R v Theophanous [2003] VSCA 78

"That between the 4th day of July 1998 and the 22nd day of February 1999 at Melbourne in the State of Victoria [the applicant] did, contrary to s.86 of the Crimes Act 1914, conspire with Peter Yau, Frank Cheung and Chen Qing, to commit an offence against the law of the Commonwealth, namely defraud the Commonwealth contrary to s.29D of the Crimes Act 1914."

"That between the 1st day of December 1998 and the 8th day of February 1999 ... [the applicant], contrary to s.29D of the Crimes Act 1914, did defraud the Commonwealth, namely by falsely representing to officers of the Department of Immigration and Multi-Cultural Affairs that the relationship between `John Jang' and his wife was ongoing."

"That on about the 4th day of January 1999 at Broadmeadows in the State of Victoria, [the applicant] contrary to sub-section 73A(1) of the Crimes Act 1914, being a member of the House of Parliament, did receive property for himself, namely $2,000, on an understanding that in the exercise by him of his duty or authority as such a member would, in any manner, be influenced or affected."

"That, on or about the 25th day of January 1999 at Broadmeadows in the State of Victoria [the applicant], contrary to s.73A(1) of the Crimes Act 1914, being a member of the House of the Parliament, did agree to ask for property for himself on an understanding that the exercise by him of his duty or authority as such a member would, in any manner, be influenced or affected."

16. The total effective sentence which was imposed by the judge upon the applicant for these offences was, as we have said, six years' imprisonment. That sentence was made up as follows:

In accordance with the provisions of s.19(2) of the Crimes Act (Cth.), his Honour directed that the sentence on count 2 commence on the day of sentence (namely 11 June 2002); that the sentence of three years imposed upon count 3 commence on the 11th day of December 2004; that the sentence of one year upon count 5 commence on the 11th day of March 2007; and that the sentence of one year's imprisonment on count 6 commence on the 11th day of June 2007. The effect of those disparate commencement days was that the total effective head sentence imposed upon the applicant would expire 12 months after the 11th day of June 2007 - that is six years from the day upon which these sentences were imposed.

24. A significant part of the evidence which was placed before the jury by the Crown related to the conspiracy alleged in count 2. The conspiracy alleged was particularised by the Crown as follows:

"To influence officers of the Department of Immigration and Multi-Cultural Affairs (DIMA) to act contrary to their public duty in permitting Chen Qing to enter Australia under a valid visa by falsely representing that `Chen' was likely to leave Australia in compliance with the conditions of such visa."

28. In respect of this conspiracy, the applicant was tried alone. His co-conspirator Yau had pleaded guilty, and gave no evidence. Cheung - who was named as a co-conspirator - gave evidence for the Crown. The remaining co-conspirator, Chen Qing, was at all times in China and gave no evidence.

31. In his career as a Parliamentarian, the applicant had interested himself in immigration affairs and, in particular, had made representations on behalf of the Asian community in respect of applications to enter this country. It seemed that he propounded a view, in championing the interests of immigrants from Asia, that the immigration policies developed by the Department were discriminatory in their effect against such applicants for entry. The applicant was apparently known to and friendly with one, Peter Yau, who, as alleged by the Crown, was a co-conspirator with the applicant in the conspiracy alleged in count 2 and acted as the applicant's agent in conversations which took place between Yau and Cheung - also alleged to be a party to the conspiracy. Unbeknown to both the applicant and Yau, Cheung was, at the relevant time, a registered informer of the National Crime Authority ("NCA").

34. It appears that the NCA's interest in the applicant was aroused, co-incidentally, in 1998 when officers of the Authority were investigating a drug importation scheme involving a man named David Choi who was known to the registered informer Cheung. In the course of conversations between Cheung and Choi, the latter informed Cheung that he had had some problems which he was encountering in bringing his wife to Australia from China; but that he knew a politician ("Dr. Andrew") who could assist in immigration matters. This conversation was reported by Cheung to his controller, who instructed Cheung to attend a meeting at "Plumes" Restaurant on 4 July 1998 where Choi was to meet with both the applicant and Peter Yau. At this and various further meetings listening devices, which had been obtained by warrant, were affixed to Cheung, who apparently was also wearing a "body tape". In this way many recordings of the conversations which took place between the various parties were made and transcribed and, ultimately, placed before the jury.

39. This meeting had been arranged between Choi and Yau solely for the purposes of Choi receiving advice as to the steps he should take to arrange for his wife to come to Australia. Cheung was apparently present both as a friend of Yau and as an interpreter for Choi. Co-incidentally, Cheung himself, according to the Crown, had a desire to arrange for a female friend whom he knew in China (Chen Qing whom we shall call "Chen") to come to Australia. Accordingly, so the Crown alleged, he determined to use the meeting of 4 July to gain some advice on this topic for himself. At the meeting he expressed his desires to the applicant who, at that stage, appears to have been non-committal, suggesting that the matter could be discussed at a later time.

42. In the early part of August 1998, Cheung met or spoke with Yau on numerous occasions, seeking Yau's assistance, through the applicant, to bring Chen to Australia. Transcripts were made of these various conversations between Yau and Cheung. Each of the conversations occurred in the absence of the applicant and were excluded from the evidence at the trial.

Meeting on 14 August 1998 at "Lucky Chan's Restaurant"

47. Cheung attended a meeting with Yau on 14 August 1998 at Lucky Chan's Restaurant, where Yau advised Cheung, that the applicant would help him with his "immigration problem" but that the fees would be "very high". Yau provided notes of "fees" to Cheung. These notes - so Yau said - had been compiled after discussion with the applicant. The contents of the notes of charges were as follows:

"1. Costs for Andrew and friend $17,000 plus $5,000 (legal fees included). 2. No need to call solicitor to assist this job because all job could be criminal case solicitor. 3. No discussion with Frank [that is Cheung]. They can manage this case if anything happened. 4. All advance payment (cash) before job started. 5. Must keep secret. No-one know this case. 6. If any complaint to Immigration, they will cancel job and no refund. 7. 90% successful. 10% depends on me. 8. If not approved by Immigration, Andrew will take 10% of the cost. 9. Andrew will advise all details for the application."

In addition Cheung agreed to pay Yau $4,000 for his assistance. Yau told Cheung that he required half of this sum "up front". The judge permitted the conversation at Lucky Chan's Restaurant, together with the notes made by Cheung, to go into evidence against the applicant pursuant to the "co-conspirator's rule", notwithstanding that the Crown was later to concede at the trial that it could not exclude the possibility that Yau was the person who received and retained most of the money which was later to be paid at the expense of the NCA.

52. On 7 September 1998 Cheung met Yau again at Plume's Restaurant. In the course of the conversation between them Cheung said at one stage:

"Including your share, altogether it is $26,500; do you understand it is a huge amount; even a faked marriage would not cost that much ..."

Cheung advised Yau that he had the money, namely $26,000, and the two of them made arrangements to visit the applicant's office at a later date to hand it over. Yau organized a meeting at the applicant's electoral office for 8 September 1998 at lunch time.

57. The money was supplied by the NCA on 8 September 1998. Cheung was given $26,000 in cash in a black laptop computer bag. Cheung placed $22,000 (that is $17,000 for the applicant and $5,000 for the "friend") in the main part of the bag, and $4,000 in a side pocket of the bag, ready to hand over to Yau. Cheung went under the surveillance of the NCA Surveillance Unit when he drove to Yau's house, collected him, and then drove to the applicant's office. A listening device had been placed in the computer bag with the money.

60. During the course of the drive from Yau's residence to Theophanous' office, Cheung handed Yau the $4,000 (Yau's share) and, inter alia, Cheung said to Yau that:

"Concerning these monies, I have divided them into two lots ... one lot is $5,000 and the other lot is $17,000. Your $4,000 has been put aside by me; altogether it is $26,000."

64. When they arrived at the applicant's office, the applicant met Yau and took the bag from him. Yau accompanied the applicant to one of the offices in the building whilst Cheung remained in the foyer. The applicant and Yau then had a conversation which was recorded by the listening device in the computer bag. It was accepted, however, that at various times Theophanous had left his office to go elsewhere. At one point there was a sound of the opening of a zip and the rustling of paper. At about 12.45 p.m. Yau left Theophanous' office. Initially he came out of the office without the bag, but Cheung advised him that he wanted the bag (which had the listening device in it). Yau then went back to the building and retrieved the bag which at that time was empty. The Crown conceded at trial that it could not exclude the possibility that Yau had stolen the money. During the meeting at the applicant's office, the applicant and Yau had discussed Chen. The applicant proposed that Chen should apply for a visitor's visa to come to Australia naming Cheung only as an associate. The applicant asked Yau if Cheung had had any dealings with immigration and Yau said that he had not. The applicant had told Yau to tell Cheung "to keep away from Immigration". He said "We'll get the forms" and that Chen was to say nothing about Cheung. He told Yau that after some two-and-a-half months following her arrival, Chen and Cheung "could get married" and say "they'd just met each other". He explained to Yau that she would not qualify for permanent residence until she had been here for two years and that they would have to stay together for that period in order for her to qualify.

67. It appeared to be the Crown's allegation that the conspiracy to defraud the Commonwealth, which was the subject of count 2, was complete as at this date; that is, 8 September 1998. As we will point out hereafter, the scope of the conspiracy and the time at which it was entered into was not articulated with any degree of precision. What occurred after 8 September 1998, as it seems to have been alleged, were the overt acts committed by the co-conspirators in performance of that conspiracy. That evidence included the following:

(a) The conversation between Yau and Cheung on 10 September 1998 in which Yau referred to Chen completing the visa application form and faxing it to Yau who would then take it to the applicant "for approval". Yau told Cheung that there would be no need for him to return to China.

(b) Thereafter, before the end of September 1998, Cheung, with the assistance of his controller, partially completed the application form and faxed it to Chen in China. Chen filled in additional information. The applicant drafted the terms of a letter for Yau to write to the Immigration authorities, indicating that he (Yau) would support Chen whilst she was in Australia, and that he would supply Chen's expenses.

(c) On 24 September 1998 there was a conversation on the telephone between Yau and the applicant, in which the applicant impressed upon Yau that he did not want Cheung or the other people whom he assisted to know about his involvement; nor did he want to see those people.

(d) Subsequently Yau signed a letter in support of Chen's application in similar terms to that drafted by Theophanous but added a sentence which indicated that Chen would have a business interest in Australia as the agent of a company which was named. The documents were ultimately put together by Cheung and the NCA and forwarded to Chen for lodgment at the Australian Embassy in Shanghai.

(e) There were other conversations in the month of September 1998 between Yau and Cheung relating to the finalization of the letter of support for Chen's application and the forwarding of those documents to her.

(f) In early October there was a conversation between the applicant and Yau in which they discussed the visit by Chen to the Embassy to lodge the application; in the course of the conversation the applicant stressed it was important that Chen not mention anything about Cheung.

(g) On 7 October 1998 Yau advised the applicant that DIMA had refused to accept Chen's application. This apparently was untrue as Chen had not attended the DIMA offices in Shanghai.

(h) On 8 October 1998 Yau and the applicant had a telephone conversation about the lodgment procedures for Chen's application. The applicant advised Yau that he had spoken to Todd Frew at the Australian Embassy in Beijing and that DIMA would process the application. Frew was the Chief Migration Officer in Beijing with the responsibility for China. The applicant had indeed had a discussion of some 20 minutes duration with Frew in which he had raised general issues about the administration of immigration policies in China, and in the course of which he raised the "Chen matter".

(i) On 9 October the applicant rang Yau and told him that he had arranged for Chen to attend the Embassy on 12 October to see a Senior Migration Officer, one David Wilkinson.

(j) On 12 October 1998 Chen attended the interview with Wilkinson and submitted her application for a visa. The application was refused because it included a letter from her "employer" stating that he agreed to give her leave of absence, and a further letter from a company, with which Yau was apparently associated, signed by Yau, and which referred to Chen's gaining knowledge of a "fish farming venture" in Australia with a view to acting as Yau's agent in China. Wilkinson had explained to Chen that the application that she had completed was for a tourism visa and that because of her stated intention to undertake business activities she should apply for a "temporary business entry (short stay) visa". He gave her the relevant forms.

(k) Chen faxed the form received from Wilkinson to Cheung. That form was completed by Cheung with the assistance of members of the NCA and faxed back to Chen. Chen then returned to the Embassy and submitted this new application form and the documents supporting it, which included the letter from Yau in both English and Chinese, and a letter from her brother-in-law. Wilkinson further interviewed Chen about this application through an interpreter. Wilkinson then contacted her brother-in-law whom she had nominated as her employer in China. The brother-in-law said he didn't know anything about it although he did state that she worked in a company which specialised in "handbags".

(l) On 13 October 1998 Cheung told Yau about Wilkinson's phone call to Chen's brother-in-law and complained to Yau that everything "was messed up" and "you must get Andrew to rectify the situation". Yau then rang the applicant and told him what had happened, and the applicant advised Yau what he should say if he was contacted about the application : namely, that Yau had invited Chen for a holiday. The applicant had no knowledge of what had occurred and was apparently still under the impression that Chen had applied for a visitor's visa.

(m) On 20 October 1998 the applicant telephoned Wilkinson who explained to the applicant the circumstances of Chen's approaches. He also informed the applicant that Chen had lodged a further application in respect of which he would be making a decision shortly.

(n) On 24 October 1998 Wilkinson sent a letter to Chen informing her that her application had been unsuccessful because she had failed to meet the prescribed criteria in Part 456 of the Migration Regulations, to the effect that she was to satisfy the Minister that her expressed intention "only to stay in Australia temporarily for business purposes" was genuine. The letter stated that Wilkinson did not find her claims credible and that, in any event, the amount of income she received for her job would be insufficient inducement to make her wish to return to China.

(o) On 25 October 1998 Yau received a telephone call from the applicant who informed Yau that he had received a fax stating that Chen's application had been rejected. The applicant stated that this was not "totally unexpected" given that the officers were making enquiries. The applicant told Yau that it was unusual for a DIMA officer to check by ringing Chen's employer and indicated that he would have to intervene. The applicant also stated that if they could not help Cheung with Chen's application then they would have to reimburse Cheung by giving him his money back.

(p) A copy of the letter of rejection of Chen's visa application was faxed to the applicant by Yau on 3 November 1998. The applicant then rang Yau and discussed the matter. The applicant was upset that Cheung had acted without his knowledge in making "a business visa application". Specifically the applicant said:

"If we are going to do business we can't have people doing things against my advice ... and in this case I didn't want her to apply for a temporary business visa at all, I wanted her to apply for a visitor's visa and it would have been easier to overcome it ... ".

(q) On 4 November 1998 the applicant rang David Wilkinson in Shanghai. Wilkinson confirmed the grounds for refusing the visa application that he had set out in his letter of rejection, to which the applicant responded that Chen's application was "a genuine one to visit friends in Australia and to broaden her business a bit". Wilkinson said that he regarded himself as having sufficient information to make the decision which he made notwithstanding that Chen clearly had "the support from yourself". Wilkinson referred to the unsatisfactory nature of the "business connection" and said that he was unable to simply make a decision on the basis of an assurance from somebody where the applicant cannot fulfil the "basic criteria". The applicant advised Wilkinson that if a further application was made he would support it with a further letter, and told Wilkinson that:

"In the last two years ... I have recommended very carefully a number of people for visitor's visas from China and that every single one has returned."

(r) Again, on 4 November 1998, the applicant rang Yau and advised him of his conversation with Wilkinson. They discussed the possibility of Cheung going to China to get married; but on the following day Yau rang the applicant and advised that Cheung was not willing.

(s) On 7 November 1998 the applicant spoke to Yau over the telephone and told him that "We have to prepare another story". He suggested that Yau came to his office so that they could talk to Chen from the office on the loud speaker phone.

(t) On 17 November 1998 the applicant, Yau and Cheung met at Plumes Restaurant. During the course of the conversation, they discussed the rejection of Chen's application by Wilkinson, in respect of which the applicant said that "That man behaved like a bastard anyway". The applicant said that Wilkinson had "tricked her". When Cheung said that the problem was that Yau's letter in support of the application referred to a "seafood business", the applicant replied that it was unfortunate that he did not "see that letter". The applicant then advised Yau and Cheung that a new application for a visitor's visa should be made and that he would provide a personal letter of support for it. He said:

"It's a very hard thing for me to do. I have to lie to them, you see."

In the course of the conversation the applicant further said the following:

"Well what happened is after this Wilkinson will never give me another case ... well obviously because I'm going to give him an assurance in writing that she is going to go back, understand ... When she comes we will say that she was introduced to you again, you fell in love. That's going to be our story."

The applicant sought from Cheung the level of Cheung's commitment to Chen. Cheung told the applicant that he needed someone "to come here very urgently to look after my son".

(u) During the course of the meeting referred to in the preceding sub-paragraph, Cheung telephoned Chen in China and spoke to her in Mandarin. Yau then spoke to Chen in Cantonese and then gave Chen pieces of advice at the applicant's instruction, including advice to tell DIMA that she was coming to Australia on a visit and would be visiting parts of Australia with some Chinese people organized by Yau. Yau was instructed by the applicant to tell Chen to say that she was coming here for a holiday to visit Yau's family as an old friend. Notwithstanding that Chen could not speak English, the applicant wanted to speak with her so that Chen could say that she had spoken to the applicant. And then he said to Yau:

"You tell her she's to tell them that you acted as interpreter, okay."

"Hello, how are you Miss Chen. Good. Well we're going to try to help you come to Australia, okay (laughing). Alright now Peter will explain what you say to them in Immigration. Okay. I'll put you back to Peter."

(v) Yau then told Chen that she should tell the authorities that she had spoken to "Dr. Andrew". Cheung had brought an Immigration form to the same meeting which the applicant had requested be filled in by Cheung. The form was then completed at the meeting. When Yau told the applicant about the wedding of David Choi's daughter which was to take place on 19 December 1998 the applicant suggested that this could be given as one of the reasons for Chen's visit. The applicant then instructed Cheung as to what he should write in the application form.

(w) On 22 November 1998 the applicant met Cheung and Yau at Plume's Restaurant for lunch where the applicant provided Cheung with a letter of support, dated 20 November 1998, which he had addressed to Mr. Wilkinson. In that letter the applicant had stated (inter alia):

"I have now undertaken quite an [extensive] inquiry - including a lengthy discussion with Miss Chen's sponsor, Mr. Peter Yau, and a discussion with her on the phone in which Mr. Yau acted as interpreter ... . He [Yau] and his wife are eager for Miss Chen to visit them and renew acquaintances. ... Another reason for the application is that the Yau family is keen that Miss Chen should be able to attend the wedding of a close friend about the 19 December ... After my discussion with Mr. Yau, whom I have known for some time, and with the young lady (over the phone) I am certain that she intends a genuine visit and there is no desire to stay for a longer period or to frustrate immigration laws."

(x) Yau also gave Cheung a letter dated 20 November 1998 on the letterhead of "Australian Sea Product Pty. Ltd." in which he stated that he was prepared to look after Chen whilst she was in Australia. His letter included the following:

"I would like to invite Miss Chen to visit my family and attend a wedding ceremony of our common close friend's daughter on 19 December 1998. I have no hesitation to provide Miss Chen accommodation and travelling expenses in Australia ... I am assuring you that Miss Chen has no intention to stay in Australia for a period longer than three months."

(y) The visa application form as completed was sent to Chen on 4 December 1998 by courier; and the application was supported by the personal letter of assurance from the applicant on official letterhead, and the letter of Yau.

(z) The relevant Migration Regulations which operated at the time and were applicable to "short-term tourist visas" listed a number of criteria to be satisfied before an application could be granted. These criteria included the need for "the applicant [to satisfy] the Minister that the expressed intention of the applicant only to visit Australia is genuine". This was important in respect of applicants who were subject to "risk factors" (as were females from mainland China aged 25 years or older). In such circumstances, it was necessary for the applicant to satisfy DIMA that "there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry".

(aa) On 11 December 1998 the applicant made a phone call to the Australian Consulate in Shanghai in which he made an appointment for Chen to attend the Consulate on 14 December 1998. Cheung transmitted $4,800 (approx) to Chen, which he had been given by the NCA. Chen attended the Consulate on 14 December where she produced her forms. She was interviewed on 16 December 1998 by Wilkinson who asked her why "her primary intention in her first application was for business reasons and why she had now changed to asking for a visitor's visa".

(bb) On 16 December 1998 the applicant spoke to the Minister for Immigration (the Rt. Hon. Philip Ruddock) by telephone about the matter and another matter relating to a friend of Yau. The applicant complained about Wilkinson's advising Chen to apply for a business visa and then rejecting her. The applicant asserted to the Minister that Chen had no underlying purpose of remaining in Australia.

(cc) On 17 December 1998 the applicant rang Wilkinson in relation to the application and gave a further assurance that "he was satisfied" the application was "a genuine one". Notwithstanding such assurance, Wilkinson, on the same day, made a decision to reject the application.

(dd) On 19 December 1998 the applicant met with Cheung and Yau following the wedding of Choi's daughter. They discussed the rejection of Chen's application. Inter alia, the applicant said:

"... For whatever reason he (that is Wilkinson) didn't like her. These bastards are subjective you know. They have the ability to reject people merely if they like him or not. See. " "... Now that was one thing for me to get commitment at that level but I didn't mind. I didn't mind misleading that ... bastard because he's a bastard, he's a racist ..."

(ee) The applicant and Yau, during the course of this meeting, had a disagreement over how much money the applicant had received to assist Cheung with his problem. When Cheung referred to having paid $22,000, the applicant denied having received that sort of money from Yau. Indeed he said "I didn't get anything like that" and then asked Yau if he had got that money. Yau indicated that he had the money. The applicant then told Cheung that he would return to Yau what Yau had given him. The applicant said, in evidence, he was referring to "expenses" of $1,000 given to Yau and $120 to him.

(ff) On 21 December 1998 the applicant rang Yau and told him, inter alia, that he (Yau) "would have to do something about what Cheung had given [Yau]".

(gg) On 22 December 1998 the applicant met Cheung. They discussed the money which had been taken into the applicant's office on 8 September 1998. Cheung told the applicant about the return of some of the money by Yau. The applicant stated that if Cheung's case was unsuccessful then he would get all of his money back, and further said that if Cheung had not told him about the money, he wouldn't have got anything back. The applicant told Cheung that he did not have to pay any more money for Chen's case, only some "expenses". Cheung then handed $4,000 to the applicant. The applicant, in evidence, said that he had taken this $4,000 from Cheung because he assumed, from what he had been told, that it belonged to Yau who had been "forced out of it". Yau had later told him that he wanted the applicant to "hold onto it". The applicant told Cheung there were only two ways in which they could still bring Chen to Australia. The first was for him (that is the applicant) to speak to the Minister about it and get him to give a personal assurance in relation to the application. If that was successful they could pursue the idea of having Cheung meet her and a relationship developing. The second way was for Cheung to travel to Vanuatu and for she and Cheung to marry there. The applicant stated that he didn't like the second option and suggested the following:

"So what we are going to do - I'm going to ring the Minister ... trying to get her here, that means I give my word, I have to give my word to the Minister ... to lie to the Minister that's what I'd do."

"You lie to the Minister, the Minister will be very shitty to you in the future."

"That's why I appreciate your generosity in the matter."

(hh) In January 1999 the applicant rang one Peter Thomson, who was the Departmental Liaison Officer in the office of the Immigration Minister. The applicant complained about Wilkinson's treatment of Chen's applications. Inter alia, he said that he had spoken to Wilkinson, that Wilkinson had said that he (the applicant) had to satisfy himself that she was a genuine person. Accordingly, so said the applicant:

"... . I went to extraordinary lengths in this matter, I spoke to the sponsors here, I spoke to the woman through an interpreter; I went to absolutely extraordinary lengths and I wrote in writing, I gave him my personal assurance in relation to this matter ... . What's going on in these Embassies ... I've never ... such appalling behaviour and I can tell you this I want an explanation of the whole matter. Otherwise I'm going to name him in Parliament and I'm going to raise this whole question about Chinese visitors' visas."

The applicant told Thomson that he believed that Chen's applications had been rejected because of his (that is the applicant's) intervention in the process. He said that he believed that the rejection of the application reflected the bias of the immigration officers against him.

Thereafter, on 11 January 1999, the applicant faxed information about Chen to Thomson, including two facsimiles from the applicant to Wilkinson in relation to the rejection of Chen's application.

(ii) On 25 January 1999 the applicant told Cheung that he was very concerned that Yau would try to blackmail both himself and Cheung, or either of them, because of the information that Yau had about them. He told Cheung that he had come to the view that Yau "was playing you against me and was trying to get a lot of money out of you and only give me a little bit". He further said that "if I don't succeed, I've said to you, I give you your money back".

(jj) On 9 February 1999 the applicant met with the Minister and Thomson in Canberra to discuss the Chen case and another case. According to the evidence of the Minister, given at trial, his recollection was that:

"(The applicant) gave me his personal assurance that he had made further enquiries in relation to the bona fides of the family and was quite convinced that it was a genuine visit that was intended."

"That a person would come here for the purpose of undertaking a visit and leave Australia at the end of the term of the visa ... ."

(kk) On 22 February 1999 the applicant proposed to Cheung that if Yau was to return $6,000 to Cheung of the $26,000 paid, then:

"we were to split in half 10-10 ... . You see, I said 10, you've got to give me he gave me a little bit but he still owes me more for the 10."

The applicant's evidence was that he was "leading Cheung along".

125. The foregoing was the thrust of the evidence led in the Crown case against the applicant in respect of the conspiracy alleged in count 2. Although many of the conversations upon which the Crown relied contain material to suggest that the applicant expected, or indeed received, some payment in respect of his services with regard to the processing of Chen's application, it was accepted by the Crown that it was not the receipt of money which was specifically relevant to the offence alleged in count 2; but rather what was of relevance was proof of an agreement to defraud the Commonwealth by inducing the DIMA officers to grant a tourist visa to Miss Chen by falsely representing to them that she would comply with the terms of the visa. It was the applicant's defence of the charge alleged in count 2 that he was not a party to such an agreement.

130. There was no real dispute as to the accuracy of the transcriptions of recorded conversations. What was in issue was the state of mind of the applicant when he made the various utterances to which we have referred in the preceding paragraphs. It was the applicant's evidence that his dealings with the Department of Immigration had led him to regard their practices to be discriminatory and improper and to justify him lending his assistance to those persons who, for genuine reasons, wished to enter Australia on a temporary basis. In the course of his evidence the applicant stated that it was his view that the Department adopted rules and practices which undermined the intention of the Parliament and operated as a discriminatory system, as a result of which applicants for visitor's visas in some countries did not have to go to immigration offices at all, whereas, if the applicant was seeking to come from mainland China or Lebanon or a number of eastern European countries, it was necessary to apply to an immigration office. He said that the practices followed by the Department forced people into impossible circumstances because, if an applicant for a tourist visa was coming from China because she was interested in pursuing a relationship with a person in this country, she could not afford to disclose that interest even if they were not sure of the commitment. They either had to "say nothing" or say "yes we are definitely getting married" and then apply for "a prospective spouse visa". Such a situation contorted the system, according to the applicant, because it forced an applicant for a visitor's visa to suppress an actual or potential possibility or intention.

133. One of the applicant's Parliamentary colleagues, Mr. Martin Ferguson, gave evidence at the trial that he had spoken to the applicant on 29 September 1998 to tell him that his "political opponents" and the Department were monitoring his (the applicant's) activities in relation to immigration, including taking notes of his phone calls. In this respect the applicant said that he thought it was just part of the "general political battle" that he was having with the Department and the Government on immigration issues. Nevertheless he was somewhat concerned about the possibility of "dirty tricks" being used by his political opponents.

136. The applicant admitted in evidence that the material presented to the departmental officer assessing the visa application of Miss Chen was "incomplete" and that he knew her purpose of coming to Australia was to explore the possibility of a relationship with Cheung. He gave evidence that people had the right to come under a visitor's visa and to apply for a new visa whilst they were in Australia, that that was enshrined in the legislation, and that an application by a person who contemplated that he or she might make a new application whilst in Australia were nonetheless "genuine applicants". He regarded the purpose of Chen coming to Australia to be "to see if she and Cheung were compatible and could form a relationship". Nevertheless, his evidence was that he did not know whether Cheung's intentions would turn out to be genuine. He had an initial belief that there was a possibility of a relationship but had evidence to the contrary. Nevertheless be believed that there was a lawful entitlement for people on a visitor's visa to find out if such a relationship was possible.

139. The applicant said there were three factors that influenced him to support the second "visitor's visa" application. First, the conversations he had had with a Lucy Wang; secondly the behaviour of Wilkinson in changing the first application to a business visa application and then rejecting it; and, finally, balancing the rights of Chen with his later knowledge of the intentions and behaviour of Cheung.

142. The applicant said that in respect of "money", Yau had given him $120 in late September to reimburse him for his personal expenses in relation to some documents that he requested for Chen. The applicant said that by mid-October, when Yau had shown him the application form for Chen, as filled in by Cheung, he was surprised to see the name of Cheung filled in on the form as "Keith Jeung". He said that he had become suspicious and asked Yau whether he had received any money from Cheung. Yau had told him that he had received $1,000 which had been given to him as expenses for looking after Chen when she arrived. The applicant had insisted that Yau give Cheung a receipt for this money and that he bring him a copy of that receipt. This was done.

Count 3 - Defrauding the Commonwealth relating to the Permanent Residency Application by Li Hon Cheung (aka John Jang)

147. It was the Crown case that the applicant had defrauded the Commonwealth by falsely representing to department officers that the marriage relationship between John Jang and his wife was ongoing when it was not. The ongoing nature of the relationship was a requirement for the approval of permanent residency applications.

150. On 19 December 1996 John Jang had lodged an application to remain permanently in Australia under the "spouse 801 sub-class of the General (Residence) Class". John Jang was born on 16 April 1954 in Canton and had left China for Hong Kong in 1972; coming to Australia on a two week visit in May 1982. He did not return to Hong Kong but remained in Australia, living in Melbourne until 1989 when he moved to Cairns. He worked in restaurants in Melbourne and Cairns and eventually began to run his own restaurant in 1991 in Cairns. In 1995 he married an Australian citizen of Vietnamese extraction (known as "Rose"); and it was Rose who was the nominated sponsor of his application for permanent residency. The applicant had signed the application for permanent residency as a witness to the signatures of John Jang and his wife.

153. The Migration Regulations set out the criteria which have to be satisfied at the time of making a decision on a "spouse 801 sub-class of General (Residence) Class". Inter alia, the criteria include the requirement that the applicant continue to be nominated for the grant of the sub-class 801 visa by the nominating spouse; that the applicant is the spouse of the nominating spouse; and that "subject to sub-clause 7" at least two years has passed since the application was made. In the case of John Jang the period of "at least two years", referred to in the requirements, was due to have passed on 19 December 1998.

156. In early December the applicant received two voice mail messages from John Jang advising him (the applicant) that John Jang's wife had left him and the two children on that day (2 December). On 4 December 1998 John Jang had rung the applicant and told him that his wife was selling his shop and that if he did not pay her there would be trouble. The applicant had said that "even after the 19th she can do something if she wants to - this matter will be resolved one way or the other - see the 19th is not far away ... So if she says she left you before the 19th we say it's not true and we'll say she left after - who's to know?" (It should be noted that this conversation, or its interpretation, was very much in dispute at the trial.)

159. The applicant had told his own wife on 4 December 1998 that John Jang had been threatened by his wife; that Jang's wife knew that 19 December 1998 was an important date in relation to the husband's visa application and that she was trying to blackmail him in relation to it. [The applicant's wife gave evidence at the trial.]

162. On 21 December 1998 the applicant spoke to one John Fensling of the Department about John Jang's permanent residency application. Fensling advised that John Jang would get permanent residency at the end of two years if his relationship with the nominating spouse was ongoing. The applicant assured him that it was ongoing and that they had two children born in Australia. Fensling indicated that that was good evidence and that John Jang would be sent a letter about permanent residency procedures and outlined the types of documents which John Jang would need to provide as evidence that he and his wife were still together. The applicant's evidence was, in relation to this phone call, that he was merely repeating the criteria given to him by Mr. Fensling. He further gave evidence that there had been intervening phone calls between himself and Jang in which he was informed that the wife had returned to the family house.

165. Late on 21 December 1998 the applicant rang John Jang telling him that he would have to prepare some paperwork signed by himself and his wife to show that they were still married and living together; and that he might have to give his wife one of his properties or businesses so that she would do it.

168. On 27 December 1998 John Jang rang the applicant and told him that, although his wife had left him a week beforehand, she was still going to the shop, and was still stealing from the till. In a further conversation on 30 December 1998 they discussed the fact that after the application had been approved, there would be papers which the wife would have to sign; the applicant said he would have to persuade her to sign.

171. The applicant telephoned John McLauchlan, the DIMA officer handling John Jang's application on 6 January 1999. They discussed the approval of John Jang's application and the applicant advised that he knew John Jang well, had attended his wedding and had seen the birth of his two children. The applicant asked whether a statement about his marriage and children would be required. The officer advised that due to the fact that he had spoken to the applicant, that had all been covered.

174. On 11 January 1999 the applicant received a fax from the departmental officer (McLauchlan) regarding the application for a permanent visa in the spouse 801 sub-class of General (Residence) Class. The facsimile attached a letter from the officer to John Jang which stated that his application "had been successful" and had been granted a permanent visa on 11 January 1999. Thereafter the applicant rang John Jang and advised him that his application had been approved without the need to submit a document signed by his wife.

177. On 13 January 1999 the applicant advised John Jang not to report his wife as missing as it may jeopardise his immigration status. He stated that "they'll ask a lot of questions and Immigration might find out about it. What we'll do is just pretend as if everything's alright and just won't talk to people too much, okay". The applicant further told John Jang that he had saved him "about $60,000" because "that's what she would have demanded from you to sign the paper".

180. The departmental officer (McLauchlan) gave evidence that the basis of his decision to grant the permanent residence status was his conversation with the applicant on 6 January 1999. He also said that, if he had been aware that there was difficulty in the relationship between John Jang and his wife, he would not have made the decision he did.

183. When he was formally interviewed by NCA investigators on 5 May 1999, the applicant denied making any false representations to the Department in respect of John Jang. He claimed that he knew there were some marriage problems, that John Jang's wife had left and come back, and that he became aware in about January 1999 that she had left.

The Applicant's Defence in respect of Count 3

188. The applicant gave evidence of his relationship with John Jang over a period of some nine years. In respect of his conversation with Fensling on 21 December 1998, he asserted that by referring to the relationship as "ongoing" he was simply repeating the criteria given to him by Fensling. So far as his conversation with McLauchlan on 6 January 1999 was concerned, he said that he was surprised that it had not been necessary to complete a statement.

191. With respect to his conversation with John Jang on 13 January 1999, the applicant said that at the time he still thought that John Jang was deeply in love with his wife and that he had told him to tell his wife to return home; but that if she did not return John Jang was to tell her to contact the applicant and he would talk to her. Insofar as he had told John Jang that he had saved him "$60,000", he was simply "bragging". Furthermore he said that he was quite satisfied right up until the end of January that the marriage of John Jang and his wife could be saved.

Counts 5 and 6 - Bribery Charges relating to Liu Zhou Hui and Huang Jing He

195. Count 5 related to two Chinese persons who had "overstayed" their visas. The Crown allegation was that the applicant had received $2,000 from Cheung on behalf of these two Chinese citizens for assistance to remain in Australia. In respect of the second of these counts, namely count 6, it was the Crown allegation that the applicant had agreed to ask for bribes in relation to the exercise of his duty or authority as a Member of Parliament in respect of future immigration cases.

198. On 6 November 1998 Cheung told Yau about two friends who had overstayed their visas (a man named Cao and his wife Liu Zhou Hui) and requested Yau to ask the applicant if he could assist.

201. On 22 December 1998 Cheung met the applicant at the applicant's office and discussed these matters. The applicant asked for some information about the people involved but no amounts were decided upon in relation to what they would have to pay.

204. On 4 January 1999 Cheung contacted the applicant and arranged a meeting for 5.30 that evening. The meeting took place in the applicant's car and was recorded by Cheung. Cheung explained that there were two people who needed assistance. The first was Liu Zhou Hui, one of the people he had spoken about before; and the second was Huang Jing He who had arrived in Australia on a tourist visa on 22 July 1997 and had "overstayed". Cheung further explained that Cao no longer wanted any assistance. Departmental records show that Liu and Cao entered Australia on 19 April 1998 on short term visas which expired on 19 July 1998. Huang had arrived on 22 July 1997 on a short term visa which expired on 22 August 1997. Upon expiration of their visas, those persons had become unlawful non-citizens.

207. Cheung had $2,000 which had been given to him by the NCA. He told the applicant that there was $1,000 for the woman (that is Liu) and $1,000 for the man (that is Huang). This money was handed over to the applicant for the purpose of initiating assistance for them. The applicant was reluctant to accept the money at that stage, and told Cheung that he would rather have the details about their situations first, so that he could decide whether or not he could help them. He did, however, accept the money and counted it in front of Cheung and then said "I'll keep it". In the course of his evidence in relation to the acceptance of this money, the applicant said he believed that either the money had been from real people or that Cheung was lying to him about taking money. He decided that he would have to "fix the situation" and investigate what was happening. He believed that if he did not accept the money he would have a lot of explaining to do; but he did not take it for the purposes of making a personal profit.

210. The applicant asked Cheung what he had told Liu and Huang about the fees they would have to pay. Cheung told him that he had said to them that they would be getting $2,000 for "his work" and that the rest of the $20,000 would be fees to other people, whom he did not name.

213. Huang had been interviewed by department officials on 3 December 1998. He advised the Department that he had applied for a visa on his Chinese passport and had been rejected. He said that he had got a second passport through a tour group which he used to enter Australia. The tour group had retained the second passport. This information had been conveyed to the applicant by Cheung. The applicant told Cheung that the case of Huang was "pretty hopeless" and that they might be able to delay Huang's deportation from Australia for some two years by following through the appeal procedures available. He suggested that if it was possible during that two year period, Huang should get a divorce from his wife in China and they could "marry him off" to an Australian citizen.

216. In the light of the difficulties which Huang's case presented, and the strong probability that he would ultimately be deported, the applicant discussed whether or not the case should be taken on. The applicant said "Now we have to make a decision here as friends, do we give him back his $1,000 or do we say to him alright". The applicant went on to say the following:

"... If he's saying to you that he is prepared to pay up to $20,000 if we succeed, then we can say to him; well look, okay if we succeed you get your delay for two years then that say the cost of that will be, let's say $3,000 to be reasonable or 4, O.K. ... Let's say that we say $3,000 for delay for two years plus then he gets a divorce and then if he's prepared to co-operate say six months or nine months later he gets married again here, then we apply for him to stay on the basis of the marriage."

220. The applicant told Cheung that Huang would have to pay $3,000 first and that he would help Huang on one condition: namely that Huang did not tell anybody about dealing with Cheung in respect of the matter. The applicant criticised Cheung for giving Huang his name (i.e. Dr. Andrew) on the phone and told Cheung that it should be a rule with everybody whom Cheung assisted that "if you are going to be able to continue to do some of these exercises you've got to have people who shut their mouth".

223. Cheung and the applicant then discussed Liu's case. Cheung indicated that she had come to Australia as part of a tour for three months but had left the tour in Australia and the travel agent had retained her passport.

226. On 25 January 1999, whilst discussing assistance to immigrants in general, the applicant told Cheung about the dangers and illegality involved and stated that "If we get into any trouble between you and me we will have to deny everything". He insisted that Cheung not tell assisted migrants that he was a Member of Parliament, but suggested that Cheung tell them that his "friend" was an immigration agent. The applicant also advised Cheung that it was illegal to give immigration assistance if not a registered agent. The applicant said that they should never "discuss money on the telephone" and that they must use codes. The applicant stated that he only wanted to "handle cases" that could be fixed within the Department without having to go to the Minister. The discussion ended with the applicant saying what was to occur in respect of future cases:

"I am happy to have a reasonable arrangement with you, okay. If the cases, if the case is relatively easy, okay we can charge them only about $7,000; if its easy and we can give you ... would you say its between $7,000 and $15,000 depending upon how easy or difficult that is, okay ... If its seven, you'll get $1,500 and if its $10,000, you'll get $2,000, and if its $15,000, you'll get $3,000, right ... But what we've got to do is we've got to make sure no one finds out about our arrangement."

230. The applicant said that no money was to be paid until he and Cheung had had an opportunity to assess the papers to decide whether or not to take the case on. He considered that Huang's chances of being able to remain in Australia permanently were slight, and during a discussion with Cheung on 25 January 1999, he outlined his view that Huang would be rejected first by the Department, and then the Tribunal and it was then that they would need to decide whether to go to the Minister, at which time they would need to "ensure that they had been paid".

233. On 7 February 1999 Cheung had a meeting with the applicant. Cheung told him that Huang did not want any assistance with his refugee application and wanted to leave the matter in the hands of his lawyers. They then discussed whether the money that Huang had paid to Cheung and which the applicant had received from Cheung needed to be returned. The applicant asked Cheung whether Huang knew anything about him (that is the applicant) and when Cheung advised him that he did not, the applicant told him to tell Huang that he would not be reimbursed because of the work which had already been done on his behalf. The applicant told Cheung that he would give him back $300 out of the money that Cheung had given him from Huang. Having confirmed with Cheung that Huang believed he had given the money to Cheung, the applicant said:

"Well you can say look fair enough; I did a lot of work for this you know, so I'll give you ... did he give you $2,000 or $1,000? ... Just say bad luck $1,000 you know, what's a $1,000. It's - he goes to a lawyer for a couple of hours, if he makes trouble then come back and talk to me again, right, but in the meantime I will give you the $300."

237. Cheung and the applicant then discussed the matter of Liu. Cheung told the applicant that she could not pay more than $100 a week to be assisted. After some discussion the applicant told Cheung that she would be charged $5,000 in total but she would have her money reimbursed if her application was unsuccessful. The applicant further discussed whether Liu would be prepared to have sex with him in return for his assistance. He said that if "she is prepared to have some times with me but keep her mouth shut completely then we'll do it for $100 for a year". There were further discussions about these proposals; and on 22 February 1999 Cheung again met the applicant at his office where they further discussed the types of cases which they would "take on" in the future.

240. When later interviewed by the NCA, the applicant declined to comment in relation to the allegations concerning Liu and Huang.

243. Mr. Cao and Miss Liu gave evidence at the trial. Liu said that she and her husband Cao met Cheung through a friend. She said that Cheung told them that he knew a Member of Parliament who may be able to assist them remain in Australia on a long term basis, but it would cost up to $12,000. As she and her husband did not have sufficient money Cheung offered to pay for them, but they were to repay him on a weekly basis. Cao told the court that Cheung had told them that the Member of Parliament had said it would cost more than $10,000 to stay. Cheung also told him that the Member wanted to meet Ms Liu and he provided the Member's address to Ms Liu.

246. Huang had returned to China by the time of the trial and was unable to be located. By agreement his statement was read into evidence. He said that in November 1998 he had been arrested by immigration officials, and that on 3 December 1998 he applied for a protection visa. He said that in early 1999 Cheung said that he knew a senior official who could assist him to become a permanent resident but that it would cost more than $10,000 which would not be payable until the application was successful. He said that he initially agreed to this. About one and a half months later Cheung told him that he (that is Huang) had to pay $1,000 "up front" and the total cost might exceed $20,000. He stated that Cheung had claimed that he had already paid the $1,000 and sought reimbursement. Huang stated that he refused to pay Cheung $1,000 without sighting a receipt and that, if Cheung did not give him a receipt, he would not pay the $1,000.

The Case made by the Applicant at Trial in respect of Counts 5 and 6

251. In its essence, the applicant's defence to counts 5 and 6 was that the incriminating conversations between himself and Cheung were to be explained by the fact that he had, by then, realized that Cheung was a convicted criminal who had made a number of inconsistent statements, and that he was therefore trying to find out who Cheung associated with as he believed that he may be associated with one of his political enemies in the Labor Party. Thus, in effect, he was "playing him along". The applicant gave evidence of an ongoing political battle between he and his family on the one hand and forces associated with another faction of the Australian Labor Party. He gave evidence that by 18 February 1999 he had formed the view that Cheung was associated with his political enemies and that he "tried to draw this out, find out what was happening". He had "started to think that maybe some people were feeding false information to the Department ... and I thought Cheung was obviously on some agenda. It wasn't likely to be from Immigration, so I thought it must be from my political enemies."

254. When asked about the alleged "future cases" (count 6) the applicant said that:

"Cheung had given me the impression that he wanted to set me up by involving me in various immigration cases, and for money; and we actually discussed this. ... There has hardly been any follow through in terms of this and I thought it was important that there be some follow through in order for me to get to the bottom and who it was connected with, who he was dealing with ... And I was at this point thinking, well I'll talk to him again and see whether or not he's going to actually, you know, boost up the agenda and then see whether or not he would provide me with any people or information or anything at all that I could determine where he had been coming from and why he had made the statements and tried to entangle me on the 19 December."

The applicant had given evidence that he made a number of enquiries about Cheung at the Victoria Market with his wife. He had also made enquiries in relation to the business of "Tasmanian Sea Food Pty. Ltd." which company Cheung had said he had dealings with. These enquiries, he said, were an attempt to find out "who was behind Cheung".

260. In broad form this was the evidence upon which the jury convicted the applicant of the offences alleged in counts 2,.3, 5 and 6. He seeks leave to appeal against those convictions on a large number of grounds, which were reduced to manageable proportions by Mr. Shirrefs and Dr. Bleechmore, who appeared for the applicant upon the hearing of the appeal. In all, 26 grounds were taken in respect of the application for leave to appeal against conviction, some contained in the original notice of application and others added at various times pursuant to leave granted by the Registrar. Of these, 13 were abandoned at the outset of the hearing. The remaining grounds of appeal were argued in "groups", some of which were argued by senior counsel and some of which (with the leave of the Court) were argued by junior counsel. Those which were argued were as follows:

Ground 16 - that "the trial miscarried when in breach of s.16(3) of the Parliamentary Privileges Act 1987 (Cth.), the applicant was questioned about speeches that he made in the Federal Parliament".

Grounds 1A, 1B and 11 - that the judge erred "in failing to permanently stay the trial of count 2 on the Indictment on the basis that the evidence in support of the count was unfairly or unlawfully obtained"; the contention being that the judge should have removed this count from the jury's consideration in conformity with the principles established in Ridgeway v. The Queen[1]; namely that the offence or an element of it had been procured by unlawful conduct on the part of the law enforcement officers.

Grounds 5A, 5B, 12 and 13 - namely that "the learned judge erred in failing to exclude evidence of Liu and Huang in respect of counts 5 and 6 in accordance with the principles of Ridgeway v. The Queen (supra); and that the judge was in error in failing to order a permanent stay of proceedings in respect of counts 5 and 6".

Grounds 9 and 17 - under cover of these grounds it was contended that the learned judge erred "in directing the jury concerning the evidence of conspiracy (alleged in count 2) and, in particular, the directions concerning dishonesty were insufficient. It was further contended that the judge was in error in directing the jury that the applicant's belief that Chen would leave Australia upon the expiration of her tourist visa was irrelevant to their deliberations on count 2".

Grounds 14 and 15 - Under cover of these grounds it was contended that the verdicts on counts 5 and 6 should be set aside on the ground that they are unreasonable or cannot be supported by the evidence; the contention being that the evidence was insufficient to permit the jury to find the existence of the relevant "understanding" required by s.73A of the Crimes Act; and that the learned judge had erred in failing to direct the jury that the meaning of "understanding" for the purposes of s.73A included the mutual understanding of the applicant and the person from whom the money was obtained.

Ground 20 - namely that the trial judge erred in concluding that the circumstances under which the NCA officers obtained warrants pursuant to s.12G(2) of the Australian Federal Police Act 1979 (Cth.) did not constitute lack of good faith or a deliberate disregard of the law.

Although Ground 18 - namely that the learned trial judge had misdirected the jury on circumstantial evidence and the drawing of inferences - was initially pursued, senior counsel for the applicant did not persist with it upon the hearing of the appeal.

No appeal ground directly attacked the jury's verdict on count 3, or the evidence which supported it (ground 22 having been abandoned). It was submitted on the applicant's behalf that, in the event that this Court concluded that ground 16 (breach of Parliamentary Privilege) had been made out, it should conclude that the verdict on count 3 should also be set aside.

272. This ground asserts that the trial of the applicant miscarried when, during the course of his examination-in-chief and cross-examination, he was questioned about speeches which he had made in the Commonwealth Parliament. It was contended that the evidence so adduced offended s.16(3) of the Parliamentary Privileges Act 1987 (Cth.) and was, therefore, unlawful. It was further submitted that the admission of this evidence (albeit inadvertent) caused the trial of the applicant to miscarry in a fundamental respect in the sense that the proviso to s.568(1) of the Crimes Act 1958 (Vic.) can have no application. These consequences are said to follow notwithstanding that it was the applicant who chose, during the course of his evidence-in-chief, to refer to and put before the court certain statements which he had made in the Parliament for the purposes of emphasizing a central plank of his defence; namely, that he had at all material times been passionate in his belief that the immigration laws, including the regulations, were being applied discriminately against those seeking entry into Australia from countries such as China.

275. No issue was raised at the trial concerning the admissibility of the evidence to which we have referred in the preceding paragraph. Indeed, trial counsel for the applicant was content that reports of parliamentary debates in which the applicant participated be tendered in evidence. In particular, there was put before the jury (as Exhibit 16) a speech which the applicant had made to the Parliament on 2 December 1998. No "alarm bells" appeared to have rung in the minds of counsel or the judge either whilst these matters were being referred to by the applicant in the course of his evidence-in-chief, nor whilst he was being cross-examined by the prosecutor. Indeed it was not until December 2002, when the applicant applied to this Court for bail pending the hearing and determination of the appeal, that the matter of breach of privilege appears to have entered the consciousness of those advising the applicant. On that occasion the Court was informed that the applicant proposed to seek leave to amend the grounds of appeal to assert that the trial had miscarried as a consequence of such a breach.

278. At the trial, the issue appears to have arisen in the following way. The applicant commenced to give evidence on the 27th day of the hearing. That evidence was to continue for eight days, most of which was consumed by the applicant's evidence-in-chief. In the course of that evidence, the applicant referred to the fact that, as a parliamentarian, he had for a long period been critical of the manner in which the Department of Immigration had enforced its visa regulations in respect of, inter alia, female applicants coming from China. He had with him extracts of various speeches that he had made in the House which had been reported in Hansard and they were handed to him by his counsel. They were five in number, spanning a period of some four years between 1994 and 1998, and they included the Hansard text of 2 December 1998 reporting an exchange of views between the applicant on the one hand and Mr. Ruddock, then the Minister, on the other. In referring to that exchange, the applicant said, whilst giving evidence, that he had "started to attack the administration of the Immigration Department and Mr. Ruddock investigating and so on ...". He then went on to refer to an extract of his speech in the Parliament appearing in the Hansard extract for 2 December 1998, in which he was reported to have said:

"You can talk to any member about the cases which they have tried to get through in terms of overseas missions. We have had situations - in a country that I will not name - where I had to send a person to the Embassy four times in order to get the form to apply for a visitor's visa. Why? This particular country has an instruction from the Minister that visitor's visas are to be so scrutinised that it is virtually impossible for people to get here."

The applicant, having referred to that passage, went on in his evidence to say:

"That was an exaggeration, but effectively it refers to the goings and comings of Ms. Chen Qing to go and get the application and put in the visitor's visa ..." [i.e. the subject matter of the conspiracy alleged in count 2].

The extract of the applicant's speech to the Parliament on 2 December 1998 was then tendered and, as we have previously noted, became Exhibit 16 in the proceedings.

285. The evidence-in-chief of the applicant attracted cross-examination by the prosecutor. At the outset of that cross-examination the prosecutor asked the applicant whether he had taken an Oath to the Parliament when he became a Member, and having done so asked a number of questions seeking to attack the credibility of the applicant on the basis that he had not acted honestly, but had misled the Parliament in the remarks that he had made to the House on 2 December 1998. Having extracted the concession from the applicant that it was not "appropriate to tell a lie or otherwise to mislead Parliament", the cross-examination continued:

"You admitted, didn't you, yesterday you had done that in respect of Chen Qing. Answer: Yes. Question: Could we have a look please at Exhibit 16? You recall you referred to this speech that you gave to the Parliament of Australia? Answer: Yes. Question: On 2 December 1998, correct? Answer: Yes. Question: In it you describe to the jury that you made some reference to Miss Chen Qing. Is that correct or not? Answer: I didn't name her. ... Question: No, not the speech, but you were referring in the speech to Miss Chen Qing when you made certain remarks, weren't you? Answer: Yes. Question: You didn't tell the Parliament the truth, did you, in those remarks about Chen Qing? Answer: Would you want to read out the paragraph where I did. Question: Let me just test your recollection. Did you tell lies to the Parliament? Answer: No, I didn't. Question: About Chen Qing? Answer: No, I didn't. That is my recollection. ... Question: What you said to the jury yesterday, was it in respect of remarks you made about Chen Qing, that was `a bit of an exaggeration'. Do you recall now? Answer: Yes. Question: What do you mean by that? Answer: I see now. We have to define an exaggeration. Question: Will I have to define exaggeration for you? Can you answer straight? Answer: There is a difference between a lie and an exaggeration, sir. Question: You tell us the difference and tell us what you meant when you told the jury that was an exaggeration; that was my question? Answer: Alright. I mentioned the fact that I had been told that Miss Chen Qing had gone to the Embassy and had not been given an application form, and I referred to in that speech - and in fact I had been told I think that she'd gone twice and not been given an application form, and that I think I used the word `several times' or something like that - so that was an exaggeration."

The questioning continued along the same lines for some little time. The prosecutor again read from the extract of Hansard which the applicant admitted was "an exaggeration" and then put to the witness "That statement was false, was it not?". The witness said that it was "in strict terms". The applicant conceded that he had "worded it wrongly in terms of actual facts", but that he was "trying to talk about the general point". He further said that he was "not making a conscious lie ... . I was referring to the issue in the heat of the moment and I put it that way. I was not deliberately setting out to lie to the Parliament as you are suggesting." The prosecutor continued with this line of questioning, suggesting to the applicant that "an exaggeration" amounted to a "deliberately false statement"; and the applicant contending that it did not amount to a "deliberately false statement" or a "lie".

291. The cross-examination to which we have referred in the preceding paragraph covers approximately eight pages of the transcript, following which the cross-examination continued for another day and a half. The so-called "exaggeration" was not referred to, specifically, in the closing addresses of counsel, nor in the judge's charge. Insofar as there was any oblique reference to the speeches made by the applicant in the Parliament, it came in the closing address of his own counsel who told the jury that they had in evidence as exhibits a number of the speeches or comments that had been made by the applicant in the Parliament. In respect of those, counsel said:

"Whether you feel the need to go specifically to those or not is entirely a matter for yourselves. But in any event they really or, I would suggest, go towards demonstrating this particular central position, which is this man had very strong feelings and had a history of a course of dealings with the Department of Immigration and that's the context in which you see this second phase, if I can use that stage (sic)."

295. On behalf of the applicant, Mr. Shirrefs contended that the examination and cross-examination to which we have referred, amounted to evidence unlawfully tendered and received in breach of s.16(3) of the Parliamentary Privileges Act 1987. Relevantly, s.16 provides as follows:

"(1) For the avoidance of doubt, it is hereby declared and enacted that the provisions of Article 9 of the Bill of Rights 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section. (2) For the purposes of the provisions of Article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of the House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published. (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions, wholly or partly, from anything forming part of those proceedings in Parliament. (4) ... (5) ... (6) ... (7) ..."

300. Mr. Shirrefs submitted that the examination and cross-examination of the applicant to which we have previously referred was clearly in breach of the provisions of s.16(3) of the Act. In particular, he submitted that the cross-examination amounted to "questions asked ... concerning proceedings in Parliament ... for the purposes of ... questioning ... the credibility, motive, intention or good faith of any person". He further submitted, correctly in our view, that the provisions of s.16(3) of the Act were absolute and that the privilege established thereby was the privilege of the Parliament, and could not be waived by the applicant. He submitted that the provisions of s.16(3) were cast in wide terms and were not intended to be given a narrow construction. In support of this submission, counsel referred to the history which led to the introduction of the legislation and, in that context, referred to the Explanatory Memorandum which accompanied the Bill when it was introduced into Parliament. That Explanatory Memorandum stated that the purpose of the clause which became s.16 was, inter alia:

"to avoid the consequences of the interpretation of article 9 of the Bill of Rights 1688 by the judgments of Mr. Justice Cantor and Mr. Justice Hunt of the Supreme Court of New South Wales".

This was a reference to rulings made by those Judges in the trials of the former Attorney-General (Cth.) and High Court Judge, the Honourable Lionel Keith Murphy, in the Supreme Court of New South Wales. In respect of the sub-clause which became sub-section (3) of s.16, the Explanatory Memorandum recited[2]:

"These prohibitions express the limitations on the use of parliamentary proceedings which were held to flow from article 9 [of the Bill of Rights] in the earlier court judgments. Basically, what they prevent is proceedings in parliament being "used against" a person in the broad sense; that is, not only being made the subject of a civil or criminal action, such as where a member is sued for words spoken in debate, but also being used to support a civil or criminal action against a person."

307. In R. v. Murphy[3], Hunt, J. had given article 9 a narrow construction. His Honour recognized that, by virtue of s.49 of the Commonwealth Constitution, the relevant privileges enjoyed by the Commonwealth Parliament, its Members and Committees, were those declared by article 9 of the Bill of Rights, namely:

"That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament."

His Honour, however, rejected the submissions of counsel (who were given leave to appear, amici curiae, on the instructions of the President of the Senate) that the declaration in article 9 was expressed in sufficiently wide terms to prevent a witness in proceedings in a civil or criminal court from being cross-examined in relation to evidence which that witness had given before a Parliamentary Committee or a statement which he had made to such a Committee. His Honour expressed the view that:

"... the phrase `impeached or questioned in any court or place out of Parliament' in article 9 should be interpreted in the sense that the exercise of the freedom of speech given to members of parliament (and committee witnesses) may not be challenged by way of court ... process having legal consequences for such persons because they had exercised that freedom"[4].

It was his Honour's view that the interpretation which he gave to article 9 was:

"consistent with the relevant mischief which the Bill of Rights was enacted to remedy - namely, the previous availability in the courts of process whereby legal consequences were visited upon members of parliament for what they had said and done in parliament"[5].

315. It is appropriate to note that the narrow construction given by Hunt, J. to article 9 of the Bill of Rights has not met with universal acceptance[6]. Basing himself on the history of the Parliamentary Privileges Act and the authorities to which we have referred, counsel for the applicant submits that this Court should conclude that the questioning of the applicant, and particularly the cross-examination, was in clear breach of s.16(3) of the Act. The cross-examination, he submitted, was obviously intended to suggest that the applicant had either lied to, or deliberately misled, the House during the debate on 2 December 1998 and was, as a consequence, a witness of little credit. Thus, he submitted, the questions were "not lawful" and in breach of s.16(3)(a) and (b). In support of these submissions, counsel for the applicant relied upon the views expressed by Doyle, C.J. in Rann v. Olsen[7], where his Honour, after referring to the Second Reading Speech introducing the Bill which became the Privileges Act said:

"There is nothing in this material to support a restricted approach to the provisions of s.16(3). Granted, the main thrust of the speech is the need to reverse the effect given to Art. 9 in R. v. Murphy. But, equally clearly, the intention stated was to maintain a broad interpretation of Art. 9. While the speech is, in a sense, founded upon Art. 9, and upon re-establishing its meaning in the broadest sense, this does not support an approach to the interpretation of Section 16 (3) which limits it to the operation of Art. 9. ... In my opinion the history of the Privileges Act, and an identification of the mischief at which it was aimed, provides no support to [counsel's] submission. It indicates that the intention was to reverse a particular view of the operation of Art. 9, and to maintain a broad scope for its operation."

319. We think that counsel for the applicant is correct in submitting that s.16(3) of the Act should be interpreted according to its tenor and not be read down or given a restricted meaning. This view stems not only from the history which led to the passage of the Parliamentary Privileges Act and its clear aim to preserve the freedom of speech in the Parliament, but also from the principle that the Courts and the Parliament will be astute to recognize their respective constitutional roles. The Privy Council in Prebble v. Television New Zealand Limited[8] referred to this "wider principle" and said[9]:

"In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognize their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ... . As Blackstone said in his Commentaries on the Laws of England (17th Ed., 1830), Vol.1, page 163: `The whole of the law and custom of Parliament has its original from the one maxim', that `whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in that House to which it relates, and not elsewhere'."

Their Lordships identified this principle as the "principle of non-intervention". Later in their judgment, they said[10]:

"Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House; if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue."

325. There has been considerable debate within Australia as to whether or not an interpretation of s.16(3) of the Act, according to its tenor, can validly survive the constitutional arrangements which exist in our federal system. Thus queries have been raised as to whether the sub-section unduly burdens the freedom of speech in respect of government and political matters which is to be implied into our Constitution[11]. Secondly, it has been suggested that s.16(3), if afforded a liberal interpretation, is a law which would unduly impede or interfere with the exercise by the courts of the judicial powers of the Commonwealth[12]. The courts have recognized (particularly in defamation cases) that a broad interpretation of s.16(3) will frustrate the determination of issues in some cases. Thus, in Prebble, the Judicial Committee, whilst concluding that s.16(3) was declaratory of the effect of Article 9 of the Bill of Rights, conceded that, in some cases, the broad interpretation of Article 9 would make it "quite impossible to fairly determine the issue between the parties. In such a case the interest of justice may demand a stay of proceedings"[13]. In Laurance v. Katter[14], Pincus, J.A. concluded that s.16(3) was invalid; at least in defamation cases[15]. Davies, J.A., in the same case, regarded s.16(3) as a valid law, but on the basis of reading it down to the extent that it was to apply only when the court concluded that freedom of proceedings in Parliament would in fact be impaired[16]. Similar doubts have been expressed about the legislation by learned commentators[17]. It is also interesting to note that the case of Laurance v. Katter[18], was the subject of a grant of special leave by the High Court, but the matter was settled before the appeal could be heard[19]. Thus the scope and validity of s.16(3) of the Act have yet to be determined by the High Court.

328. No challenge to the validity of s.16(3) of the Act was made in this Court during the course of the appeal. Mr. Howard, on behalf of the respondent, pointed to the apparent width of s.16(3) of the Privileges Act and submitted that a strict interpretation of the sub-section was required. He submitted that the preferable view was the one which had been put forward by Davies, J.A. in Laurance v. Katter, to which we have previously referred. Mr. Howard further submitted that it was the applicant himself who had introduced his parliamentary performance into evidence and had, consequently, opened himself out to cross-examination in respect of the evidence that he himself was relying on. It was put by counsel that, in those circumstances, it could scarcely be contended that it was "not lawful" for the evidence to be tendered or received. Mr. Howard pointed to the provisions of s.4 of the Privileges Act which provides, so far as relevant, that:

"conduct ... does not constitute an offence against a House unless it amounts ... or likely to amount to an improper interference with the free exercise by a House ... of its authority or functions ...".

Mr. Howard also pointed to the fact that s.3(3) of the Privileges Act defined "an offence against a House" as a reference to "a breach of the privileges or immunities, or a contempt, of a House ...". Thus, so Mr. Howard contended, the conduct described in s.16(3) will not constitute an offence against a House unless it has or is likely to have the effect described in s.4. It could scarcely do that, he submitted, in the circumstances of this case where the issue had been introduced by the applicant. It was put that the cross-examination of the applicant would not adversely affect the freedom of debate in Parliament "because any member would know that they need not do the same as the applicant did". The submission was that the applicant "chose, as it were, to step outside the walls of the Parliament and was bound to accept the consequences".

333. Although there is much in what Mr. Howard has put on behalf of the respondent, we are not satisfied that it meets the arguments made by or on behalf of the applicant. It does not seem to us to give proper effect to the purposes of the Privileges Act, and particularly s.16(3) thereof, to read it down in the manner suggested by Davies, J.A. in Laurance v. Katter[20] . We agree with the comments made by Doyle, C.J. in Rann v. Olsen[21] that such a construction of s.16(3) introduces into it, without warrant, an "unexpressed proviso" - namely that something apparently made unlawful by the provisions of s.16(3) is not to be rendered unlawful unless, in the opinion of the court in which the matter arises, the apparently prohibited activity in fact impairs the freedom of speech in Parliament of the person whose statements are to be challenged.

336. Nor do we think that the "unlawful tendering" of evidence, or asking of questions in proceedings before any court concerning proceedings in Parliament for the purposes of impeaching the credibility of a person, contrary to s.16(3) of the Act, is to be rendered lawful by reference to the conduct referred to in s.4 of the Act. Section 16(3) specifically makes it unlawful for questions to be asked during proceedings in court and concerning proceedings in Parliament for the purposes of impeaching the credibility of a member of the House. The purpose of the provisions of s.16(3), in our view, is to preserve the freedom of speech in the Parliament by ensuring that those who participate in debate in the Houses of Parliament can do so confident in the knowledge that what they are saying cannot be impeached at a later time in a court of law or in any other place than the Parliament itself. In that sense, it seems to us that the provisions of s.16(3) stand aloof from the provisions of s.4, which section, together with s.9, was a machinery provision calculated to protect the rights of persons charged with a contempt of the Parliament and to facilitate a review of the proceedings in the courts[22]. In this case it seems to us that the cross-examination of the applicant, notwithstanding that he had introduced into the evidence (perhaps for a purpose which would not have been in breach of s.16(3)) the topic of his parliamentary performance, was a breach of sub-s.(3) of s.16 of the Privileges Act because it was calculated to suggest that he had lied to the House or misled the House during the debate on 2 December 1998 and that, therefore, he was a man who lacked credibility.

339. However, the fact that the cross-examination of the applicant amounted to a breach of s.16(3) of the Privileges Act does not mean that there was a fundamental irregularity in the trial proceedings or, indeed, that any substantial miscarriage of justice occurred. It was the submission on behalf of the applicant that because the questioning was unlawful and in breach of the Privileges Act, it amounted to a fundamental irregularity in the trial which went to the root of the proceedings in the sense discussed by the High Court in Wilde v. The Queen[23]. In our view that submission cannot be accepted. It may be accepted that the admission of the evidence in breach of the Privileges Act was an irregularity which occurred in the trial but it was one, as we think, which was no more fundamental than any other case where irrelevant or unlawfully obtained evidence finds its way into the trial. There will be many circumstances where it may be difficult to immediately discern whether the purpose of questioning offends the provisions of s.16(3) or not. It would be, we think, a somewhat extraordinary consequence if the inadvertent introduction of such evidence was to automatically put an end to the trial. The real question, in our view, is whether the introduction of this evidence, in all the

circumstances, constituted a substantial miscarriage of justice which cannot be saved by the proviso to s.568(1) of the Crimes Act.

343. In our opinion, no substantial miscarriage of justice actually occurred in this trial as a consequence of the introduction of the impugned evidence. As we have indicated, the offending evidence was a very small part of the evidence-in-chief of the applicant and a very small part of the cross-examination. Nor in our view did it amount to very much in the way of impeaching the credit of the applicant. He introduced the topic that what he had said in the House on 2 December 1998 was

"an exaggeration", and it seems to us that his explanation that it was the type of exaggeration commonly used to emphasise a point, and was not a deliberate misleading of the House, was likely to have made very little impact upon his credibility in the minds of reasonable persons. There was very much more in the evidence going to the character and credibility of the applicant than this marginalised piece of evidence. The fact that the evidence was not thereafter referred to, either in the speeches of counsel or in the charge of the judge, serves to indicate the lack of impact which it had and was likely to have. In the context of a case where the jury had before them so many secretly recorded telephone conversations revealing the true character and credit of the applicant, we are quite unable to accept that the impugned evidence caused any miscarriage in the trial. The submission made on behalf of the applicant that it was "devastating" seems to us to be a plain overstatement and at odds with the fact that the jury acquitted on one count and disagreed on another. Those verdicts seem to us to be a clear indication that the jury paid heed to the judge's "separate consideration warnings and instructions". The impugned cross-examination raised matters related to the conspiracy alleged in count 2 and would, in our view, have had no impact upon the offences alleged in counts 3, 5 and 6. Those counts alleged offences which were quite discrete from each other and from the offence alleged in count 2. Furthermore, they were offences in respect of which the recorded conversations provided overwhelming evidence. It is contended by the applicant that he had an explanation for the events which were the subject of counts 5 and 6; namely that he was engaging in a deliberate course of conduct to determine who, through Cheung, was "setting him up". Counsel for the applicant contends that the impugned questioning in breach of the Privileges Act made it an effective certainty that the jury would not believe that explanation. In our view, the impugned evidence would have had little or no impact upon that issue because, in the light of the established

evidence, the explanation was, in itself, unworthy of belief. Furthermore, the conviction on count 3 is not the subject of any ground of appeal save for the ground which we are presently considering. It seems to us, in any event, that his defence in respect of that count was non-existent. We agree with the submission made on behalf of the respondent that there was such a large body of evidence of the applicant's deceit and dishonesty that it eclipsed any damage which might have been done to the applicant's credit by the evidence relating to his statement in Parliament, about the so-called "exaggeration". Accordingly, although we are of the view that the impugned evidence was introduced in breach of the Privileges Act, we are nonetheless satisfied that the introduction of that evidence, in the circumstances in which it occurred, caused no substantial miscarriage in the trial. This ground must, accordingly, fail.

Grounds 9, 17; directions with respect to count 2

349. Before addressing the issues raised with respect to this count[24], it is necessary to direct attention to some of the principles underlying the long-adopted approach of the courts to the charge of conspiracy. There have been over the years a number of trenchant criticisms made of the use of conspiracy as a criminal charge.[25]

352. It is important to remember that the criminal law is primarily concerned with conduct, usually the engagement in prohibited acts but sometimes the omission to perform required acts. Levels of seriousness are in most circumstances determined by the nature of the acts themselves and the mental state of the perpetrator with respect to them. Conspiracy differs in the sense that the prohibited act is the entry into an unlawful agreement, which need never be implemented. In distinction to other offences, criminal responsibility is therefore essentially attributed to intention rather than conduct, save in a limited sense. The charge laid against the applicant in the present matter rested on s.86 of the Crimes Act under which (inter alia) -

"(3) For the person to be guilty: (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 that an offence would be committed 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."

356. At common law the crime of conspiracy is complete as soon as the offenders enter into the arrangement. Accordingly, an overt act performed in its implementation does not constitute an ingredient of the offence itself. Evidence of such acts is admissible to demonstrate the existence of the conspiracy and may assist in the identification of the participants. Under s.86 however, the prosecution is required to establish beyond reasonable doubt that at least one of the parties to the agreement has committed an overt act,[26] directed to its implementation. To that extent there is in relation to the offence created by s.86 a departure from the common law concept of a totally inchoate offence.[27]

359. The agreement would also encompass the intention by the person charged and at least one other party to it that an offence would be committed pursuant to the agreement. This element also, which would have to be established by the prosecution beyond reasonable doubt, would require the provision of instructions to the jury in the judge's charge concerning the identification of the intended offence and the other party alleged to share that intention.

362. Whilst conspiracy has been recognized as an offence for a very long time, by reason of the emphasis on thought rather than deed, it has been and continues to be regarded with a degree of circumspection. It is hardly surprising against that background that stress has been placed upon the necessity to identify the conspiracy alleged with reasonable precision at the outset of the proceeding.

365. In Mok v. R.[28], Hunt, J. put the position as follows:

"An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489, 495, 501-502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280-281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged. It has long been considered a cardinal requirement of the criminal law that an accused should be given proper particulars, and the courts possess an inherent authority to require the Crown to furnish particulars of the charge. The authorities are collected in Johnson v Miller at 497 and in Ex parte Graham; Re Dowling at 280. The denial of the defendant's right to particulars in Moss v Brown [1979] 1 NSWLR 114 at 128-130 is limited to the position of a defendant in committal proceedings, where the magistrate in any event has a discretion whether particulars should be ordered: Ex parte Donald; Re McMurray (1969) 89 WN (Pt 1) (NSW) 462 at 470, 472-473. Because of the special nature of the inquiry which is being conducted in those proceedings, the defendant has no right to such particulars: Ex parte Coffey; Re Evans [1971] 1 NSWLR 434 at 451, 460.) In a conspiracy case, each 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. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address -- at the latest. He is not entitled simply to open the overt acts of which particulars which have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial."

369. Deane, J. stated in his judgment in Gerakiteys[29]:

"... it is, where the use of a conspiracy count is availed of by the Crown, 'essential - indeed fundamental - that the precise nature of the conspiracy be carefully analyzed prior to the commencement of the proceedings'."

373. Whether the matter is approached by reference to common law principles or the statutory provisions in s.86 it is necessary that the relationship between an alleged overt act and the conspiracy, the central features of which must be identified at the commencement of the trial, should itself be spelled out with reasonable clarity. This is necessary not only to avoid the possibility that the accused is not convicted of some wrongdoing not encompassed by the conspiracy alleged but, in the case of a charge laid under s.86, as a consequence of the statutory requirement of sub-s.(3).

376. The allegation contained in count 2 of the indictment in the present case, was particularized in a letter signed by a Senior Assistant Director of the Office of the Commonwealth Director of Public Prosecutions, dated 7 March 2002 and sent to the applicant's solicitors. It was stated that:

"I confirm our advice that the conspiracy alleged in count 2 is as follows: The parties agreed to influence officers of DIMA [the Department of Immigration and Multicultural Affairs] to act contrary to their public duty in permitting one Chen to enter Australia under a valid visa by falsely representing that the said Chen was likely to leave Australia in compliance with the conditions of such visa."

380. It is necessary in order that the nature of the particular conspiracy asserted may be properly understood to set out some relevant parts of the regulatory structure within which officers of DIMA were required to operate at the time.

383. Regulations made pursuant to the Migration Act 1958, with respect to one of the sub-classes of visas which could be granted to permit the entry of foreign nationals to this country, addressed what was described as Subclass 676 - Tourist (Short Stay). To secure such a visa, it was necessary (inter alia) that:

"676.211 The applicant: (a) seeks to visit Australia, or remain in Australia as a visitor: (i) for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant; or (ii) for a purpose other than a purpose related to business or medical treatment; and

...

676.212 If the application is made outside Australia, the period of stay in Australia proposed in the application does not exceed 3 months."

Relevantly for present purposes, it was required by Regulation 676.221 that:

"(c) the applicant satisfies the Minister that the expressed intention of the applicant only to visit Australia is genuine; ..."

389. Under Schedule 4 of the Regulations, which was headed Public Interest Criteria and Related Provisions and which was directed to a number of factors of different kinds capable of influencing the decision whether or not a visa should be granted in a given case, the officers of DIMA dealing with the request had to consider:

"4011 (1) If the applicant is affected by the risk factor specified in subclause (2), the applicant satisfies the Minister that, having regard to the applicant's circumstances in the applicant's country of usual residence, there is very little likelihood that the applicant will remain after the expiry of any period during which the applicant might be authorised to remain after entry. (2) An applicant is affected by the risk factor referred to in subclause (1) if:

...

(b) the applicant has all the characteristics of a class of persons specified by the Minister by Gazette Notice for the purposes of this paragraph."

393. The Minister published, by Gazette Notice, as a class of persons affected by a risk factor, females aged 25 years or older, who were nationals of the People's Republic of China. Chen fell within this class. Accordingly, before a Tourist (Short Stay) visa could be granted to her, the officers dealing with her application had to be satisfied that there was very little likelihood that she would remain after the expiration of the period of three months during which she would, if the visa were granted, be authorized to remain after entry.[30] The making of a representation that an applicant would be likely to leave Australia could well assume relevance in the minds of the officers making that assessment.

396. The relevant form which had to be completed by a person seeking a Tourist (Short Stay) visa and which would initiate the necessary assessment by DIMA officers, was headed Application to visit Australia for Tourism or other Recreational Activities. Understandably, when regard is had to the criteria for entry, among the questions that had to be answered was "Why do you want to visit Australia?" This could be answered with a tick, if the proposed visit was -

"For tourism - holiday, sightseeing, recreational sport or study, visiting friends or relatives etc."

In other circumstances, the reason was to be stated.

401. Clearly, to enter into an agreement to misrepresent deliberately and falsely the purpose of a proposed entry into Australia of a person affected by a risk factor, in order to create the necessary satisfaction in the mind of a DIMA officer that there was very little likelihood that the applicant would remain beyond the period of three months contemplated by the visa granted, would be unlawful. The creation of such satisfaction by the deliberate misrepresentation of the true state of affairs would constitute a fraud on the Commonwealth. Persons who entered into an agreement to commit such a fraud would, accordingly, be liable as criminal conspirators.[31] As McHugh, J. stated in Peters v. The Queen:

"Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk ... or depriving another person of a lawful opportunity to obtain or protect property.... It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty...."[32]

...

"In most cases of conspiracy to defraud, to prove dishonest means the Crown will have to establish that the defendants intended to prejudice another person's right or interest or performance of public duty by: * making or taking advantage of representations or promises which they knew were false or would not be carried out; * concealing facts which they had a duty to disclose; or * engaging in conduct which they had no right to engage in."[33]

405. It would not be necessary for this offence to be committed for the perpetrator to possess the belief that the individual would seek to remain legally or otherwise in this country beyond the period of three months contemplated by the grant. Nor would the situation be one in which any "borderline" question of the kind considered by the Court in Peters with respect to the dishonesty of the means employed could be seen to arise. In that case, in their joint judgment Toohey and Gaudron, JJ. stated:

"... the offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means. Ordinarily, the means will be dishonest if they assert as true something which is false and which is known to be false or not believed to be true or if they are means which the conspirators know they have no right to use or do not believe that they have any right to use the means in question. And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. That, too, is dishonest by ordinary standards. If those matters are properly explained to a jury, further direction that the accused must have acted dishonestly is superfluous.[34]

...

In the case of conspiracy to defraud, it will ordinarily be sufficient to instruct the jury as to the facts they must find if the agreed means are to be characterised as dishonest. Alternatively, it will be sufficient to instruct them that, if satisfied as to those facts, they will be satisfied that the agreed means were dishonest. Only in the borderline case will it be necessary for the question whether the means are to be so characterised to be left to the jury."[35]

409. With expressed misgivings, as these views did not accord with his own, Kirby, J. agreed with this approach[36]. In the present case, as we understand the position the defence contended at the trial (inter alia) that the applicant considered that the policy being adopted by DIMA was racist and morally offensive and accordingly that there was no dishonesty involved in the adoption by him of techniques designed to circumvent its interpretation. It is not for this Court to pass upon the policies of the Commonwealth Government in relation to entry into Australia. All that need be said in the present context is that, in the event that it was found by a jury that an accused had entered into an agreement to misrepresent deliberately and falsely the purpose of a proposed entry into Australia of a person affected by a risk factor in order to secure the necessary visa, the means agreed to be adopted would be dishonest, regardless of the belief of the individual concerned that he was morally justified in so acting. No arguable or even irrational belief in the existence of some claim of right or other legal justification could be seen to be present so as to raise an issue for determination by the jury.[37]

412. There would seem to be little room for doubt that the Regulations were designed to ensure that, as far as possible, Tourist (Short Stay) visas were employed for the purposes identified by this heading and the application form itself, and were not used as an easy means of access to this country. In short they were to be granted only to persons who could, with a reasonable degree of confidence, be expected to return home after a stay of up to three months. The regulations and the duties of the responsible officers were directed to the assessment of that objective likelihood.

415. Although no prediction could be made as to what course events would have taken, if a visa had been secured and Chen had met Cheung face to face, no DIMA officer who was in possession of knowledge of the actual purpose of the proposed visit by her could reasonably have concluded that there was very little likelihood that she may not have sought to remain beyond the period of three months. If the aspirations of Cheung, as they appear to have been understood by the applicant, were realized, it was intended or at least contemplated that he would marry her[38] and that attempts would then be made for her to remain indefinitely. In that situation, DIMA officers who knew the facts and performed their duty in accordance with the regulations would have been required to refuse the application.

418. It is also apparent that the applicant, who possessed considerable knowledge and experience in this area, was well aware that this was the position. In cross-examination he admitted that:

"(a) he believed that the purpose of Chen's proposed visit to Australia was to work out whether there was a basis for a relationship with Cheung; (b) he knew that a possible outcome was that she would marry Cheung during her visit and then apply for a longer-term visa; (c) he believed that Chen would be unable to obtain a prospective spouse visa, because it would be impossible to satisfy DIMA that her relationship with Cheung was sincere, given that she had never met him; (d) he knew that part of the duty of an officer of DIMA was to ascertain the truth, so that the system was not cheated; (e) he knew that, under the regulations, an applicant for a short-term visitor's visa in Chen's circumstances was required to satisfy the Minister that the expressed intention of the applicant only to visit Australia was genuine; (f) he knew that an applicant for a short-term visitor's visa in Chen's circumstances was also required to satisfy the Minister that there was 'very little likelihood' that the applicant for the visa would remain in Australia after the expiry of the period during which the person was authorized to enter Australia; (g) he knew that officers of DIMA were required to apply those criteria in deciding whether to grant a visa, including that Chen fell into a 'high risk' category; (h) he knew that there was not 'a snowball's chance in hell' that officers of DIMA would have granted the visa sought had they known the true facts; (i) he believed that the only way to obtain the visa was to present a misleading picture to officers of DIMA, 'in one definition of the term mislead', that is, presenting an incomplete picture; (j) he agreed with Yau, on or before 8 September 1998, to mislead DIMA officers in relation to Chen's case, specifically (concerning the application for a visitor's visa) by not telling them of the possibility of a relationship; (k) in a conversation on 8 September 1998, the applicant gave Yau the impression that Chen would ultimately be making an application for permanent residency (although the applicant claimed in his evidence that that was not in his mind) and (l) he knew that the information presented in the visa applications was incomplete."

422. In this context, regard must be had to a conversation, recorded by means of a listening device, conducted between the applicant and Yau in the applicant's office on 8 September 1998, and in the course of which the applicant demonstrated an awareness that Cheung desired to secure entry to Australia for a 28 year-old female Chinese national for the purpose of marriage. At one stage, he asked Yau "Well, why is he getting married?" He indicated that there were two avenues of approach open to address the problem. The preferable course, he suggested, was that she could be sponsored by Yau for a visitor's visa. However, whilst this was regarded as satisfactory, it was necessary to bear in mind that "they" (the immigration authorities) would ask questions as to the reason for the visit and, presumably, his preparedness to act as sponsor. The applicant indicated that he would secure the necessary forms which would be sent to China. Cheung was to be advised to "keep away from Immigration" and Chen instructed that it was "very very important" that she should say nothing about Cheung. The applicant stated that after a "couple of months or two and a half months" following her arrival, the couple could marry and say that they had just met. The applicant was at pains to point out that they then had to remain together for two years if Chen was to secure permanent residency status.

425. Against this background, the prosecution contended that the applicant was a party to an agreement to represent falsely that "Chen was likely to leave Australia" in compliance with the terms of the visa sought. Why the allegation was formulated in that fashion has not become apparent. However, it may have been considered in view of the evidence concerning some of the representations by Dr Theophanous, in the period after 8 September particularly after the initial application was rejected, that this contention could be made out. There is a significant difference between the making of a false representation as to the likely future conduct of an individual and the representation, either false or misleading, of facts upon which the objective assessment of the virtual absence of the likelihood of engagement in that conduct is to be made. Although the regulations were directed to the latter enquiry, curiously, the prosecution chose to proceed on the basis that the applicant was involved in misrepresentations of the former kind. In other words, he was alleged to have agreed to make representations, knowing them to be untrue, concerning the future probable conduct or present intentions of another person. There are a number of very significant difficulties inherent in this notion, not the least of which is that the nature of the representation may involve prediction and speculation. Of course, it is possible to misrepresent falsely a present intention or to assert falsely that a particular belief was currently held. However, whichever of these states of mind was alleged to have been present at the time that the conspiracy was entered into, neither was clearly identified by the particulars as formulated in the present case. The decision to approach the conspiracy in this way created a potential for confusion in the trial from the outset. We will return to this aspect.

428. Another possible source of difficulty in the trial arose from the lengthy period encompassed by the count itself. There were many actions and interactions between those who were involved in one or another capacity in the application process between 4 July 1998 and 22 February 1999 and more than one application was made. These activities may have fallen within the rubric of an allegation of an all-embracing conspiracy of the general kind formulated by the President in the course of discussion, namely, to make such false representations as were necessary to secure the grant of a visa to Chen. So approached, they could be viewed as overt acts demonstrating the existence of a conspiracy entered into at a very early stage and its attempted implementation. On the other hand, the various interactions and steps taken may have provided support for the finding of more than one discrete conspiracy, based upon different misrepresentations and to different effect, although directed to the attainment of the same objective.

431. There was a need by reason of the presence of these various difficulties and possibilities, if the matter was to be put properly before the jury, for the particulars of the conspiracy alleged to be identified with precision, including, to the extent possible, the date on which it was formed.

434. When opening the case for the prosecution, counsel put the issues as follows:

"During the period covered by the indictment, that is 4 July 1998 to 22 September 1999, the accused was a member of the House of Representatives, that is a Federal Member of Parliament for the Victorian seat of Calwell. The accused during that period held himself out to be an expert in the field of immigration and as a person willing to use his position of expertise and influence to make representations on behalf of persons with problems related to immigration matters, principally in relation to visas, either to get people into or to allow people to remain in Australia. It seems that he does have a background in migration matters. I think he was the Chairman of a Standing Committee related to migration matters in the Federal Parliament at some stage. He was it seems particularly well connected with the Australian ethnic Chinese community and, indeed, all of the immigration clients concerned with the charges on this indictment are of Chinese background, either from the People's Republic of China or Hong Kong, or both. Indeed, the accused, it seems, touted himself as something of a champion of prospective Chinese visa applicants, so much is evident from telephone calls relevant to Count 2, and that is the conspiracy to defraud count, which were made to the Minister for Immigration and Multi-cultural Affairs, Mr Ruddock - you will hear that conversation in particular - and to a senior DIMA officer, and during that conversation to Mr Ruddock and, indeed, a similar conversation to the other DIMA officer, he complained with what, the prosecution say, was feigned indignation at the lack of respect the responsible officers of DIMA had shown for his own verbal and written assurances that the applicant, a Miss Chen, intended a genuine short-term social and tourist visit to Australia and that she intended to return to China whence she came at the expiry of the two or three month period for which the visa was to relate. You will hear in that conversation with Mr Ruddock, and in similar conversations where he accused the DIMA officers of racial prejudice, improper behaviour, unfair treatment, all the time knowing full well that the assurances he had given and about which he complained, that the DIMA officers had given him scant respect, were based on a lie. The accused knew full well that the applicant, Miss Chen, intended, and her future husband who was in Australia intended, that she should be brought to Australia on the pretext of a short-term visitor's visa so that he could marry her whilst she was here, pretending he met her whilst she was here and falling in love with her all of a sudden, and that she would then be in a position to apply for permanent residence and would not go back to China. The approach, the prosecution says, to Mr Ruddock was clearly intended to exert further improper pressure on DIMA officers who were, in fact, doing their job properly and fairly to that particular applicant. The lie was told to Mr Ruddock, repeated to Mr Ruddock in that telephone call, in the knowledge that the accused had received corrupt payment in respect of that matter, and you will hear that the matter was pursued right through to February with a further visit to Mr Ruddock where he repeated that assurance."[39] "As far as count 2 is concerned, that is the most complicated because that is the conspiracy charge, and the allegation is that between the 4 July of 1998 and 22 February 1999 the accused at Melbourne did conspire with Peter Yau, Frank Cheung, who is the convicted criminal that I referred you to who was acting as a police informer, and Chen who was the prospective visitor's visa applicant in the case and who was then resident in China, to commit an offence against the law of the Commonwealth, to defraud the Commonwealth as related to the relevant section of the Crimes Act. I have already tried to explain what fraud means in these circumstances, the accused causing public officers to act contrary to their duty, and in this case by making false representations to them that Chen would comply with the terms of a visitor's visa, that was to be the subject of the conspiracy. In other words, the pretext to get her here so she could get married off and stay here."[40]

438. Dealing with a visa application made on 14 December 1998, the prosecutor asserted:

"You will hear a good deal of conversation involving Dr Theophanous in which they discussed putting together this application and getting it right. It was important that this application, they having mucked up the previous attempt to get a tourist visa, should be done right. And there was a good deal of thought put into how they might persuade the DIMA officers that she was a genuine tourist visa applicant; in other words, that she would come to Australia for a short period of time that was specified in the tourism visa and leave. They wanted to get her here because they wanted her to be in a position to stay permanently. The important thing from their point of view was to persuade DIMA officers that she had no intention of staying permanently when they knew that she did. That is how the misrepresentations arise. So they had to package the thing to make it persuasive for DIMA officers to think that she was definitely going to go back because if they thought she wasn't going to go back, then they were not likely to and were not obliged to give her a tourist visa, and indeed they were obliged not to give her a tourist visa if they thought she was a poor risk and unlikely to go back. So this application was to be as persuasive as possible to make DIMA officers think that she was a good risk, that she was going to go back, when it was well-known amongst the conspirators that it was not intended that she would go back at least within the terms of the visitor's visa, namely the three month period while she would stay and perhaps ultimately marry, but certainly it would give her the opportunity of marrying Frank Cheung and staying in Australia."[41]

It would not have been unreasonable for the jury to interpret the remarks in this passage as an allegation by the prosecutor of the entry by those involved into a separate conspiracy relating to that visa application.

443. A little later, when outlining the evidence, counsel said of a conversation between the applicant, Yau and Cheung which was conducted at Plume's Restaurant on 17 November 1998 and in which Chen participated by telephone:

"Well, ladies and gentlemen, that is the conspiracy isn't it? There they were, the three of them. The only one that was absolutely absent, although she was on the other end of the telephone, was Chen, so they're all there putting the conspiracy together."[42]

The jury may well have regarded these remarks as an allegation that a conspiracy was entered into or "put together" at that time. It is also to be noted that at no stage in this opening did the prosecutor attempt to identify the time of entry into the conspiracy alleged, although at one point he indicated that it was prior to 22 September 1998[43], and he repeatedly asserted that the applicant was aware from the very earliest stages of his involvement in the matter that the real intention of arranging for Chen to come to Australia was to enable her to marry Cheung and then secure permanent residency..

448. Although it appears that the trial judge and counsel proceeded on the basis that agreement was reached on or before 8 September 1998, no date was mentioned in the particulars, nor do we consider that the issue of the time of the formation of the conspiracy was adequately identified or explained either in the addresses of counsel or the judge's charge to the jury. One important consequence of this defect was that no proper attempt was ever made by his Honour to instruct the jury concerning the possible overt acts associated with the conspiracy and the manner in which the evidence of their commission could be properly employed.

451. One element of the defence relied upon in the trial emerges quite clearly from submissions made to the trial judge by the applicant's counsel relating to the state of mind attributed to his client in the particulars. This was, as counsel interpreted the allegation there set out, that the applicant held the belief, at the time he entered into an agreement to make representations with respect to a proposed visa, that Chen was unlikely to leave at the time of or prior to its expiration. In other words, counsel for the defence was apparently of the view that the prosecution had undertaken to establish that the applicant possessed that belief at the relevant time (presumably on or before 8 September 1998). Not surprisingly, he was concerned to confine the jury's consideration to the conspiracy as he understood it to have been so formulated. The forensic advantages which would be achieved, if agreement was reached that the prosecution was required to establish the presence of such a belief, were obvious. At the end of the opening and before commencing his own opening address, he raised this matter in the absence of the jury:

"COUNSEL: There was one brief matter I wanted to raise. It was in relation to the way my friend has opened the conspiracy and he might deal with it. My concern was and Your Honour might recall that last week I read out to Your Honour what the particulars were that had been obtained with respect to the conspiracy. Those particulars were that the parties agreed to influence officers of DIMA to act contrary to their public duty and permit one Chen to enter Australia under a valid visa by falsely representing that the said Chen was likely to leave Australia in compliance with the conditions of such visa. Your Honour may recall that I indicated that it was influencing the officer of DIMA to believe that she would leave in compliance with her visa when the parties to the conspiracy were of the belief that she wasn't going to at the time the representations or the influence was being applied. In my submission, Your Honour, that hasn't been made clear to the jury really as yet. "[44] (My emphasis.)

"HIS HONOUR: Look, [Counsel], you've drawn it to [the prosecutor's] attention, but in the end I'm not going to tell him how to open. COUNSEL: No. HIS HONOUR: Obviously if anything happens in the course of the trial that requires correction I will have to do it, if it requires correction, and openings always run the risk of not predicting the evidence, but further that's the purpose of your being allowed to respond to the opening. COUNSEL: That's right, Your Honour. HIS HONOUR: So you will get an early say. COUNSEL: But I just don't want any misapprehension. HIS HONOUR: Quite. COUNSEL; It may be that we're all in furious agreement. HIS HONOUR: You've made your position absolutely clear and I think it's premature for me to say anything, if indeed I ever say anything. COUNSEL: Hopefully [the prosecutor] will say something . HIS HONOUR: You're welcome to raise it and you've certainly made your position crystal clear, [counsel]. Okay, jury back."[45]

From the perspective of the defence, the trial was conducted on that basis from beginning to end.

458. The position of the defence was evident from the outset. Indeed, in his opening remarks, counsel for the applicant submitted:

"I want to talk to you about the conspiracy. You have heard it opened by [the prosecutor]. It appears, ladies and gentlemen, it boils down to an allegation that Dr Theophanous was party to an agreement to influence officers of the Department of Immigration into believing that Miss Chen would leave in compliance with her visa when parties to the conspiracy were of the belief she was not going to. The evidence as it has been opened supports the view, the prosecution would say, that Frank Cheung and Miss Chen were going to marry and, therefore, she wouldn't leave the country pursuant to that original visa that she came here because she would be married and so on. It flows from that that as part of this agreement when influencing the officers of the Department of Immigration the parties to that agreement must have a belief that Miss Chen would overstay and not leave as per the requirement of her visa. That belief must have been in existence at the time when the Immigration Department officers are said to have been influenced."[46] (Our emphasis.)

The position adopted by the prosecutor was not clearly delineated however until very late in the proceeding. On more than one occasion in his opening, he contended that:

"... they all knew that the intention was not that she go back under the terms of the visa, but to overstay her period in Australia because of marriage."[47]

True it is that knowledge of an intention that Chen would not return to China is not to be equated with a belief that she would remain in Australia, but, when this reference was made in the context of the particulars provided to the defence and the trial judge, it is relatively easy to see how difficulties as to the precise allegation being advanced could arise. With great respect to his Honour, we are not confident that the distinction was appreciated until very late in the trial.

465. In his final address, it was certainly the case that the defence counsel continued to adopt the approach, evidenced throughout trial, as to the requirement of proof of the applicant's belief. At one point, he submitted:

"Just to put that in a more legalistic framework, the agreement which the Crown allege here is that the parties agreed to influence officers of the Department of Immigration to act contrary to their public duty in permitting Chen to enter Australia under a valid visa by falsely representing that Chen was likely to leave Australia in compliance with the conditions of such visa, and what I'm submitting to you is, when you look at the respective agendas it leads you to the conclusion that there wasn't such an agreement here, because agreement, as I said to you, is a meeting of the minds; OK? That's what conspiracy is about, and I'd suggest the evidence demonstrates that that isn't what we have here. Now, some of those other factors, just in brief and summary form, were the fact that Frank Cheung was anticipating a prospective spouse visa. Remember I took you to product both before and after the meeting on 8 September about that. I explained to you Dr Theophanous' position. You heard it in evidence that he would only lend some support to a visitor's visa because of the view which he had formed. You heard of the arrangement or agreement with respect to Peter Yau, the discussion that existed concerning that. You heard Dr Theophanous indicate that there was no more than a possibility of marriage, and how that tied into what he was thinking at the time."[48]

469. Prior to the delivery of the trial judge's charge, his Honour outlined to counsel the manner in which he proposed to instruct the jury. In the discussion that followed, counsel for the applicant stated:

"COUNSEL: Just in relation to the nature of the conspiracy, as Your Honour may recall during my friend's opening I raised the issue of how the Crown were putting it and I made reference to some particulars obtained, and unfortunately I don't have those in front of me, but my recollection was that the way it was put in the opening effectively was that there was an agreement to induce the relevant officials to grant the visa in the belief that the applicant for the visa wouldn't return or wouldn't abide by the terms of the visa. HIS HONOUR: That's the factual basis. That's the factual basis of the direction as to law. I assume he's going to stand by what he said at this stage."[49]

"COUNSEL: ... my understanding of how it was put was that it was also to be a part of the agreement that it was done in the belief that the applicant wouldn't return pursuant to the terms of any visa that was being obtained, so it had that second limb, if you like, Your Honour. This wasn't - - - HIS HONOUR: But isn't that part of - yes, it is. Part of the information is the `I believe', the statement of his actual belief of part of the misleading factual basis upon which the Crown relies. Misleading factual basis is that, isn't it? That that person believed that they would return in compliance with the visa. COUNSEL: No. It's being put that at the time at which the agreement is being made that the parties to the agreement are of the belief that the applicant won't return pursuant to the terms. HIS HONOUR: I see, you are right. Yes. I see what you mean."[50]

...

"PROSECUTOR: What's behind that is that presenting a picture, false picture that she at the time of making the application had the intention of complying with the terms of the visa; in other words, leaving within the three month period. Clearly in our respectful submission was knowledge of facts which if presented to the DIMA officer would have gone the other way and suggested that she is not likely to leave. HIS HONOUR: I don't think you need develop it. Give me those particulars again, because if they have been provided, as I think they have, I think I'm entitled in the course of my charge to tell them what the Crown suggests is the misleading fact. What is it? PROSECUTOR: Well, it's falsely representing that the said Chen was likely to leave Australia in compliance with the conditions of such a visa. HIS HONOUR: Of the visitor's visa? PROSECUTOR: Yes. Clearly that means leaving within a three month period and I think I said that. HIS HONOUR: If they were the particulars given, when I say that, the misleading is the Crown puts it as confined to that false representation, that is the false representation, and those words speak for themselves and the jury can apply the direction as to the law in accordance with that fact."[51]

...

"PROSECUTOR: Well, Your Honour, just to say this, that really the whole essence of the case has to be - a case of this nature, has to be the effect of the representations on the minds of the persons who were to be influenced - - - HIS HONOUR: That's right. PROSECUTOR: - - - and that means what's presented to them, not some private thought in the mind of the person that, ultimately everything will be all right because she'd go back, but what is intended by the conspiracies at the time they agreed to employ the dishonest means. What are the dishonest means, the presentation of false material, upon which the decision is to be made. The effect of that, of course, was designed to induce the belief that she was likely to go back, ..."[52]

477. As we understand the position, it was not until a written submission was made by the prosecutor shortly prior to delivery of the charge that he made explicit the contention that the prosecution was not required to establish a belief on the part of the applicant that Chen would not be likely to return home in compliance with the visa sought.

480. His Honour then addressed the matter in his instructions to the jury saying:

"Now remember you do not have to be satisfied the accused believed that Chen would ultimately over stay her visa, what you have to be satisfied about beyond reasonable doubt is that the accused agreed to employ dishonest means in the way that I have described it; to induce the decision to permit her to come here in the first place. That is what is relevant. So what Chen would have done had she got here is not relevant. You are dealing with what was said to induce the granting of permission to let her come to Australia on a visitor's visa."[53]

"If the intent was deliberately to present a misleading factual basis which had the tendency to induce the issue of a visitor's visa to Chen in circumstances where the public officer might otherwise have refused to do so, and the facts were presented with that intent, that would constitute the necessary intent that is required to prove this case. You do not have to be satisfied that the accused believed that Chen would ultimately overstay her visa."[54]

486. It is difficult to avoid the impression that the trial judge still did not appreciate that the trial had been conducted without appropriate clarification of the issues and with the defence indicating on more than one occasion a possible misconception of the character of the case being advanced by the prosecutor. The most remarkable feature of the trial at this point was that the defence counsel took no exception to this portion of the charge. It should also be pointed out that, relatively early in the charge, the jury requested a written copy of:

"all the elements and things like that, because we want to make sure we understand them properly."[55]

His Honour declined to do so at the request of counsel for the applicant and repeated his oral instructions in an abbreviated form.

491. Setting to one side the issues of admissibility of evidence to which attention has been given both in this Court and the Court below, the case presented no particularly complex issues of law or fact. However, the manner in which the charge was formulated called for the provision of instructions to the jury that carefully related the evidence to the principles of law which they might reasonably need to consider in the context of particulars of the conspiracy asserted. Unfortunately, his Honour's charge was deficient in this and other important respects.

494. His decision that it was not necessary to summarize the evidence for the jury, was appropriately described by senior counsel for the respondent before us, as "surprising", in the circumstances. It should have been apparent, by that stage at least, that confusion had arisen as to the nature and scope of the conspiracy alleged. The particulars provided asserted that the applicant had been party to an agreement to make false representation that Chen was "likely" to leave Australia in compliance with the terms of her visa. There were three separate applications but no one including the judge referred the jury to the terms of any of them.

497. Further, as we have indicated, his Honour provided very little assistance to the jury in relation to the manner in which they were required to approach the various overt acts which were claimed by the prosecution to support the inference that an agreement had been reached. No attention was directed to the provisions of s.86(3) and, in particular, to the requirement of sub-s.(3). Although the prosecution argued in the trial that the conspiracy was almost certainly entered into prior to 8 September 1998, if not on that day, not all of the prosecutor's remarks were consistent with that position. There was, on the basis of the evidence before the Court, a possibility that there was more than one agreement entered into as the various approaches to secure a visa for Chen failed and the adoption of different techniques were perceived to be necessary if the objective was to be attained. We have pointed out that depending upon the presence of a sufficient evidentiary foundation to support such an assertion, it may have been possible to encompass the responses to these various contingencies in a differently formulated count. However, that was not done and the jury was virtually left at large to decide for themselves when the conspiracy was entered into, what were its terms and by reference to what overt acts its existence could be demonstrated.

500. As earlier mentioned, the manner in which count 2 was particularized and the very lengthy period involved in the count itself created significant potential for confusion in the minds of the trial judge, counsel and jury alike. The various passages set out above suggest that this potential was realized, at least as far as the judge and at least one of the counsel were concerned. It is, accordingly, our view that these grounds have been made out. In the circumstances, the conviction on count 2 cannot stand; and there will have to be a re-trial on that count.

505. This ground can be addressed relatively briefly. Part of the evidence adduced against the applicant consisted of three recorded conversations[56] in which he participated with the agent Cheung.[57] In relation to each of these conversations, a listening device warrant had been obtained, purportedly pursuant to s.12G of the Australian Federal Police Act 1979. The relevant parts of that section read:

"(1) A member may apply to an eligible Judge for a warrant under this section authorising officials to use a listening device in relation to a particular person or particular premises. (2) If: (a) the application is for a warrant authorising officials to use a listening device in relation to a particular person; and (b) the Judge is satisfied, by information on oath: (i) that the person has committed, or is suspected on reasonable grounds of having committed, or of being likely to commit, a class 1 general offence or a class 2 general offence; and (ii) that information that would be likely to be obtained by the use by officials of a listening device to listen to or record words spoken by or to the person would be likely to assist members in, or in relation to, inquiries that are being made in relation to the commission, or likely commission, of the offence by the person; and (iii) that, having regard to the matters mentioned in sub-section (6), some or all of that information cannot appropriately be obtained by methods of a kind referred to in paragraph (6) (a); and (iv) if the offence is a class 2 general offence - that, having regard to the matters mentioned in sub-section (7) and no other matters, such a warrant should be issued; the Judge may issue a warrant authorising officials to use a listening device for the purpose of listening to or recording words spoken by, to, or in the presence of, the person. (3) The warrant may authorise: (a) officials to enter any premises in which the person is, or is likely to be, for the purpose of installing, maintaining, testing, using or recovering a listening device or a part of a listening device; and (b) the use of a listening device for the purpose of listening to or recording words spoken by, to, or in the presence of, the person anywhere in Australia."

The particular warrants with which we are concerned were in identical form and authorized certain members of the Australian Federal Police:

"at any time of day or night to enter any premises in which NCA Registered Informant 3027[58] is, or is likely to be, for the purpose of installing, maintaining, testing, using or recovering a listening device or part of a listening device; and

...

to use a listening device, or listening devices, for the purpose of listening to or recording words spoken by, to or in the presence of NCA Registered Informant 3027 anywhere in Australia."

It is common ground that Cheung was not the subject of the investigation. Nor was any suggestion advanced that he was, at the time that warrants were sought, considered to fall within the classes of persons encompassed by s.12G(2)(b)(i). Accordingly, it was accepted by the prosecution in the Court below and conceded before us that the warrants were not validly granted.

512. At the trial, an application was made to exclude the evidence obtained as a consequence of the use of listening devices on the three occasions concerned, in the exercise of the judicial discretion identified by the High Court in Ireland[59] and subsequently developed in a number of later authorities. Perhaps the most well known expression of the nature of the relevant discretion and the principles on which it rests is that of Stephen and Aickin, JJ. in their joint judgment in Bunning v. Cross[60] where they stated:

"What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration."[61]

Of particular relevance to the present matter, they went on to say:

"The relevance of the competing policy considerations to which we have referred becomes of especial importance in an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of identification, by fingerprints or voiceprints, or of ascertainment of bodily states, as by blood alcohol tests and the like."[62]

"The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part" - per Holmes J. in Olmstead v. United States [1928] USSC 133; (1927) 277 US 438, at p 470 [1928] USSC 133; (72 Law Ed 944 at p 953) . Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law."[63]

520. Subsequently, in Pollard v. The Queen[64], a case concerned with confessional evidence, Deane, J. addressed the question of the balancing consideration as follows:

"... the weight of the competing considerations of public policy will vary according to the circumstances of the particular case. The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an 'isolated and merely accidental non-compliance' with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest 'the real evil' at which the discretion to exclude unlawfully obtained evidence is directed, namely, 'deliberate or reckless disregard of the law by those whose duty it is to enforce it'. In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence."[65]

524. In the present matter, the possible exclusion of evidence obtained through the employment of listening devices, the use of which had been purportedly authorized by invalid warrants, on public policy grounds accordingly arose. A lengthy hearing on the voir dire as to the circumstances in which the warrants were secured, was conducted in the course of which a number of witnesses gave evidence. After considering the question, the trial judge held that:

"Whilst it would appear that at least the warrants under the Australian Federal Police Act 1979 were improperly obtained (as the Crown concedes for present purposes), I am of the view that any irregularities were not the result of any intentional disregard of the law and certainly not in contumelious disregard of the law[66]. The evidence of those witnesses (which evidence I accept) that it was and had been for some time the practice of the NCA for listening device warrant applications to be made with the assistance of a lawyer. This was regarded as an important precaution, especially in this matter.

...

The affidavit in support of each application was drafted by a lawyer (who gave evidence before me) and the Director of Public Prosecutions was (unusually) involved in many of the applications for the TI warrants. The evidence was (and I accept) that the DPP was not, however, involved so far as advice is concerned in relation to any of the s.12G warrants in respect of Cheung, the registered informer. The witnesses gave evidence that the actions of the various officers was following practice they believed to be normal and which they believed was lawful. While I am of the view that all concerned acted honestly and in the belief they were acting lawfully, I nevertheless conclude that there must, when the practice first began, have been a somewhat enthusiastic and optimistic interpretation of s.12G in particular. Those in charge might perhaps be worthy of criticism for allowing the practice of seeking 'particular person' warrants nominating police informers rather than genuine suspects, but that does not make the practice dishonest or in contumelious disregard of the law. I find the mental attitude could not amount to that and I accept the evidence to that effect. Such conduct might be in contumelious disregard of the law, but, having heard the evidence, I am satisfied that in this case it was not. Also relevant to the exercise of my discretion is the fact that the listening device warrants authorized recordings which either could have been or were in fact lawfully recorded by other means.[67] That being so, I accept the Crown submission that it would be artificial in those circumstances to exclude such recordings. The exercise of my discretion is, of course, an exercise in the balancing of the importance of important principles in a particular case. As a matter of public policy, it is of great importance and public interest to have wrongdoers brought to justice, particularly if the crime is serious. Also as a matter of important public policy is the consideration that curial approval should not be given to unlawful and unacceptable conduct on the part of those whose duty it is to enforce the law. Given my findings on the state of mind of the persons involved, it is clear that my discretion should be, and is, exercised in favour of the admission of the evidence."[68]

528. Before this Court, the argument was advanced that his Honour fell into error in his determination of this matter. What he described at one point as "a somewhat optimistic interpretation of s.12G" involved a wanton, culpable and cynical disregard of the law and systematic manipulation of the system under which such warrants were granted. Those in the National Crime Authority responsible for the development of this "sham" process intended, through the adoption of the technique of inserting the name of the agent and not the suspected person, to secure the granting of warrants which were, in effect, unlimited in their areas of operation in clear defiance of the law, it was claimed.

531. Were there any evidentiary foundation for making such a finding, a very serious state of affairs could be seen to exist and the exclusion of any evidence obtained in consequence on public policy grounds would almost certainly follow. The presence of good faith on the part of those who unwittingly implemented such a scheme would not alter its character and the maintenance of the integrity of our legal process would clearly be compromised. Not only is there nothing in the material before us which, independently considered, might be perceived as capable of supporting any such conclusion, but the trial judge, after hearing a number of witnesses, formed the view that whilst the process was flawed, there was nothing to suggest that the practice was dishonest or adopted in this matter a generally in contumelious disregard of the law. He found affirmatively that all of those concerned with the warrants obtained in this matter acted in good faith and in the belief that what they were doing was lawful. Those findings were clearly open to him. His Honour demonstrated by the language in which his ruling was expressed and the matters to which he adverted that he well understood the character of the discretion reposed in him and the principles governing its exercise. As it has not been demonstrated that there was otherwise any miscarriage of the exercise of the discretion reposed in his Honour, this ground must fail.

Grounds 1A, 1B and 11: Application of Ridgeway v. The Queen[69] to Count 2

536. These three grounds were argued together. Grounds 1A and 11 complained that the learned trial judge should have ordered a permanent stay of the proceedings with respect to count 2 (the conspiracy count), whereas count 1B asserted that there had been a miscarriage of justice with respect to count 2 by virtue of the admission into evidence of material which was unlawfully obtained.

539. Although the learned trial judge in making his ruling treated the application as being one in which a permanent stay was sought (and the grounds of appeal adopt that characterisation of the application), the successful invocation of the Ridgeway principles would, in the circumstances of this case, more appropriately lead to the exclusion of evidence[70] and that was, indeed, what was sought before his Honour, but nothing turns on this distinction. Before us, counsel on both sides treated his Honour's ruling as amounting to a rejection of an application for the exclusion of evidence.

542. The discretion identified by the High Court in Ridgeway for the exclusion of evidence arises where the evidence relied on for the proof of the offence, or the offence itself, was induced or procured by unlawful or illegal conduct on the part of the authorities. In that case a majority held that evidence of the importation of heroin, which was an essential element in the offence of possession of a prohibited import (i.e. the heroin) should have been excluded on public policy grounds by the trial judge in the exercise of his discretion. That was so notwithstanding the fact that the importation was a controlled operation conducted by law enforcement authorities in order to expose the criminal behaviour of the accused.

545. In the joint judgment of Mason, C.J., Deane and Dawson, JJ.[71] their Honours identified two distinct but overlapping situations where the discretion might be enlivened by illegal conduct on the part of law enforcement authorities:

"The first category consists of cases in which the police conduct has induced an accused person to commit the offence which he or she has committed. In that category of case, the public interest in the conviction and punishment of those guilty of crime is likely to prevail over other considerations except in what we would hope to be the rare and exceptional case where the illegality or impropriety of the police conduct is grave and either so calculated or so entrenched that it is clear that considerations of public policy relating to the administration of criminal justice require exclusion of the evidence."

549. The second category was identified in the following terms:

"The other category of case is where illegal police conduct is itself the principal offence to which the charged offence is ancillary or creates or itself constitutes an essential ingredient of the charged offence. An example of that category is a case where a person is charged with receipt or possession of stolen property in circumstances where not only the supply, but the actual theft, of the stolen property had been organized by the police for the purpose of obtaining the conviction of the person to whom it is supplied. In that category of case, the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect. Even in such a case, if the police conduct is disowned by those in higher authority and criminal proceedings have been instituted against the police as well as the accused, it is unlikely that considerations of public policy relating to the integrity of the administration of criminal justice would require the exclusion of evidence either of the accused's offence or of the particular element of it created by the police illegality. If, however, the illegal police conduct would appear to be condoned by those in higher authority and it does not appear that criminal proceedings have been brought against the police, those considerations of public policy will be so strong that an extremely formidable case for exclusion will be raised. Indeed, if the courts were prepared to allow curial advantage to be derived from the police illegality in such circumstances, there could be no satisfactory answer to Macrossan CJ's rhetorical question `at what point would it ever be appropriate to demur and offer objection?'" [Footnotes omitted.]

553. A third category involving conduct which was not illegal but was arguably improper was also identified, obiter, in the joint judgment (this category did not arise on the facts in Ridgeway). Their Honours discussed this category as follows:

"The effective investigation by the police of some types of criminal activity may necessarily involve subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence. When those tactics do not involve illegal conduct, their use will ordinarily be legitimate notwithstanding that they are conducive to the commission of a criminal offence by a person believed to be engaged in criminal activity. It is neither practicable nor desirable to seek to define with precision the borderline between what is acceptable and what is improper in relation to such conduct. The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community. A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of the offence with which the accused is charged."[72]

557. On behalf of the applicant it was submitted that the conduct of the NCA and its officers fell within some or all three categories, and the evidence arising from that conduct (being, in effect, all of the evidence obtained through Cheung concerning the conspiracy, during his dealings with Yau and the applicant) should have been excluded by the trial judge.

560. As was made clear in the judgments in Ridgeway, and was accepted by counsel for the applicant, the exercise of the discretion should not be the subject of rigid compartmentalising as between the three categories, but since counsel did address the issues under each category we will do likewise.

563. As to the first category - illegal acts inducing the commission of the offence of conspiracy - Dr Bleechmore identified a number of actions as constituting the illegal conduct of the NCA and its officers. Many of the actions he identified occurred after 8 September 1998, which was the date upon which the Crown finally settled as the date on which the conspiracy was entered into. His Honour concluded that while it was possible that the conspiracy was entered before 8 September it was not later than that date and any actions which occurred after that date could not logically be said to have induced the conspiracy to have taken place on 8 September or earlier.

566. Dr Bleechmore made two responses to the finding that no illegal actions after 8 September could have induced the entry into the conspiracy. In the first place, he submitted that his Honour should have held that the conspiracy with which the applicant was charged had been entered much later than 8 September, indeed as late as November 1998, and thus all "illegal" acts prior to that time, which he listed, were capable of having induced the entry into the conspiracy. Alternatively, if the conspiracy was entered on 8 September then acts which took place subsequently should also have been taken into account in determining whether the conspiracy was induced by illegal conduct of the NCA.

569. We agree with his Honour's conclusion that any acts which occurred after the date of the conspiracy could not be regarded as inducing the conspiracy[73]. In our view, his Honour was entitled to find that the date of the conspiracy was not later than 8 September, having regard to the evidence called on the voir dire. Accordingly, for the purpose of the first category in Ridgeway the applicant was obliged to identify to his Honour illegal actions on or before that date which induced him to enter the conspiracy.

572. The primary instance of an illegal act prior to 8 September was said to have occurred on 14 August 1998, and constituted an offence of bribery under s.73A(2) of the Crimes Act 1914, committed by Cheung in agreeing with Yau that the applicant would be paid money for assisting in the process of obtaining a visa for Chen. On the Crown case Yau was acting as agent for the applicant. The NCA was itself guilty of bribery, Dr Bleechmore submitted, because Cheung's offer to Yau to pay money to the applicant, which was made and accepted on that day, was at the behest of the NCA. The NCA therefore aided and abetted, encouraged or procured the commission of the bribery offence by Cheung, so it was contended.

575. Additionally, Dr Bleechmore suggested that each of the occasions from 3 August to 7 August when Cheung advised Yau of his willingness to pay increasingly larger sums to the applicant might amount to more than instances of importuning conduct and could also constitute separate offences of bribery. That suggestion was not pressed, however, and in our view, an examination of the transcript of the conversations between Cheung and Yau between 3 and 7 August does not disclose an offence of bribery on the part of Cheung or the NCA. As to this, we understood the final position adopted by Dr Bleechmore to be that prior to 14 August the conduct of the NCA, as constituted by the actions of Cheung, had been improper, but was not illegal.

578. It is to be noted that none of these suggested illegal acts of "bribery" by Cheung in his dealings with Yau before 8 September which Dr Bleechmore identified in his arguments before us had been so identified and relied on before his Honour as instances of illegal conduct which induced entry into the conspiracy. Only two instances of "illegal" conduct were identified before the trial judge as having occurred on or before 8 September. Those were, first, the payment of $26,000 made on that day and, secondly, the very fact of Cheung, also that day, himself entering into the same conspiracy as the applicant. Dr Bleechmore submitted that the NCA and its officers were also parties to that conspiracy.

581. His Honour concluded that neither the payment of $26,000 nor the entry into the conspiracy by Cheung could be said to have been illegal acts which "induced" or "procured" or "brought about" the applicant's offence of conspiracy.

584. His Honour, assuming it to be the case that payment of $26,000 constituted an illegal act on the part of the authorities[74], held that although such a payment might have been capable of procuring the commission of an offence in this case neither "on the evidence led on the voir dire, or indeed, generally" was he persuaded that it had in fact induced the applicant to enter the conspiracy. That conclusion could not have been affected, in our opinion, had the judge also treated conduct by Cheung on 14 August or earlier as also constituting illegal conduct by Cheung and the NCA.

587. The applicant, who carried the onus of proof, did not give evidence before his Honour on the voir dire. The contention that illegal conduct of Cheung on or before 14 August, or on 8 September, induced the applicant to enter the conspiracy had to overcome the covert surveillance evidence that strongly suggested that Yau was acting as the agent of the applicant in negotiating with Cheung the sum which would be required in order for Cheung to obtain the corrupt services of the applicant. Having had regard to such evidence on the voir dire his Honour rejected the contention that the applicant was an unwary innocent who had been induced to commit the offence by the conduct of law enforcement authorities. That conclusion was plainly open on the evidence and would not have been less so had the conduct of Cheung (and thereby the NCA) in his dealing with Yau before 8 September been characterised as illegal and not merely improper, as it had been characterised before his Honour.

590. The other suggested illegal conduct was Cheung's own entry into the conspiracy on 8 September. Dr Bleechmore submitted to his Honour that that was itself an illegal act which induced the applicant to commit the offence and thereby fell within the first category of Ridgeway. As to that conduct, his Honour accepted the prosecutor's contention that the very fact of one person committing an offence, by making the agreement which constituted the conspiracy, could not be said to induce another person to commit the same offence. We consider that his Honour was correct in so concluding.

593. In our opinion, counsel had not identified a separate illegal act on the part of the authorities which could have induced commission of the offence by the applicant. Whilst the expression of one person's willingness to enter an illegal agreement might be capable of constituting an inducement to another to enter the same agreement it was not contended that such conduct in itself constituted an offence. It is doubtful whether an offence of counselling or procuring a conspiracy is known to the common law[75] and counsel cited no authority which identified such an offence. Thus, it was open to his Honour to find that there was no illegal conduct of the NCA or its agents which induced the applicant to enter the conspiracy as at 8 September.

596. We turn, then, to the second category in Ridgeway, in which illegal conduct may enliven the discretion in one of two ways. The illegal conduct of the authorities might itself be the principal offence to which the charged offence is ancillary or else it might create or itself constitute an essential ingredient of the charged offence. His Honour said that he was not persuaded that the conduct of the authorities fell within either limb of the second category.

599. Dr Bleechmore submitted that his Honour was wrong to so conclude, and that on 8 September the officers of the NCA who controlled Cheung, and the NCA itself, were themselves guilty of the very offence of conspiracy with which the applicant was charged. Dr Bleechmore stressed that it was the NCA which provided the $26,000 for Cheung to proffer to Dr Theophanous at the applicant's office and it was the NCA which directed Cheung to reach agreement with his co-conspirators on that day. Thus, he submitted, the conduct of the authorities either constituted the principal offence to which the charged offence was ancillary or else the unlawful conduct created or was an essential ingredient of the charged offence.

602. The first relevant question is whether it could be said that the NCA or its officers had themselves committed the same offence as the applicant. Insofar as the payment of $26,000 constituted a bribe then that was not the same offence as the conspiracy. As to entry into the conspiracy, Dr Bleechmore did not deny that at all times the NCA had no intention of permitting Chen to come to Australia on a visa which was procured as a result of any misrepresentation. He accepted, too, that the NCA officers had, indeed, misled Cheung to believe that that outcome was possible, because they were anxious that he play his part convincingly. Dr Bleechmore submitted, however, that for the offence of conspiracy the only intention that had to be established was the intention to defraud the Commonwealth by deceiving the DIMA officers, and he contended that both the NCA and its officers shared that intention with their agent, Cheung. It mattered not, he submitted, that they had no intention of permitting the objective of the conspiracy to be attained.

605. Much argument was addressed to the judge and also to us by counsel as to the contention that the NCA and its officers had themselves committed the offence of conspiracy. The learned judge was prepared to assume that to be so, as will we, but nonetheless was not persuaded that the conduct of the NCA fell with the second category of Ridgeway. For the purpose of the voir dire the Crown was prepared to concede to his Honour that the NCA and its officers could be regarded as themselves having been conspirators.[76] The prosecutor submitted to his Honour, however, that even if that were so the second category of Ridgeway did not apply to such a situation. Unlike the situation discussed in Ridgeway as the first limb of the second category, there was not, here, a separate illegal act - i.e. the principal offence - which procured the charged offence, the latter being merely ancillary to the offence committed by or with the approval of the authorities. His Honour accepted that submission, and, in our opinion, appropriately so. In our view, however, the application of the Ridgeway discretion would not turn on such fine distinctions. For the reasons we later discuss, this was not a proper case for the favourable exercise of the Ridgeway discretion, under any heading. Before explaining why we so conclude, we will consider the arguments which were addressed to us with respect to the second limb of the second category of Ridgeway.

608. The relevant question under this heading is whether the entry into the conspiracy by Cheung and the NCA and its officers "creates or constitutes an essential element of the charged offence". His Honour held that such conduct could not have that effect.

611. Cheung's agreement with the applicant to defraud the Commonwealth was both a pre-condition and at the same moment evidenced the completion of the offence of conspiracy for both him and the applicant. As we have said, we agree with his Honour that even assuming that the NCA was party to that agreement it was not conduct which could appropriately be described as constituting "the principal offence" to which the applicant's offence was ancillary. Might it not, however, be characterised as "an essential ingredient" of the applicant's own offence, in that his offence could not exist unless Cheung offered his agreement at the same time as the applicant reciprocated? We accept that it might be so characterised, but is that sufficient to bring the case within the second category of Ridgeway?

614. Once again. it is clear, in our view, that even if there be such a theoretical understanding of the relationship between Cheung's and the applicant's unlawful conduct - so as to constitute Cheung's crime an essential ingredient of the applicant's offence - the association between the two offences is far from the type of conduct which their Honours were identifying in their joint judgment in Ridgeway as justifying the exclusion of evidence on public policy grounds. The divergence is even more pronounced when the focus is on the conduct of the NCA rather than Cheung.

617. The range of cases of illegal conduct which might fall within this limb of the second category is not made clear in the joint judgment. Ridgeway itself was one instance, where the offence of the importation of heroin was permitted in order to convict a person in Australia for possession of the prohibited import, which offence required, first, that the heroin be illegally imported . The other example given was R. v. D'Arrigo[77], where the police actually organised the theft of a motor vehicle, and its delivery, in order to obtain the conviction of an offender for possession of stolen property. Illegal actions of such character truly do constitute an essential ingredient of the charged offence but are qualitatively different to the conduct in this case. That is so even if, conceptually, the conduct of Cheung entering the conspiracy might be described as an essential ingredient in the applicant's offence.

620. In this case, and in order to obtain evidence against the applicant on the conspiracy count, the law enforcement authorities entered the same agreement (through their agent Cheung) as did the applicant. It was not, however, conduct which could reasonably be regarded as an instance where, to use the words in the joint judgment referring to the second category, "the police illegality and the threat to the rule of law which it involves assume a particularly malignant aspect".

623. Furthermore, there is, in our view, a very clear distinction between the commission of a substantive offence (such as the importation of heroin, as in Ridgeway, or the commission of theft of a motor vehicle, as in R. v. D'Arrigo[78]) and the commission of an inchoate offence such as conspiracy.[79] Although, of course, there could be no overt acts if there was not first the conspiracy, and although the offence of conspiracy is itself serious, exposure of a person's willingness to enter the conspiracy might well serve the legitimate public interest of preventing the occurrence of substantive offences by that person, which might reasonably have been expected to occur (by the person acting alone or with others) had he not been apprehended by these means.

626. In our view, even if the entry into the conspiracy by Cheung did fall within the second category of Ridgeway the circumstances in this case were not such that the reasonable exercise of the discretion would justify the exclusion of the evidence. If his Honour was in error in concluding that the conduct here was incapable of being described as constituting an essential ingredient of the applicant's offence his conclusion was nonetheless correct that the principles described in the second category would not justify the exclusion of the evidence in this case.

629. We turn to the third category of conduct by law enforcement authorities discussed in Ridgeway, namely, conduct which was not illegal but was nonetheless improper. As the joint judgment made clear, such improper conduct would only lead to the exclusion of the evidence if it "has procured the commission of the offence with which the accused is charged"[80]. If that offence was committed on 8 September then, for reasons earlier stated, no "improper" conduct after that date would be relevant for the purpose of the exercise of this discretion.

632. Counsel for the applicant submitted that the conduct of the NCA and its officers on or before 8 September fell within the third category of Ridgeway, being improper conduct of such seriousness as to constitute, in the words of Mason, C.J., Deane and Dawson JJ., "a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community"[81].

635. Dr Bleechmore contended that the conduct of NCA officers throughout the period from July 1998 until the arrest of the applicant was improper behaviour of a law enforcement authority which should be strongly disapproved of by the courts, and it was an error in the exercise of his discretion for his Honour not to signal such disapproval by the rejection of the evidence. He did not confine his argument to conduct which occurred on or before 8 September and submitted that the conduct after 8 September demonstrated that from early July the NCA intended not merely to enter the conspiracy but to carry out its objective by defrauding the Commonwealth by the making of false representations (as its officers later did, by the completion of misleading visa applications), by the typing of a dishonest supporting letter from Yau (the terms of which had been drafted by the applicant) and by the provision of funds for "bribes". Dr Bleechmore submitted that his Honour was in error in finding that the conspiracy was entered on or before 8 September, rather than much later, but, for reasons earlier given, we are satisfied that it was open to his Honour to so conclude on the evidence before him on the voir dire. Accordingly, we conclude that no error has been shown in his Honour confining his consideration to improper behaviour before or on that date.

638. In the period from 3 August to 8 September the NCA was said to have permitted, or even encouraged, Cheung to repeatedly importune Yau to involve the applicant in the plan to bring Chen to Australia by offering larger and larger sums of money to the applicant, through Yau. This conduct on the part of Cheung was said to amount to what was described in the joint judgment as a "degree of harassment or manipulation which is clearly inconsistent with minimal standards of acceptable police conduct"[82]. All of this conduct was said to have been approved by the then director of the NCA, who was kept appraised of the operation, and constituted, so it was submitted, what McHugh, J., described as an offence "artificially created" by the misconduct of law enforcement authorities[83].

641. It was the NCA, so counsel for the applicant asserted in their written submission, which "conceived and ultimately committed the very crime" and "overcame considerable resistance and reluctance to persuade the Applicant to participate in it, entered into the conspiracy, and then carried out most of the acts in furtherance of the conspiracy, at many stages independently of the Applicant, and without his knowledge". The conspiracy was "brought about by the NCA", they submitted, "without any reasonably based suspicion that the Applicant was engaged, or about to engage, in criminal activity".

644. In our view, the submissions made both to us and to the trial judge as to the supposed impropriety of the NCA lacked balance. The submissions both considerably understated the evidence as to the role of the applicant and Yau in the conspiracy, and overstated the role and motives of the NCA.

647. Having regard to the conclusion we have reached that a new trial should be ordered on the conspiracy count it is inappropriate that we rehearse the evidence in detail. Suffice to say that the evidence fell far short of demonstrating that Cheung had to overcome the "considerable resistance and reluctance" of the applicant to enter the conspiracy. The trial judge concluded that Cheung was persistent and demanding in his repeated requests for the early and effective helpful intervention of Dr Theophanous to obtain the ends he desired, but there was ample evidence to justify his Honour's further finding that Cheung's behaviour did not constitute true importuning but rather was a course of conduct "designed to allow the applicant to demonstrate that he could and would be bought"[84].

650. His Honour concluded that the NCA had little choice but to go along with the exercise that Cheung had initiated, and held that it was essential that Cheung be convincing in his role. In any event, as counsel for the respondent clearly demonstrated before us, far from being reluctantly persuaded by Cheung, Yau was himself enthusiastic in his encouragement of Cheung and in so doing he asserted that he was acting on behalf of the applicant.

653. Dr Bleechmore submitted that because there was an innocent explanation open with respect to the statements obtained through the body tapes or listening devices, the NCA did not have any reasonable grounds for suspicion which justified that a trap be set to tempt the applicant to agree to receive a bribe or to enter a conspiracy. The trial judge rejected the contention that the NCA lacked adequate information which justified its officers proceeding with the operation involving Cheung. In encouraging Cheung to continue his dealings with Yau and to offer bribes to the applicant the NCA officers were acting on information which suggested that not only was there a corrupt Member of Parliament engaged in a dishonest scheme involving fraudulent visa applications but that he was being assisted by a corrupt officer of DIMA. Support for that suspicion was provided by sources other than Cheung, including the words of the applicant captured on the listening devices and the body tapes.

656. In his ruling on the application the learned trial judge concluded:

"After having considered the authorities on the subject to which I was referred, I have come to the view that the NCA did suspect Dr Theophanous of illegal activities and that it was reasonable that the NCA should so suspect him. Certainly there was practically nothing in the way of hard proof of those circumstances prior to the entry into the conspiracy and it is also true that the NCA did not, at that time, have a great amount of information to found their suspicion. Certainly the basis of the NCA's belief was far from enough to indicate any certainty of guilt and was in fact was [sic] not enough to indicate any probability of guilt. But those are not the tests. The NCA had information (unsupported at first) that Dr Theophanous was engaged in an illegal activity and that, in my view, was enough to institute inquiries. At the relevant time, the NCA also had recorded and video taped conduct which was possibly consistent with guilt, even if it did not prove it. Even if there were, as there were, interpretations of that conduct which might be seen to be consistent with innocence, there were inferences open that were consistent with the guilt of Dr Theophanous."[85]

660. Having examined the evidence in some detail we are satisfied that his Honour's findings as to the reasonableness of the decision of the NCA officers, that it was appropriate to continue with the operation involving Cheung, were open to him. As was discussed in the joint judgment[86], the Ridgeway discretion involves the balancing of competing public interests where the weight to be given to the public interest in the conviction and punishment of criminal behaviour must be balanced against the public interest in maintaining the integrity of the courts and ensuring that law enforcement authorities observe the law and do not exceed minimum standards of propriety. The learned trial judge was called upon to exercise that discretion and the onus was on the applicant to establish such facts as justified the exclusion of the evidence, including establishing that the offence was procured by unlawful actions of the NCA[87].

663. The NCA was plainly under an obligation, in the public interest, to investigate the serious allegations of official corruption which came to its attention. The suggestion that the investigation should have been terminated once it became necessary for Cheung to actually proffer a bribe, or once a false visa application had to be lodged, might well defeat the considerable public interest in exposure of corruption among public officers. Dr Bleechmore suggested that the NCA should have alerted DIMA officers that a misleading or false visa application was to be lodged but that would have defeated the legitimate investigative function of the NCA, by alerting any corrupt officer of DIMA that the investigation was being conducted. Even if the application had been lodged with an honest officer prior notification of the operation might have caused the officer to act in a manner which alerted the visa applicant, and those supporting her, to the investigation.[88]

666. His Honour rejected the contention by Dr Bleechmore that the NCA's control over Cheung was inadequate and held:

"I do not accept that Mr Laing's deception of Cheung in leading him to believe that he might eventually obtain the entry of his girlfriend to Australia was in any way improper. The idea of achieving the end of having the lady come to Australia was Cheung's and not the idea of or the intention of any NCA officer. I accept the evidence that the NCA (who had Cheung already involved in its enquiries, in any event) really had no choice from the practical point of view but to go along with what Cheung proposed so far as that could be done. Further, it was necessary for the success of the operation that Cheung play his part convincingly. All of these matters had to be borne in mind in circumstances in which it was also necessary in the public interest that an unqualified entrant to Australia not be allowed to enter as a result of a false visa application."

670. His Honour carefully weighed the competing public interests and held that even if all of the conduct of the NCA identified by Dr Bleechmore was indeed illegal or improper and did induce the applicant to enter the conspiracy he would not conclude that, on public policy grounds, it was so grave, so calculated or so entrenched as to require the exclusion of the evidence thereby obtained. In our view, that exercise of his Honour's discretion has not been shown to manifest error of law or fact.

673. In our opinion, even if the entry into the conspiracy by Cheung and by the NCA through its officers was to be taken to fall within the first or second categories of Ridgeway this would nonetheless be a case where a proper balancing of the competing public interests would weigh strongly against the exclusion of the evidence. The crimes which the NCA were investigating were extremely serious and were likely only to be exposed by the offer of money, in circumstances where the recipients had no suspicion that they were under investigation. In our view, even if it was the case that the applicant's corruption was exposed only by virtue of being induced by bribes and upon the NCA itself entering a conspiracy through Cheung, the circumstances were such as to justify the NCA proceeding as it did, having regard to the fact that, as was conceded by counsel for the applicant, it was not the NCA which initiated the investigation. It had responded to what it heard from Cheung and was apparently supported by other sources, including by the words of the applicant himself.

676. In our view, it was open to his Honour to conclude that (adopting the words of the joint judgment in Ridgeway) this was not a case of "an otherwise law-abiding person who would not have offended were it not for the `inordinate inducements' involved in the illegal conduct". In R. v. Sahin[89], Chernov, J.A. (with whom Phillips C.J. and Callaway, J.A agreed) dealt with an offence of attempted bribery of a police officer where the evidence was obtained by an undercover officer posing as a corrupt policeman. His Honour held that even if that evidence was assumed to have been procured by unlawful or improper conduct the public interest in exposure of such a serious offence outweighed the public interest in expressing curial disapproval of the investigative process adopted.

679. In Sahin Chernov, J.A. considered that the public interest in the exposure of bribery involving a police officer outweighed the public interest in sanctioning unlawful conduct by law enforcement authorities in procuring evidence of the offence in the circumstances of that case. Similarly, in our view, the very serious allegation that a Member of Parliament was engaged in bribery, possibly in conjunction with an immigration officer, imposed a high public duty on the NCA to investigate the matter with a view to exposure of any such corruption. Having regard to the fact that the NCA had no intention of permitting the corrupt scheme which Cheung and Yau discussed, and was subsequently agreed, to achieve its objective, in our view the proper exercise of discretion in this case would have required the course which his Honour took. In our opinion, no error has been demonstrated in the exercise of the Ridgeway discretion with respect to evidence concerning Count 2.

682. Grounds 1A, 1B and 11 have not been made out.

Grounds 14 & 15: Counts 5 & 6: S.73A(1) "understanding".

"73A Corruption and bribery of members of the Parliament (1) A member of either House of Parliament who asks for or receives or obtains, or offers or agrees to ask for or receive or obtain, any property or benefit of any kind for himself or any other person, on an understanding that the exercise by him of his duty or authority as such a member will, in any manner, be influenced or affected, is guilty of an offence. (2) A person who, in order to influence or affect a member of either House of the Parliament in the exercise of his duty or authority as such a member or to induce him to absent himself from the House of which he is a member, any committee of that House or from any committee of both Houses of the Parliament, gives or confers, or promises or offers to give or confer, any property or benefit of any kind to or on the member or any other person is guilty of an offence. Penalty: Imprisonment for 2 years."

691. Counts 5 and 6 alleged offences under s.73A(1). That section postulates a variety of ways in which an offence can be committed under the section. In this case count 5 alleged that the applicant "did receive" property on an understanding that his authority or duty as a Member would be thereby influenced or affected. Count 6 alleged that the applicant "did agree to ask for property" on such an understanding.

694. Mr Shirrefs submitted that for an offence to be committed it was necessary for the prosecution to prove that the "understanding" stipulated in the sub-section was one mutually held by both the Member who has been charged and the other person with whom he has dealt. On the assumption that proof of a mutuality of understanding was an element of the offences, ground 14 complained that there was not sufficient evidence to establish that Cheung (and possibly also, or alternatively, Liu and Huang) shared the understanding with the applicant. Ground 15 complained that his Honour wrongly declined to direct the jury that a mutuality of understanding had to be proved.

697. Mr Howard submitted that it was not necessary to show mutual understanding. It was sufficient if the applicant, alone, held the relevant understanding.

700. The terms of s.73A(1) allow that a Member might commit an offence in any one of a number of ways. For present purposes it is sufficient to identify some of those combinations. Thus the Member might commit the offence by:

with, in any case, an understanding that the exercise by him of his duty or authority as a Member will be influenced or affected.

713. Counsel for the respondent submitted that to require that the non-Member share the Member's understanding would mean that the non-Member had to be genuinely willing to provide funds for the purpose of bribing the Member. That would mean, Mr Howard submitted, that a corrupt Member could never be exposed as a bribe taker by virtue of his taking a bribe from an undercover agent conducting an integrity test, because the undercover agent would have no intention, at all, that the Member act upon the bribe: the mere acceptance of it would be sufficient. That argument is not persuasive, in our view.

716. Whilst it is clear that in the last three of the categories of the offence which we have described, above, the offence requires that the member "agree" to certain conduct, that is a requirement quite distinct from the requirement that there be an "understanding", which requirement applies to all of the combinations whereby the offence might be constituted. In our opinion, it is clear that "understanding", in the sub-section, means something less than "agreement". Thus, whether or not mutuality of understanding is required to be proved it is not necessary to prove that the Member's offer to act contrary to his duty upon taking the bribe was accepted by the offeree. That much is clear from the use of the word "understanding" rather than "agreement", and must be so, since one category of the offence is where the Member merely "asks for" property on the understanding that he will act corruptly in return. Therefore, even if mutual understanding was required to be proved the offeree would not have to agree to the proposal, but merely understand that the Member is proposing a bribe, not, for example, an innocent donation of property.

719. The question whether the section does require that the Member's understanding be shared by another must be determined by analysis of the terms of the sub-section, having regard to the intention of Parliament as evidenced by those terms. We were told by counsel that there was no assistance to be gained by reference to Parliamentary debates nor were there any other relevant sources for gleaning the intention of Parliament.

722. Mr Shirrefs pointed to the use of words in the sub-section such as "asks for", "offers" or "agrees", "to ask for . . .or receive . . . or obtain" as reflecting that there must be a meeting of minds, that is, a mutual understanding of the corrupt nature of the proposal between the Member and the person to whom he made the request for a bribe. Furthermore, he submitted, it is logical that such mutuality be also required where the offence arises in circumstances where the Member "receives" or "obtains" property. Were it otherwise, he submitted, the absurd situation would follow that a Member could be convicted where he mistakenly believed that a bribe had been offered but where the donor intended merely an innocent donation.

725. Mr Howard, for the respondent, pointed to the situations whereby the offence might be constituted by the member "asking", "offering to ask", "offering to receive or obtain" as all being instances where the understanding is referable only to the Member, because the offence as so constituted did not concern itself with the response to, or understanding of, the Member's conduct by anyone else. He submitted that if a Member "asks for" property "on an understanding" that he will act corruptly Parliament must have intended that in thereby signalling his willingness to be bribed an offence had been committed under the section. It would be illogical, he submitted, for Parliament to intend otherwise, and to require that, in addition, there be proof that the Member's corrupt understanding was shared by the person from whom he intended the bribe to derive.

728. We agree that Parliament must have intended that the relevant "understanding" be that of the Member alone, even if that meant that a Member's understanding that he was participating or proposing to participate in bribery was not shared by the person from who he intended the property or benefit to derive, or had actually provided it. Thus, on count 5 - where the applicant's offence was said to be that he "received . . . property . . . on an understanding" that his duty would be corruptly compromised - the offence was established once the applicant's understanding was proved.

731. The offence under count 6 identified the conduct as being that the applicant "agreed to ask" for property "on an understanding" that he would thereupon act corruptly. That offence, as so constituted, does posit the involvement of someone other than the Member, being someone with whom the member agreed to ask for property on a corrupt understanding. The offence posits an agreement to act corruptly in the future, however the offence is committed once the Member "agreed to ask" for such property. Although it might be argued that the corrupt understanding need exist at that later time, when the member actually makes the request for property, in our view the offence is committed at the time when the member "agreed to ask", and that is the time when his understanding must be established. The question is whether the use of the word "agreed", for the offence as particularised in count 6, does require mutual understanding. In our view, it does not. For the reasons earlier stated, "understanding" of the corrupt nature of the proposed conduct, does not equate to "agreement" by the non-Member to engage in corruption. Whether agreement is otherwise an element of the offence, as charged, will depend on the particular activity under the sub-section on which the charge is based.

734. When the offence is constituted in the way count 6 is framed the conduct of a second person becomes relevant, and an agreement "to ask" is required to be proved. However, the focus of the offence remains on the Member, and the offence would be established upon proof that the Member agreed to ask for property on his own understanding that it was to be a bribe. That would be so even if there was no evidence that the other person shared the same understanding of the corrupt nature of what he had agreed with the Member was to be done pursuant to the agreement. It would be a surprising result if Parliament intended that unless a mutuality of understanding was proved no offence was committed where it was proved that the Member understood that by his agreement he was taking a bribe. In our view, an interpretation of the section which would produce that result should not be favoured over one that would be established merely upon proof of the Member's own understanding of his preparedness to be corrupted.

737. Sub-section (1) focuses exclusively upon the conduct of a Member of Parliament and sub-section (2) upon that of a person approaching a Member with a bribe or a proposal for a bribe. Offences under the latter sub-section are only committed when that person so acts "in order to" corruptly influence a Member. In the situation where the Member "receives" property on a corrupt understanding (thus constituting an offence under (1)) the person who provides the property, if he does so "in order to" corrupt the Member, would at the same time commit an offence under sub-section (2). There would be no purpose in requiring proof, additionally - in order to prove the offence under (1) - that the non-Member shared the corrupt understanding of the Member. Both the offeree and the offeror would be judged by reference to their own state of mind for the purpose of determining whether an offence was committed under either or both sub-sections.

740. Little authority was referred to by counsel in the interpretation of this section. Mr Shirrefs cited two appellate decisions from Queensland, R. v. Danahey[90] and R. v. Gatti; Ex parte Attorney-General[91], but in our view they do not provide support for his contention. In those cases the Courts were concerned with the offence of corruption of witnesses under s.127 of the Criminal Code (Queensland). Although the terms of the section had some features akin to those in s.73A(1) there were significant differences. Thus, the words "promises or offers" appeared in the Code section, in contrast to "offers or agrees" in s.73A(1), and in the Code the promise or offers must be "upon" (not "on") "any agreement or understanding".

743. Lee, J. was a member of both courts. In Gatti the majority held that the section did not require there be proof that a concluded agreement or understanding had been reached between the offeror and the offeree. It was sufficient that the corrupt offer be made, proof not being required that the other party reach a concluded agreement or understanding with the offeror. The majority held that that was in accordance with the majority decision in Danahay. Lee, J. disagreed both in the interpretation and in the analysis of the majority opinion in the earlier case. He held that the Crown had to prove a consensus, or meeting of minds, i.e. an agreement or understanding, between the offeror and offeree.

746. It is unnecessary for us to reach any conclusion as to whether there was a majority in Danahey for the interpretation favoured by Lee, J. In our view, little assistance is gained from considering the terms of quite different legislation.

749. In any event, even if our interpretation of the sub-section was incorrect it could have made no difference to the outcome on these counts. In their submissions counsel for the applicant variously identify Cheung, the NCA, and Liu and Huang as persons who might be capable of holding the necessary understanding, and then contended that in each case such understanding was not established. In our view, even if it was necessary to establish that the applicant's corrupt understanding was shared by someone else it would be unnecessary to look beyond Cheung, the conveyer of the funds, and Cheung undoubtedly had the same "understanding" as the applicant as to the nature of the agreement. Cheung, however, knew that he was engaged in setting a trap for the applicant by proposing that the applicant agree to engage in bribery. That would be sufficient "understanding" for the offence to be established, should Cheung's understanding have been relevant. His interest was that the applicant took the money or agreed to ask for money on his own understanding that it was a bribe.

752. Ground 15 complains that his Honour should have directed the jury that there had to be an "understanding" on the part of the donor of funds that they were to influence the Member in the exercise of his duty. Given our interpretation of the sub-section no such direction was required, but had it been required the failure to give such a direction could not have occasioned a miscarriage of justice in the circumstances of this case. No exception was taken to the direction given by his Honour and in our view had the direction been given in the terms now suggested the only conclusion which would have been reasonably open to the jury was that Cheung held such an understanding, within the meaning discussed above. It would have been an appropriate case to apply the proviso to s.568(1) of the Crimes Act 1958 in that event.

755. We conclude that no error has been shown as contended in grounds 14 and 15.

Grounds 5A, 5B, 12 and 13 - The Ridgeway discretion and counts 5 and 6

760. Although Dr Bleechmore sought to argue these grounds before us by reference to the principles in Ridgeway the application which was made to the learned trial judge only concerned count 5, and was based on Bunning v. Cross[92] rather than Ridgeway. No application for the exclusion of evidence was in fact made with respect to count 6. The contentions now advanced in support of these grounds (the written submissions in support of those contentions being supplemented by additional material during the course of argument) were not, therefore, the subject of any ruling or reasons delivered by the trial judge. Furthermore, the submissions made in support of these grounds strayed far from the terms of the grounds, despite the fact that the existing fifteen grounds of appeal had been expanded by the addition, with leave, of very many new grounds of appeal on 26 March 2003. In those circumstances our willingness to address these belated arguments is something of an indulgence, and should not be treated as a precedent for the future conduct of appeals.

763. Count 5 was an offence of bribery under s.73A(1) of the Crimes Act 1914 committed on 4 January 1999. On that day Cheung paid $2000 to the applicant which he represented to the applicant as being funds provided by two persons, Liu and Huang. Those persons had overstayed their visas.

766. On 17 November 1998 Cheung had discussed with the applicant a proposal that he should assist over-stayers in obtaining an extension of their visas. The applicant was not enthusiastic, saying he wanted to concentrate on the efforts being made with respect to Chen. Cheung approached two persons in that situation, one of whom was Liu, and offered, for a fee of between $10,000 and $12,000, to provide the assistance of a contact he had. One of the original over-stayers lost interest and was replaced by Huang. Although the intended contact was to be the applicant Cheung did not tell Huang that his contact was a Member of Parliament, but he did, however, advise Liu of that fact. On 22 December 1998 Cheung discussed with the applicant the proposal that he might assist the over-stayers for a fee. The applicant said that he would assist but they should ask only for $1000 from each, "for expenses", and he said that should a visa not be granted then the money would be returned. On 4 January 1999 when the sum of $2000 was paid to him the applicant suggested that Huang's prospects of being able to stay permanently were not good but they might be able to delay his deportation by some years. Cheung said that the over-stayers were prepared to pay as much as $20,000.

769. The sum of $2000 was provided by the NCA, the over-stayers having no knowledge that it was doing so. When Cheung had suggested to Huang that he would be required to pay money Huang was agreeable (Liu was agreeable but lacked the funds) but he insisted on receiving a receipt for any money paid.

772. With respect to count 5 the Ridgeway discretion was said to be enlivened under the second category in two ways. In the first place, it was submitted that an offence of offering a bribe under s.73A(2) had been committed by both over-stayers, and by Cheung (the latter either aiding and abetting their offences or committing an offence in his own right). The offering of a bribe was said to be an essential ingredient or element of the offence of taking a bribe under s.73A(1), because, as counsel submitted, "For the applicant to receive, another party must give". The second way in which the second category in Ridgeway was said to be relevant related to the same argument as earlier discussed concerning the need for mutuality of "understanding".

775. In offering of the sum of $2000 with the understanding that it was to be a bribe Cheung arguably committed an offence under s.73A(2), and although Cheung was merely acting as an NCA agent and had no intention that the applicant actually perform any service in return for the bribe we will assume it to be so. We will assume, further, that the offence was committed by Cheung at the behest of the NCA, and that the NCA and its agents thereby also committed that offence.

778. In our view, the offering of a bribe is not an essential element of the offence of bribery under s.73A(1). The submission confuses the elements of the offence under s.73A(1) with the evidence which might be led to prove it. As may be seen by its terms, s.73A(1) is primarily concerned with the holding out by the Member of Parliament of his or her willingness to be bribed, or else concerns the actual receipt of funds as a bribe. The sub-section posits a multitude of ways in which the Member of Parliament might commit an offence under s.73A(1), but whilst one of those would be the actual receipt of property as a bribe, it is not essential for there to be the payment of funds in order for an offence to be committed under sub-section (1). The offence of offering a bribe to a Member of Parliament under s.73A(2) is quite distinct from the offence under s.73A(1) and in our view the former offence does not constitute an essential ingredient of the latter.

781. The alternative basis for the contention that Cheung's conduct was an essential ingredient of the applicant's offences depended on acceptance of the interpretation of the word "understanding" in s.73A(1) which was the subject of grounds of appeal 14 and 15. As we have earlier stated, we do not accept the contention of counsel for the applicant that in order to prove an offence under s.73A(1) the prosecution must prove that the applicant's understanding was shared by anyone else. Accordingly, this basis for the application of the Ridgeway discretion does not arise.

784. Although the written submission asserted that it was under the second category of Ridgeway that the discretion arose with respect to counts 5 and 6, some of the arguments seemed to address the first category or a hybrid category, in which somewhat different public policy considerations were addressed about the conduct of the NCA than those discussed in Ridgeway. Thus, rather than the focus of attention being on the effect of the conduct of the NCA in procuring the commission of an offence by the applicant one relevant effect of that conduct was said to be that it procured an offence by persons who were not charged on the presentment, namely, Liu and Huang. It was said that this was a particularly heinous abuse of its powers by the NCA and such conduct deserved the court's condemnation by way of the exclusion of evidence concerning offences committed by the applicant. This argument was not one raised before the judge.

787. In our view, Ridgeway was concerned about the procurement of the offence by the person charged and even if it could be said that the conduct of the NCA with respect to Liu and Huang was itself unlawful or permitted illegality on their parts (which is not a question we need to resolve) it could not be said that any illegality on their part induced the applicant to commit any offence. However, even assuming otherwise, the involvement of Liu and Huang was not such as to justify the exclusion of evidence against the applicant by reference to the Ridgeway discretion.

790. The involvement of Liu and Huang provided an appearance of genuineness in the bribe offer, although they never met the applicant[93]. Whilst it may be considered unfortunate that they were involved, at all, they were first introduced into events by Cheung and since it was necessary for the applicant to believe that actual over-stayers were involved, it was a legitimate investigative technique for the NCA to permit them to be used, and deceived, in the manner adopted by Cheung (whose conduct was under constant monitoring by his NCA controllers). In all the circumstances, even assuming this argument had been addressed to the judge it would have been open to him to conclude, as we do, that the balancing of the public policy considerations discussed in Ridgeway would not lead to the exclusion of evidence against the applicant on this count.

793. As to count 6, it was submitted that the illegal act of Cheung in proposing to the applicant that at a time in the future they require the payment of bribes from those seeking assistance on immigration matters constituted an essential ingredient of the offence committed by the applicant. The essential ingredient was said to be the agreement of Cheung to that future course of conduct. Thus, it was said, for the applicant to "agree to ask for property for himself", as count 6 alleged, Cheung had to be party to that agreement. (Alternatively, once again, it was argued that Cheung had to share the applicant's "understanding". We have already dealt with, and rejected, that latter proposition and take the matter no further.)

796. Cheung's proposing to the applicant, and the applicant agreeing, that the applicant would ask for payment of money in return for his acting corruptly in future could not constitute an offence by Cheung under s.73A(1). That sub-section creates an offence only for a Member of Parliament. The conduct, arguably, is also not an offence within the terms of s.73A(2). In particular, Cheung was not offering to confer property or a benefit to the applicant but was encouraging the applicant to agree to seek such a benefit from others. However, even if that conduct of Cheung's was an offence under sub-section (2) , it did not constitute a principal offence to which the charged offence is ancillary.

799. Furthermore, if Cheung's conduct was an offence under sub-section (2) then it was so by virtue of Cheung's giving or conferring or promising or offering to give or confer property or benefit to the applicant. The essential ingredient of the offence under sub-section (1) is that the applicant agreed to ask for property or benefit. Whilst evidence that Cheung had proposed such a course of conduct might provide some proof that the applicant agreed to ask for bribes, and might itself constitute an offence under sub-section (2), the proposing of such a scheme by Cheung is not an essential ingredient of the offence under sub-section (1).

802. As we elsewhere discuss, sub-section (1) focuses solely on the understanding and intentions of the Member, and the offence would be proved even if the Member agreed to act corruptly at the suggestion or request of a person pretending that he was in agreement for the purpose of exposing the corruption of the Member. It was not necessary to prove that Cheung genuinely agreed to the corrupt course to which the applicant gave his assent. Accordingly, the unlawful conduct of Cheung, even if it amounted to an agreement that the applicant would ask for bribes, was not capable, on that basis, of constituting an essential element of the applicant's offence under count 6, and the discretion under Ridgeway was not enlivened on that account.

805. None of these grounds concerning counts 5 and 6 were made out.

810. It follows from what we have said that the only grounds of the conviction application which succeed are grounds 9 and 17 which relate to the conspiracy charged in count 2. The conviction on that count cannot, in our view, be saved by the proviso. For the reasons given, the conviction and the sentence imposed on that count should be set aside; and we order that there should be a re-trial on that count. Because the sentence imposed upon that count was the dominant influence in the total effective sentence imposed by the trial judge, the sentencing discretion has been re-opened. So far as relevant, s.569(1) of the Crimes Act 1958 provides:

"If it appears to the Court of Appeal that an appellant, though not properly convicted on some count ... or part of the indictment ... has been properly convicted on some other count[s] ... the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefor as it thinks proper and as may be warranted in law by the verdict on the count[s] ... on which the Court considers that the appellant has been properly convicted."[94]

814. Although the applicant sought leave to appeal against the sentences imposed by the judge, and his counsel have addressed argument to this Court in respect of those sentences, counsel nevertheless sought leave to address further argument to the Court, in relation to events which have befallen the applicant since sentence was imposed, in the event that the sentencing discretion was re-opened, and the Court's powers to pass sentence in accordance with s.569(1) of the Crimes Act were enlivened. Such leave, we think, should be granted and we will postpone our consideration of the sentence application until the applicant, through his counsel, has had the opportunity to put before the Court such further material - relevant to the matters to which we have referred - as he desires.

817. There is one further matter which we desire to mention. Following the hearing of the appeal and the Court's pronouncement that it would reserve its decision, a parcel of further submissions comprising some 70 pages - unsigned and unattributed to any person - was posted to the chambers of the President. We have had no regard to these submissions, the provenance of which is completely unknown to us. These submissions should not have been forwarded to the Court without leave. This Court has, as recently as 15 May 2003, explained that:

"Where argument has been presented to the Court by counsel on behalf of a party to an appeal, that will, other than in exceptional circumstances, put an end to that party's rights to present argument to the Court."[95]

The hearing of an appeal is the time to present argument and, after such hearing, no further argument will be received without the leave of the Court. If it were otherwise the business of the Court would be interminably delayed. Even more recently, McHugh J. in Eastman v. Director of Public Prosecutions of the Australian Capital Territory[96] said, in relation to submissions which were known to have come from the appellant himself[97]:

"Parties to matters before the Court need to understand that, once a hearing has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. ... But a party has no legal right to put submissions to the Court after the hearing."

His Honour was, of course, referring to the practice in the High Court. Nevertheless, the same practice is followed in this Court and, as the Court pointed out in Zhong[98], is implicit in the Crimes Act 1958 (s.572) and the Supreme Court (Criminal Procedure) Rules 1998.

[1] [1995] HCA 66; (1995) 184 C.L.R. 19.

[3] (1986) 5 N.S.W.L.R. 18.

[6] In R. v. Jackson (1987) 8 N.S.W.L.R. 116 at 121, Carruthers, J. referred to the English and American authorities in respect of Article 9, and noted that its purposes were to ensure that:

"A member of Parliament should be able to speak in Parliament with impugnity and without any fear of the consequences". (Sankey v. Whitlam (1978) 142 C.L.R. 1 at 35 per Gibbs, A.C.J.)

"the conclusion which I have reached is, I regret to say, inconsistent with the views expressed by Hunt, J. in R. v. Murphy ..."

"In my view the mischief which Article 9 sought to cure encompasses the use of Hansard in circumstances such as the present, that is, the assertion by the Crown that a Member of Parliament told lies in the House which were eloquent of his guilt of a criminal offence, the foundation for which was not something done or said in the Parliament".

Since the passage of the Parliamentary Privileges Act 1987 both the Judicial Committee of the Privy Council and the House of Lords have, in their own arena, rejected the interpretation given by Hunt, J. to Article 9 and have indicated that s16(3) of the Parliamentary Privileges Act contains the true principle to be applied (see Prebble v. Television New Zealand Limited [1994] UKPC 4; [1995] 1 A.C. 321 at 333-4, in the judgment of Lord Browne-Wilkinson delivering the judgment of the Judicial Committee; Hamilton v. Al Fayed [2000] UKHL 18; [2001] 1 A.C. 395 at 403 per Lord Browne-Wilkinson (with whom the other members of the House of Lords agreed)).

[7] [2000] SASC 83; (2000) 76 S.A.S.R. 450 at 468-9.

[11] Cf. Lange v. Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 C.L.R. 520.

[12] Cf. Nicholas v. The Queen [1998] HCA 9; (1998) 193 C.L.R. 173.

[13] Prebble, supra, at 338; cf. Wright v. Lewis (1990) 53 S.A.S.R. 416.

[17] See Enid Campbell "Parliamentary Privilege and Admissibility of Evidence" (1999) 27 F.L.R. at 374 ff.; Clarrie Harders "Parliamentary Privilege - Parliament versus the Courts .." A.L.J., February 1993, page 109.

[19] The Legal Reporter, Vol.18, 22 September 1997, No.15, S.L.1.

[22] Cf. Explanatory Memorandum at pp.3, 6.

[23] [1988] HCA 6; (1988) 164 C.L.R. 365 at 372-3.

[24] Although the grounds in terms challenge only the directions given by the trial judge, it became apparent in the course of argument that there were questions of the potential duplicity and uncertainty of the count (inter alia) which had to be addressed. Accordingly this judgment deals with a number of matters which may not strictly fall within the grounds as expressed.

[25] Murphy, J. in The Queen v. Hoar [1981] HCA 67; [1981] 148 C.L.R. 32 at 41 for example, said: "Many warnings have been issued by courts against the over-use of conspiracy charges (for example see Verrier v. Director of Public Prosecutions (1967) 2 AC 195, at p 223-224 ). The allurements of conspiracy charges are very great. The imprecision of the charges, the vagueness of the evidentiary rules, the tendency for committal hearings to turn into fishing expeditions, often prove attractive to prosecutors.

...

The overzealous use of conspiracy charges proves embarrassing and costly not only to the accused but ultimately to prosecuting authorities and the courts. It brings the administration of criminal justice into disrepute. This is happening in Australia. History shows that the administration of justice will be well served if courts keep a tight rein on the spawning of conspiracy charges."

In the same case, in their joint judgment, Gibbs, C.J., Mason, Aickin and Brennan, JJ. at 38 emphasized that:

"Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed." See also the Report by the Senate Legal and Constitutional Committee on the Criminal Code Bill 1994 and Crimes Amendment Bill 1994 (December 1994) at 23 et seq.

[26] As this aspect was not the subject of argument in the appeal, we express no view as to whether the jury would need to be unanimous with respect to the commission of the same overt act.

[27] The reasoning underlying the requirement of an overt act can be seen in the Senate report (See fn. 25.) See also the Explanatory Memorandum attached to the Crimes Amendment Bill 1994 when it was introduced, in particular the passage:

"Proposed paragraph 86(3)(c) requires that the accused or at least one other party to the agreement committed an overt act pursuant to the agreement. The view is taken that a simple agreement to commit a criminal offence without any further action by any of those party to the agreement is insufficient to warrant the attention of the criminal law. The requirement of overt act is common in American law, see s.5.03(5) US model Penal Code. The requirement was criticised in some submissions on the basis that it is vague. It is understood that the requirement works well in the American jurisdictions which have it and there is no reason to believe it will not work in Australia."

In his Second Reading Speech, the Minister for Justice, the Hon. Duncan Kerr said the measures were included to avoid the offence of conspiracy being overused. These included the performance of an overt act by one of the parties to the agreement. Hansard, House of representatives, Wed. 1 March 1995 MC 1336.

[28] (1987) 27 A.Crim.R. 438 at 441-2.

[29] Gerakiteys v. The Queen [1984] HCA 8; (1984) 153 C.L.R. 317 at 333.

[31] Toohey and Gaudron, JJ. set out the statutory basis of this offence in a footnote to their joint judgment in Peters v. R. [1998] HCA 7; (1998) 192 C.L.R. 493:

"(54) Note that the offence of conspiracy to defraud the Commonwealth now derives from the combined operation of ss 86 and 29D of the Act. Section 86(1) provides that '[a] person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence'. And by s 29D, a person who defrauds the Commonwealth or a public authority under the Commonwealth is guilty of an indictable offence punishable by 1,000 penalty units or imprisonment for ten years, or both."

[37] The Court notes however that the conspiracy alleged here is an agreement to commit an offence under s.29D of the Crimes Act. As earlier pointed out, it is required by s.86(3)(b) that the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement. Where the "fraud" is said to comprise the making of false representations to officers in China to influence them in the performance of their duty in that country, a question might arise whether such a conspiracy is justiciable in Australia (cf. Lipohan v. R. (1999) 200 C.L.R. 485 at 501-3, 534-5; Board of Trade v. Owen [1957] A.C. 602; Attorney General's Reference (No. 1 of 1982) [1983] Q.B. 751). See also R. v. Sekhov (1992) 63 A.Crim.R. 349 at 351-5 where a charge of conspiracy was laid under the now repealed s.86(1)(b) of the Crimes Act (C'th). The Court has heard no argument on this question and accordingly expresses no view.

[38] It should be pointed out that at one point he appeared to be primarily interested in securing a long term carer or "babysitter" for his son.

[43] That being the date of the first application for a visa.

[56] There were other recorded conversations which were not the subject of dispute in the appeal.

[57] The first of the conversations took place at Plume Restaurant on 17 November 1998 between the applicant, Yau and Cheung. (Listing Devices Warrant No. 13.) The other two were conducted between the applicant and Cheung on 7 and 22 February 1999 (Listening Devices Warrant No. 18).

[58] Registered informant 3027 was, of course, Cheung.

[59] R. v. Ireland [1970] HCA 21; (1970) 126 C.L.R. 321

[60] [1978] HCA 22; (1977-1978) 141 C.L.R. 54

[64] [1992] HCA 69; (1992) 176 C.L.R. 177. The principle was held to be applicable to confessional evidence in Cleland v. R. [1982] HCA 67; (1982) 151 C.L.R. 1.

[65] Pollard v. The Queen [1992] HCA 69; (1992) 176 C.L.R. 177 at 205.

[67] Some of the conversations were recorded by other, and undoubtedly lawful, means. In other words, apart from some passages that otherwise may have been inaudible, the evidence would have been before the Court in any event.

[69] Ridgeway v. The Queen [1995] HCA 66; (1995) 184 C.L.R. 19.

[70] Ridgeway, at 40-41, per Mason, C.J., Deane and Dawson, JJ_.;_ at 48-49_,_ per Brennan, J_.;_ at 59-63, per Toohey, J.

[71] At 39; The reasons in the joint judgment were substantially the same as those of Brennan, J. and Toohey, J. (see Nicholas v. The Queen [1998] HCA 9; (1998) 193 C.L.R. 173, at [9] per Brennan C.J.) Gaudron, J. concluded that the appropriate remedy was a stay, and McHugh, J. dissented but recognised the existence of a discretion in terms similar to that of the joint judgment.

[73] See R. v. Bijkerk [2000] NSWCCA 122; (2000) 111 A.Crim.R. 443, at 449, [27], per Grove, J. (with whom Sully and Simpson, JJ. agreed); R. v. Richards [2001] NSWCCA 160; (2001) 123 A.Crim.R. 14, at 17 [16], per Grove, J. (with whom Powell, J.A., and Simpson, J. agreed)

[74] There may be doubt whether the NCA or its officers had the requisite intention to constitute an offence under the section, either for their own part or as aiding and abetting the offence committed by Cheung, but for present purposes we will assume, as did the judge, that the payment was an unlawful act on behalf of the NCA and its agents.

[75] See R. v. Lanteri (1985) 4 N.S.W.L.R. 359, at 360, per Street, C.J.

[76] In their written submissions (par. 108) on this appeal counsel for the respondent denied that any concession had been made to the trial judge that officers of the NCA might have been conspirators. Given that the mens rea for the crime of conspiracy is an intention to carry out the agreed unlawful act (see Yip Chiu-Cheung v. R. [1994] UKPC 2; [1995] 1 A.C. 111, at 117-118; R. v. Salem (1997) 96 A.Crim.R. 421, at 428; R. v. Kapeliotis & Mari (1995) 82 A.Crim.R. 300, at 308) it might well have been arguable that the NCA officers could not have been conspirators. That, however, was not the position adopted before the judge. His Honour (transcript 979) expressly noted the Crown's concession on this issue, which appeared in par. 36 of the written submission before him.

[79] The terms of s.86(3)(c) of the Crimes Act (C'th) require that an overt act be committed by at least one of the conspirators, but the offence remains, substantially, an inchoate one.

[84] His Honour also found that the applicant did not constitute an "unwary innocent", no doubt in acknowledgment of the dichotomy between the trapping of an unwary innocent as opposed to an unwary criminal adopted by Gleeson, C.J in R. v. Sloane (1990) 49 A.Crim.R. 270, at 272-3 (see, too, Brennan, J. in Ridgeway, at, 49-50).

[87] R. v. Gudgeon [1995] QCA 506; (1995) 133 A.L.R. 379 at 390.

[88] The suspicion that there was a corrupt DIMA official involved proved to be unfounded.

[89] [2000] VSCA 145; (2000) 115 A. Crim.R. 413.

[90] [1993] 1 Qd.R. 271.

[91] [1997] 2 Qd.R. 481.

[92] [1978] HCA 22; (1978) 141 C.L.R. 54.

[93] Huang spoke to the applicant by telephone on one occasion, with Cheung acting as interpreter.

[94] The scope of this Court's powers under this sub-section was considered by the High Court in McL. v. The Queen [2000] HCA 46; (2000) 203 C.L.R. 452. The High Court considered that the construction given to the sub-section by this Court in R. v. McL. [1998] VSCA 61; [1999] 1 V.R. 746 was correct.

[95] R. v. Zhan Yu Zhong [2003] VSCA 56, 15 May 2003, at [2]-[4] per Winneke, P.

[96] [2003] HCA 28 (28 May 2003).