The Judgment in Ansari
19 In order to understand the applicability of the judgment in Ansari to the present case it is necessary to note that it was concerned with a conspiracy to commit a different offence. I have set out at [6] above, the two distinct offences as created by s 400.3(2) of the Commonwealth Criminal Code.
20 This case involves an offence A, concerned with money as proceeds of crime. Ansari involved an offence B, concerned with a risk that money would become an instrument of crime. That difference explains some of the language of the judgments in Ansari where the word "risk" is sometimes deployed as a reference to the particular charge, not to the fault element of recklessness.
21 Howie J referred to Churchill v Walton [1967] 2 AC 224; Johnson v Youden [1950] 1 KB 544; Kamara v Director of Public Prosecutions (UK) [1974] AC 104; Giorgianni v The Queen (1985) 156 CLR 473; Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359, and concluded:
"[76] The situation at Common Law, therefore, is that there is no impediment to a person being charged with a conspiracy to commit an offence that is one of strict or absolute liability. However, in order to be guilty of the conspiracy to commit such an offence the person must agree to commit an act that is unlawful. The person does not have to know that the act is unlawful but needs to know all the facts that make the act unlawful . If a person can conspire to commit a crime for which no mens rea is necessary, there seems to be no good reason why a person could not conspire to commit a crime of which the mental element is recklessness." (emphasis added)
22 Howie J had earlier identified the relevant offence:
"[63] In my opinion there is only one physical element in the offence as stated in s 11.5(1). The physical element is encompassed in the words 'conspires to commit an offence'. It is impossible to comprehend two people forming an agreement unless the subject matter of the agreement is known. A composite element of an offence has been recognised in offences to which the Code applies: see Lee v R [2007] NSWCCA 71 at [7]. The subject matter of the prohibited agreement under s 11.5(1) is an intention to commit an offence of the kind described in the section. Therefore s 11.5(1) contains a single physical element of conduct being to enter into the proscribed agreement. There is no fault element stated in s 11.5(1), therefore, applying s 5.6(1), the default fault element for a physical element of conduct is intention. Applying the definition of "intention" in s 5.2(1) of the Code, the person must mean to enter into such an agreement."
23 His Honour subsequently referred to:
"[78] … the requirement of s 11.5(2)(b) that the accused and at least one other person 'have intended that an offence would be committed pursuant to the agreement'. The accused must intend that conduct will be carried out that amounts to a criminal offence and he cannot have that intention if he does not know all the facts that would make the intended conduct an offence . It is not enough that he intends that conduct will be carried out that it so happens and by reason of facts of which he is unaware is criminal." (emphasis added)
24 In the passage primarily relied upon in the submissions on this appeal his Honour said, (emphasis added):
"[85] Generally speaking the issue that is raised in respect of conspiracy to commit an offence to which recklessness applies is one of proof of the guilty knowledge of the conspirator rather than the validity of the charge. A charge is not bad at common law on its face just because it alleges a conspiracy to commit a strict or absolute liability offence or an offence that could be committed recklessly. It would be rare for the statement of the offence to show on its face that the allegation was one that relied upon the accused's being reckless as to a fact that was an element of the offence to which the conspiracy related. It should become apparent if particulars were required to be given indicating how it was alleged by the prosecution that the accused had agreed to commit the offence that is the subject of the conspiracy. Unless the prosecution was alleging that the accused had sufficient knowledge of the facts making the conduct agreed upon a criminal offence , it could not succeed on the charge of conspiracy.
[86] If at the end of the Crown case there was evidence proving the requisite knowledge then the trial judge would be required to direct the jury that, before they could convict the accused of the conspiracy alleged, they must find beyond reasonable doubt that he had the knowledge of facts that made the intended conduct an offence and hence the conspiracy a criminal one.
[87] In my opinion the conspiracy alleged in each of the charges was not bad at law. There is nothing in the Code that indicates that a person cannot conspire to commit an offence of which the mental element is recklessness and there is no reason otherwise to impose such a restriction on the offence. There are two reasons for reaching that conclusion. Firstly the agreement entered into may be that another person will carry out the conduct. Provided that the conspirators know of all the facts that would make the conduct of the third party criminal , it would not matter that the person carrying out the conduct was committing an offence by acting recklessly.
[88] Secondly recklessness under the Code can be proved by both intention and knowledge. Section 5.4(4) provides:
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Therefore, if the conspirators intended that they would carry out the conduct knowing all the facts that made that conduct criminal it would not matter that the offence arising from that conduct was one for which the fault element was recklessness.
[89] It is the second reason that applies in the present case. Provided that the Crown was intending to prove as against the appellants that they knew that there was a risk that the money they dealt with would become an instrument of crime , that is that they knew of all the facts that made their dealing with the money criminal conduct , there was no impediment to the prosecution proving the offences charged."
25 His Honour reiterated the critical aspect of the Crown case in Ansari:
"[93] … It is clear … that the Crown was maintaining in relation to the appellants that it would prove that they were reckless as to the risk of the money being used as an instrument of crime because the appellants intended that it would be used as an instrument of crime. The Crown was alleging that they had knowledge that the money with which they dealt … was at risk of being used as an instrument of crime because they knew it was money that would be used in the commission of crime or to facilitate crime". (emphasis added)
26 In her judgment Simpson J said:
"[9] Thus, where a person is charged under the Code with conspiracy, the Crown must, by s 11.5(2)(b), prove, inter alia, that the person charged and at least one other party to the agreement alleged intended that an offence (punishable by imprisonment for more than 12 months) would be committed pursuant to the agreement. It is of some significance that s 11.5(2)(b) (in contrast to s 11.5(1)) is framed in the passive voice; it is not necessary that the physical acts that make up the offence are intended to be or will be committed by any particular person. In particular, it is not necessary that they are intended to be, or will be, committed by any of the conspirators. Two people may, for example, agree to arrange the importation of prohibited drugs by using an unwitting agent, who is wholly unaware that he is carrying the drugs …"
27 Simpson J also said:
"[19] As set out above, by s 400.3 of the Code , the fault (mental) element of the offence of money laundering may be intention, recklessness, or negligence. That state of mind must be shown to exist at the time of the 'dealing' alleged. An allegation of conspiracy to commit that offence where the fault element alleged is recklessness raises this question: whose state of mind is relevant for the purpose of determining recklessness? I am of the view that that person is the person who performs the physical acts that constitute the crime against s 400.3(2). That is: where A and B agree that an offence will be committed (at their behest) against s 400.3(2) by C, it is C's state of mind that must be shown to be reckless: that is, reckless as to the fact that there is a risk that the money or property will be used in or to facilitate, the commission of a crime. The state of mind of the conspirators must (because of s 11.5(2)(b)), be intention - ie intention to agree that an offence against s 400.3(2) will be committed; and that offence may be constituted by the fault (mental) element of recklessness. But, because in this case it was alleged that the physical acts of the appellants in receiving the money constituted the physical element of the offence of money laundering, it is not necessary to consider the state of mind of any other person.
[20] But the manner in which the offences (of conspiracy) were pleaded and particularised produces this somewhat odd result: the appellants were charged with (intentionally) agreeing to commit an offence the fault element of which was recklessness - ie they agreed to deal in money, reckless as to whether the money would be used in, or to facilitate, the commission of a crime.
[21] Such a proposition is conceptually difficult to grasp. Logic, or a rational use of English language, would suggest that that cannot be done. But such resistance to the proposition fades when regard is had to the definition in the Code of 'recklessness', which gives the word an extended meaning."
28 Her Honour's reference to "an extended meaning" was a reference to s 5.4 which I have set out at [9] above and which her Honour said 'defined' the word "recklessness".
29 Simpson J went on to say:
"[23] Recklessness, as I have already mentioned, was the state of mind necessary for the commission of the offence the object of the conspiracy - what I might call the subsidiary offence. The recklessness to which the indictment adverted was recklessness as to a circumstance in which conduct that constituted the s 400.3(2) offence was said to have occurred - the circumstance being the existence of a risk that the money would be used in, or to facilitate, the commission of a crime … To prove the conspiracy the Crown had to prove that the appellants agreed to commit an offence aware of the relevant circumstance . Where (as here) the circumstance is, itself, the existence of a risk, putting the language of s 400.3(2)(c) together with that of s 5.4(2)(a) produces a result that, at first glance, might appear odd, but which is not in reality, (for reasons which will appear) untoward. The result is this: the Crown had to prove that the appellants intentionally agreed that each would deal with money in the future, and that, at that future time each appellant would be aware that there then would be a substantial risk that there was a risk that the money would become an instrument of crime (ie would be used in, or to facilitate, the commission of an indictable offence), and (by sub-para (b)) that, having regard to the circumstances known to him, it was unjustifiable to take that risk. That is conceptually unacceptable. But it emerges only from the unextended meaning of 'recklessness'. To prove recklessness , by reason of s 5.4(4) the Crown could also prove either that the appellants intended or knew that the money would become an instrument of crime . That is, in fact, what the Crown here set out to do ." (emphasis added)
30 Simpson J referred to the Crown case under consideration:
"[28] … It is inherent in the manner in which the charges were framed, and the sub-section under which they were brought, that the Crown was alleging that the appellants were reckless as to the fact that there was a risk that the money deposited would be used in the commission of, or to facilitate, the commission of that crime or in the commission of a tax evasion offence. Bearing in mind the provisions of sub-ss 5.4(2) and (4), it was open to the Crown to prove recklessness either by proving that the appellants were aware that there was a substantial risk that the money would be used in that way, and that, having regard to the circumstances known to them, it was unjustifiable to take that risk OR that they either intended or knew that the money would be used in that way. Although it was not necessary that the Crown prove that the appellants (or either of them) themselves physically dealt with the money, it was admitted by them that, in receiving the money from Z, they did so. (As indicated above, the Crown case was, in fact, that the appellants both knew and intended that the money would be used in that way.)" (emphasis added)
31 Her Honour referred to the necessity to prove an intention to enter into the agreement and added:
"[32] … On behalf of the appellants heavy reliance was placed upon the provisions of s 11.5(2)(b), requiring, for proof of the offence of conspiracy, proof that at least two individuals intended that an offence would be committed pursuant to their agreement. That is a different intention. There is no reason why that intention does not extend to an intention that an offence against s 400.3(2) would be committed - that is, an offence constituted by dealing in money/property where there existed a risk that the money/property would become an instrument of crime, and where the person who committed that crime would be reckless as to the fact of that risk - that is, would be aware of a substantial risk that the money would be used in structured transactions, avoiding the provisions of the FTR Act (or tax evasion), and that, having regard to the circumstances known, it is unjustifiable to take that risk; or knew or intended that it would be so used.
[33] The argument advanced on behalf of the appellants wholly fails to take into account the extended definition of 'recklessness' contained in s 5.4(4). Where recklessness may be proved by intention or knowledge, any colour of validity that might otherwise be given to the argument disappears altogether. And both knowledge and intention were what the Crown here set out to prove .
[34] The flaw in the appellants' argument is in failing to identify who the Crown alleged was (or would have been) 'reckless' and to what aspect of the facts alleged the recklessness attaches. The appellants' argument attributes recklessness to themselves, in the formation of, or entry into, the criminal agreement. I accept that recklessness is insufficient for that. But that is not the correct analysis. It is not recklessness as to the agreement that is in question; it is agreement (intentionally entered into) that an offence will be committed that might, inter alia, be done with a reckless state of mind. The recklessness attaches, not to the formation of, or the entry into, the agreement, but to the offence that is to be committed pursuant to the agreement." (emphasis added)
32 The judgments in Ansari provide one example of a factual situation in which persons can conspire to commit an offence with respect to which recklessness is the fault element attached to a physical element of the offence. I refer to a situation in which the physical element is to be carried out by a person who is not party to the agreement.
33 As Howie J said at [87], set out at [24] being the first of two examples his Honour gave, to repeat:
"Provided that the conspirators know of all the facts that would make the conduct of the third party criminal, it would not matter that the person carrying out the conduct was committing an offence by acting recklessly."
34 This reasoning is to the same effect as the observations of Simpson J at [19], set out at [27] above, that the relevant state of mind of recklessness is the state of mind of "the person who performs the physical acts that constitute the crime against s 400.3(2)".
35 In Ansari this example did not apply because, as in the present case, it was the accused who, it was alleged, dealt with the money.
36 The judgments in Ansari focused on s 5.4(4), which I have set out at [9], to the effect that where recklessness is a fault element it can be established by proof of intention or knowledge as well as by proof of recklessness.
37 Section 5.4(4) is based on the reasonable proposition that a lower level of culpability can be made out by proving a higher level of culpability.
38 As the Final Report of the Model Criminal Code Officers' Committee entitled Model Criminal Code Chapter 2: General Principles of Criminal Responsibility (1992) ("the MCCOC Report") made clear at [203.3], the authors of what became s 5.4 of the Commonwealth Criminal Code relied on the US Model Penal Code. That Code relevantly provides:
"2.02(5) When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When acting recklessness suffices to establish an element, such element is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely."
39 As the Explanatory Note to this provision states:
"Subsection (5) makes it unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely." (See Uniform Laws Annotated - Volume 10A: Model Penal Code , West Group, 2001 p96.)
40 Similarly, s 5.4 of the Commonwealth Criminal Code makes it unnecessary to state on each occasion that a person may be convicted of an offence containing a physical element for which the fault element is recklessness if s/he is more culpable than that ie, because s/he intended or knew of that element.
41 In Ansari, Simpson J referred to s 5.4(4) as definitional. (See eg her Honour's reference to "definition" and "extended meaning" at [21] and [23] set out at [27] and [29] above.) In my opinion it is more appropriate to characterise the section as evidentiary, rather than definitional.