attended the interview and asked questions. This interview occurred shortly after the intercepted call referred to at [42(xxii)] above, in which Mr Vilayur told Mr Jagannathan that he would be asked questions by Mr El-Debel in the interview which reflected the questions in the interview notes.
Sixth, evidence from Stuart Munro, the delegate for the work orders for SST-044 and SST-045. Mr Munro gave evidence that Mr El-Debel attended a number of interviews with candidates put forward by Algoram.
The Crown ultimately submitted in the closing address to the jury that the evidence revealed that Mr Vilayur, Mr Kahlon and Mr El-Debel were “deeply financially involved together in a way which is totally inconsistent with their obligation to be open and transparent to the Department of Finance”. The Crown acknowledged that “but for the fact that they shared in a way in a joint arrangement with Mr El-Debel… most of what happened although it might have been procedurally wrong and may have created disciplinary issues from the Department’s perspective… would not have been criminal”. The Crown case was that the payment of money to Mr El-Debel tainted the whole process such that the jury should conclude that the agreement was one to “dishonestly” obtain a gain from the Commonwealth.
The above facts and the inferences drawn therefrom demonstrate that, in circumstances where the Department did not know of the agreement between the three men and where a conflict of interest plainly arose from that agreement with their engagement by the Department , both the recruitment process and the whole of the circumstances in which the money was shared between Mr Vilayur, Mr Kahlon and Mr El-Debel were dishonest.
Ultimately, a conclusion should be drawn from the evidence that Mr Vilayur, Mr Kahlon and Mr El-Debel, as the parties to the agreement, knew that their conduct was dishonest and that they should have disclosed their conduct (ie, their conflict of interest) to the Department. If that disclosure had been made, the Department most likely would not have made the recruitments which resulted in Algoram and New Horizons obtaining a gain by way of those recruitments.
The trial judge also briefly summarised the appellants’ cases. His Honour observed that both appellants denied the existence of any agreement. His Honour also noted that the appellant had “emphasised that all of the acts of the accused have explanations which are not necessarily connected to any conspiracy” (such as the transfer of funds for legitimate overseas investments).
The trial judge also noted that the appellants had pointed out that the “actual appointments of the candidates was not, in any way, improper”, and that this fact was conceded by the Crown. His Honour continued: The candidates were qualified for the job and there is no suggestion they did them other than well. The points is simply, according to the Crown, that the candidates … that were put forward by New Horizons and Algoram were put in a better position to obtain the positions than if they had been put forward by other companies or vendors. You will also remember the eight points made by Mr Kalyk and the emphasis placed by Ms Newman, in her build up to the 21 points, on the need for the Crown to prove that Mr El-Debel was paid or to be paid pursuant to the agreement. You will remember that I said that is something that has to be proved beyond reasonable doubt. Ms Newman also pointed out the declarations of interest and the putting forward of the better candidates regardless of who the vendor was. She highlighted that when referring to Algoram that Mr El-Debel never expressed an ownership of the company. He never, for example, referred to it as ‘our company’. The accused say how could there be a dishonest conspiracy if the best candidates were being put forward for the jobs? The Crown says, by implication, if their good candidates were not being put forward, the scheme would soon fail if the Department realised that candidates from New Horizons or Algoram were not much good. The accused also say, and this, of course, is very fundamental to the whole case, that the Crown has simply not proved its case against them beyond reasonable doubt and I have repeated it so many times, that is where the onus is.
In the course of the summing up, the trial judge also provided the jury with a written directions document, which described the matters that must be proved beyond reasonable doubt as follows: Although both accused are charged with the same offence, you must consider the case against each separately. You must only find an accused guilty of the charge if you are satisfied beyond reasonable doubt that: 1. The accused you are considering conspired with the other accused and Gopal Vilayur. This means that the conspirators were intentionally party to an agreement with each other. Such an agreement need not have been attended by any formalities and could have been expressed by words or implied by conduct, and 2. When the accused you are considering participated in the agreement, he had the intention of dishonestly obtaining a gain from the Commonwealth. This means that he intended that New Horizons or Algoram would dishonestly receive money from the Commonwealth, and he would receive a share of that money, and 3. The accused you are considering and at least one of the other conspirators intended to do the thing which was the object of the agreement. This means that the agreement was not hypothetical from this accused’s perspective, because he and at least one of the other conspirators intended to take steps to carry it out, and 4. At least one of the conspirators committed an overt act pursuant to the agreement. This means that at least one of the conspirators actually carried out a step to further the agreement. Before you can find either accused guilty of the charge, you must also be satisfied beyond reasonable doubt that Gopal Vilayur, Raminder Kahlon and Alex El-Debel agreed that pursuant to the agreement between them, an amount representing a portion of the share of the margins received by New Horizons and Algoram would be paid to Alex El-Debel. Determination
The trial judge also directed the jury that they must be satisfied beyond reasonable doubt that the appellants and Mr Vilayur “agreed that pursuant to the agreement between them, a portion of the share of the margins received by New Horizons and/or Algoram would be paid to Alex El-Debel”.
The evidence outlined above was amply capable of demonstrating that there was an agreement in these terms. In particular, in circumstances where there was evidence that during intercepted phone calls made between 18 November 2019 and 3 June 2020, Mr Kahlon told Mr Vilayur that he had given money to “Alex” or “brother” and where documentary evidence demonstrated that Mr El-Debel was at various time directly or indirectly involved in the procurement process that hired New Horizon and Algoram candidates, it was well open to the jury to conclude that references in other intercepted conversations relating to a “brother’s cut” or “bai’s cut” referred to money that would be received by Mr El-Debel as part of an agreement to engage in dishonest conduct. Accordingly, particular (5) has no merit.
As to the element of gain, once the jury were satisfied that the appellants and Mr Vilayur had entered into an agreement to “influence the procurement system for the selection of candidates so that the candidates put forward by New Horizons and Algoram would be successful”, it followed that the jury would also be satisfied that the intention of the conspirators was to obtain a gain from the Commonwealth.
The whole point of the agreement was to assist candidates from New Horizons and Algoram to be selected via a corruption of the recruitment process. New Horizons and Algoram were paid by the Commonwealth when one of their candidates was successfully employed. As Mr Kahlon and Mr Vilayur were the owners of New Horizons and Algoram and were entitled to draw down upon the funds of each company – any gain by those companies also constituted a gain by those two individuals, one being the present second appellant, although the element of dishonesty in those payments came from the portion that was paid to Mr El-Debel. The jury were further instructed that they could not find either appellant guilty unless they were also satisfied beyond reasonable doubt that a portion of the margins received by New Horizons and/ or Algoram would be paid to Mr El-Debel. Accordingly, the element of gain was established for each appellant.
The appellants contended that there was no intention to obtain a gain from the Commonwealth because “Mr Kahlon [was] just taking money out of his company … [which] may not necessarily be the same money that came from the Department of Finance relevant to the agreement”, rendering any such gain “too remote”. This contention must be rejected. Contrary to the appellants’ submissions, payment by the Department of Finance was not remote to the agreement. Such payment was an integral part of the agreement, which intended that, as a result of the corruption of the recruitment process, New Horizons and Algoram would obtain contracts that they otherwise might not have been awarded. Accordingly, particular (2) must be rejected.
As the Crown submitted, the fact that the candidates themselves were not a party to the conspiracy (so that there was “no impugning of funds” received by them) did not mean that the “gain” was limited to the profit margins of New Horizons and Algoram. The essence of the offence contrary to s 135.4(1) is the agreement: the intent of the agreement was for candidates of Algoram and/ or New Horizons to be selected through a corrupt process, resulting in a financial gain to Mr Kahlon and Mr Vilayur via their companies, and to Mr El Debel via the ‘secret commission’. Accordingly, the appellants’ contention that the “gain” should be characterised as the “payment of money pursuant to a (valid) contract” (particular (3)) must also be rejected.
The appellants’ contention that the Crown did not demonstrate the element of gain because the agreement was only to “increase the chance of their candidates being selected” must be rejected for similar reasons. Again, as the essence of the offence is in the agreement, the offence is forward looking and focussed on the parties’ intent. The intent of the agreement was that Algoram and New Horizons candidates would be selected in the recruitment, resulting in payments to Algoram and New Horizons, and these payments would ultimately represent a gain to the appellants and Mr Vilayur. The fact that the conspirators acknowledged (even as a part of the agreement) that there was a prospect that, despite their efforts, their candidates might not be selected does not alter the character of the agreement. As Bromwich J observed in oral argument: “The intention is to obtain a gain, not a certainty that you will obtain a gain, but an intention to do so”.
The element of dishonesty is likewise focussed on the agreement between the parties. As explained at [20] – [34] above, it is the agreement to obtain a gain from the Commonwealth which must be dishonest. The Crown does not need to prove that there was an agreement to engage in a particular act or acts with a dishonest intention.
The evidence in the Crown case was amply capable of demonstrating that the intent to obtain the gain was dishonest. In particular, it was well open to the jury to conclude that the parties’ joint intention to obtain a gain from the Commonwealth was dishonest when measured against community standards where the agreement was that a ‘secret commission’ was to be paid to one of the conspirators for his role in the corruption of the recruitment process (noting that the jury were instructed that they could not find either appellant guilty unless they were satisfied beyond reasonable doubt that each conspirator agreed that an amount representing a portion of the share of the margins received by New Horizons and Algoram would be paid to Mr El-Debel).
It mattered not the appellants may also have been motivated to ensure that qualified candidates were engaged by the Department. Where an agreement is made for mixed purposes, the fact that one of the motivations of the agreement is dishonest may be sufficient to support a conclusion by the tribunal of fact that the entire agreement was dishonest. Each case will turn on its own facts.
In the present case, if the intent of the conspirators had only been to ensure that the best qualified candidates were employed, the element of dishonesty may not have been satisfied. However, the jury were entitled to reject this as a reasonable possibility. In particular, it was well open to the jury to conclude that there would be no reason to pay Mr El-Debel a portion of the margins received if the agreement had only been to ensure that qualified candidates were engaged by the Department. Accordingly, particulars (4) and (5) must be rejected.
As to the commission of an overt act, there was no dispute that Mr Kahlon and Mr Vilayur (via Algoram and New Horizons) submitted candidates for recruitment. As the Crown submitted, this constituted an overt act in furtherance of the agreement. In these circumstances, the issue raised before the trial judge as to whether a verbal exchange may constitute an “overt act” does not arise.
The remaining particular (particular (1)) must also be rejected. It was not incumbent on the Crown to demonstrate that any act or conduct of the appellants had in fact caused a gain to the appellants. As has been emphasised, the essence of the s 135.4 offence is in the agreement to obtain a gain, not in the obtaining of the gain. It was not necessary for the Crown to identify, or establish any “causative conduct” on the part of the appellants. All that was required to demonstrate was that the appellants intended to obtain the gain as per the agreement. For the reasons outlined above, this was amply demonstrated in the present case.
Insofar as the appellants’ complaint under particular 1 was in fact a complaint that the appellants’ agreement was not capable of causing the obtaining of a gain, this complaint should also be rejected. The purpose of the agreement was to ensure that contractors from Algoram and New Horizons were selected. As explained above, the selection of Algoram and New Horizons candidates would result in a gain to each of the appellants.
The Crown contended that the jury had a “considerable” advantage in hearing the telephone intercepts. The Crown submitted that having “listened to the appellant’s words for many hours … [t]he impression which the jury formed of the appellants’ personalities and speech patterns would have been critical in interpreting the disputed calls”. In this respect, the Crown also noted that, on the Crown case, the appellants “were taking steps to obscure their language and delete records”. The Crown submitted that any doubt that may be held by this Court as to the appellants’ guilt would be resolved by the recognition of the jury’s advantage in hearing all of the evidence.
In the submissions in reply, the appellants disputed this contention, and submitted that: “Should there be matters in the audio that do not appear in the transcript, the Crown is at liberty to point them out if they are material and copies of the audio can be provided to the Court”. The appellants contended that this Court was in fact in a “better position [to determine the issues in dispute] tha[n] the jury”.
After careful consideration of the evidence, we do not hold a reasonable doubt as to the appellants’ guilt. In these circumstances, it is not necessary to consider whether the jury had a relevant advantage in hearing the telephone intercepts (many of which were in Hindu). This ground of appeal must be dismissed.