1. The relevant part of the judge's charge to the jury was in the following terms:

In the criminal law and relevant to this case, conspiracy is the agreement or combination of more than one person to commit an unlawful act. The essence of the offence of conspiracy is the agreement or combination to commit an unlawful act. Much of the evidence in this case seeks to prove the existence of the agreement or combination by inference from an accumulation of facts.

The charge against Wooi and Wong appears in the first document in your iPads. The offence of conspiracy to defraud is a type of criminal conspiracy. The wording of the charge defines the nature of the alleged conspiracy by combining the two elements of the offence, first, between 1 December 2017 and 5 September 2019, there was an agreement between Wooi, Wong, Hui, Ng or Darren, and unnamed persons, and (b), second, to defraud others of their moneys by making forced representation to those others that they were suspected of being engaged in criminal activity overseas and exoneration was available by transfer of funds as directed. The charge uses the old fashioned word diverse, which means several.

To find either of these accused guilty of the charge, you must be satisfied beyond reasonable doubt of two things, (a) there was a conspiracy of the kind alleged by the prosecution and (b) each accused was a party to that conspiracy. As to (a), the prosecution alleges at the time of this agreement or combination, each of Wooi and Wong intended to achieve the inducement of others by dishonest means. The prosecution alleges the dishonest means were the making of the false representations, namely to other persons that they were suspected of being engaged in criminal activity overseas and exoneration was available by the transfers of funds as directed.

Helpfully, neither Wooi or Wong takes issues with the existence of a conspiracy of the kind alleged in the charge against each of them. What they put in issue is the second element, each denies he was a party to this conspiracy. What that means is that they do not take issue with the existence of a conspiracy to defraud by means of the false representations but they were not part of the conspiracy.

1. It can be seen that, in instructing the jury that the existence of the conspiracy was not in issue, the judge referred to the applicants having intended to achieve the inducement of others by dishonest means. In doing so, he indicated that this was an aspect of an element of the offence that was not contested.
2. Towards the end of the charge, the judge referred to submissions made by counsel for Mr Wooi about the absence of certain evidence, including a submission to the effect that police had failed to undertake certain inquiries, and in particular that they had not obtained mobile phone data and call charge records that could have been relevant to establishing the location from which calls and text messages were sent:

Now in order to evaluate that submission, and similar submissions were made by [counsel for Mr Wooi] along the way of his closing address. I would direct you as follows, and this is a direction, it is not a comment: (a) you must not speculate about what if anything the enquiries may have revealed; (b) you must not place any weight on the failure to make those enquiries; (c) you must decide the case solely on the evidence presented in the trial; and (d) [counsel for Mr Wooi] argues that in the absence of his further evidence, the link or the missing link of Wooi's knowledge to conspire is not made out to the requisite standard of proof, which is beyond reasonable doubt.

1. After the jury retired to deliberate, they sent a note to the judge in relation to this last matter. The note referred to this part of the judge's charge and said 'We missed writing them all down'. The judge read this passage to counsel:

And then what I said was (a), you must not speculate about what if anything the enquiries may have revealed; (b), you must not place any weight on the failure to make those enquiries; (c), you must decide the case solely on the evidence presented in the trial; and (d), [counsel for Mr Wooi] argues that in the absence of this[6] further evidence the link or the missing link of Wooi's knowledge to conspire is not made out to the requisite standard of beyond reasonable doubt. Would you agree, gentlemen that that's probably what the jury's driving at in that question?

1. All counsel agreed. After the jury returned to court, the judge duly read the above passage back to them. The transcript then records a juror asking the judge to repeat 'that last one'. The judge then again read out the matter identified by para (d):

HIS HONOUR: The last one is '(d), [counsel for Mr Wooi] argues that in the absence of this further evidence the link or the missing link of Wooi's knowledge to conspire is not made out to the requisite standard of beyond reasonable doubt'. And I'll repeat it again if none of you take shorthand. I don't think anyone does these days.

1. We interpolate that the jury did not ask for elaboration on what the direction meant, and the response did no more than address the jury's implicit request that they be able to write down what the judge had said.
2. No exceptions were made by counsel to the judge's charge or the further direction.

1. The applicants submitted that the judge ought to have directed the jury as to the elements of the offence of conspiracy to defraud. In particular, they submitted that the judge failed to direct the jury as to the mental element of the offence, including that the applicants intended persons to be defrauded. In addition, the applicants submitted that the judge had directed the jury in a confusing way as to the matters that were not in dispute.
2. The respondent submitted that the judge's charge was in keeping with the Jury Directions Act discussion and the way in which the applicants presented their cases. It was noted that defence counsel had addressed the jury about whether their clients were 'involved' in the conspiracy or 'knew' about it, and the judge referred the jury to those arguments.
3. The respondent further submitted that it was relevant that no counsel, immersed in the atmosphere of the trial, took exception to the charge. In any event, it was submitted, there was no substantial miscarriage of justice because on the evidence led at trial the convictions were inevitable.[7]

1. It is convenient to address the elements of the common law offence of conspiracy before coming to the judge's charge to the jury.
2. The law as to conspiracy was substantially reformed by the Crimes (Conspiracy and Incitement) Act 1984. The common law offence of conspiracy was largely abolished. One exception concerns the common law offence of conspiracy to defraud. Section 321F of the Crimes Act 1958 relevantly provides:

Abolition of certain offences of conspiracy at common law

(1) The offence of conspiracy at common law is hereby abolished.

(2) Nothing in subsection (1) shall affect the offence of conspiracy at common law so far as it relates to conspiracy to cheat and defraud and conspiracy to defraud.

...

(4) An indictment charging an offence of conspiracy to cheat and defraud or conspiracy to defraud must not be filed without the approval of the Director of Public Prosecutions or of a person authorized by the Director of Public Prosecutions to give approval for the purposes of this subsection.

1. Section 321D addresses certain aspects of common law conspiracy to defraud:

Application of certain provisions

Sections 321(2) and (3) and 321B shall apply, so far as they are capable of doing so and with such changes as are necessary, for the purpose of determining whether a person is guilty of conspiracy under any enactment other than section 321 or of conspiracy to cheat and defraud or of conspiracy to defraud.

1. Section 321(1) creates the new statutory offence and sub-s (2) contains the stipulations which, by virtue of s 321D, apply also to conspiracy to defraud:[8]

Conspiracy to commit an offence

(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, the person is guilty of the indictable offence of conspiracy to commit that offence.

(2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both the person and at least one other party to the agreement -

(a) must intend that the offence the subject of the agreement be committed; and

(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

1. The references to an 'offence' in s 321(2) must, in order for the provision to have application to conspiracy to defraud at common law as s 321D provides, be read as references to the defrauding which is the subject of the agreement constituting the conspiracy.
2. Otherwise, the offence of conspiracy to defraud continues to be defined by the common law. Although the judge does not appear to have been referred to the elements of that offence, they need to be identified in order to decide the present matter.
3. The notion of dishonesty for these purposes was considered by the High Court in Peters v The Queen ('Peters').[9] By way of background, the House of Lords had said in Scott v Metropolitan Police Commissioner that

it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.[10]

1. This is not an exhaustive statement of the offence. It may, for example, be committed by deceiving a person into acting contrary to a public duty.[11]
2. Embedded in the above formulation are two implicit references to the state of mind of the accused, namely the making of an agreement, and the agreement to deprive or injure by dishonesty. Toohey and Gaudron JJ in Peters described dishonesty as arising at two levels:

[W]hen properly analysed, 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.[12]

1. McHugh J, with whom Gummow J agreed, ascribed a specific role to intention in the offence of conspiracy to defraud:

One of the difficulties in dividing the offence of conspiracy into the traditional elements of an actus reus and a mens rea is that the agreement of the parties to pursue a common and unlawful design is traditionally regarded as the actus reus of the offence. Yet such an agreement, assuming it to be voluntary, necessarily includes a mental element. At the very least, there must be an intention to enter into the agreement, and the present state of the authorities suggests that there can be no conspiratorial agreement unless the accused and his or her co-conspirators also intend that the common design should be carried out.[13]

1. McHugh J expressed the mental element of the crime of conspiracy to defraud as 'the intention to prejudice the interests of a third person by the use of means that are dishonest'.[14]
2. Dishonesty does not, however, necessarily connote the pursuit of a purpose in the sense of motive. In Wai Yu-tsang v The Queen, the Privy Council drew the distinction in the following terms:

The question whether particular facts reveal a conspiracy to defraud depends upon what the conspirators have dishonestly agreed to do, and in particular whether they have agreed to practise a fraud on somebody. For this purpose it is enough for example that ... the conspirators have dishonestly agreed to bring about a state of affairs which they realise will or may deceive the victim into so acting, or failing to act, that he will suffer economic loss or his economic interests will be put at risk. It is however important in such a case ... to distinguish a conspirator's intention (or immediate purpose) dishonestly to bring about such a state of affairs from his motive (or underlying purpose). The latter may be benign to the extent that he does not wish the victim or potential victim to suffer harm; but the mere fact that it is benign will not of itself prevent the agreement from constituting a conspiracy to defraud. Of course, if the conspirators were not acting dishonestly, there will have been no conspiracy to defraud ...[15]

1. The need to establish that the accused intended that the conspiracy be put into effect, affirmed by McHugh J in Peters, has been identified in cases involving conspiracy to commit a specific offence. For example, in Trudgeon v The Queen,[16] Gleeson CJ said:

One thing that is clear ... is that to be liable as a conspirator an accused person must have an intention that (so far as is presently relevant) an unlawful act occur. ... It does not suffice that there is an expectation that such an act will occur.[17]

1. The requirement of intention was further explained by Lord Bridge of Harwich in R v Anderson ('Anderson'), involving a conspiracy to break out of prison:

There remains the important question whether a person who has agreed that a course of conduct will be pursued which, if pursued as agreed, will necessarily amount to or involve the commission of an offence is guilty of statutory conspiracy irrespective of his intention, and, if not, what is the mens rea of the offence. I have no hesitation in answering the first part of the question in the negative. There may be many situations in which perfectly respectable citizens, more particularly those concerned with law enforcement, may enter into agreements that a course of conduct shall be pursued which will involve commission of a crime without the least intention of playing any part in furtherance of the ostensibly agreed criminal objective, but rather with the purpose of exposing and frustrating the criminal purpose of the other parties to the agreement.[18]

1. Finally, in Yip-Chiu-Cheung v The Queen, concerning a conspiracy to traffick drugs, in which an undercover office agent was involved, the Privy Council confirmed the role of intention as an element of the offence, as follows:

On the principal ground of appeal it was submitted that the trial judge and the Court of Appeal were wrong to hold that Needham, the undercover agent, could be a conspirator because he lacked the necessary mens rea or guilty mind required for the offence of conspiracy. It was urged upon their Lordships that no moral guilt attached to the undercover agent who was at all times acting courageously and with the best of motives in attempting to infiltrate and bring to justice a gang of criminal drug dealers. In these circumstances it was argued that it would be wrong to treat the agent as having any criminal intent, and reliance was placed upon a passage in the speech of Lord Bridge of Harwich in [Anderson]; but in that case Lord Bridge was dealing with a different situation from that which exists in the present case. There may be many cases in which undercover police officers or other law enforcement agents pretend to join a conspiracy in order to gain information about the plans of the criminals, with no intention of taking any part in the planned crime but rather with the intention of providing information that will frustrate it. It was to this situation that Lord Bridge was referring in [Anderson]. The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence. As Lord Bridge pointed out, an undercover agent who has no intention of committing the crime lacks the necessary mens rea to be a conspirator.

The facts of the present case are quite different. Nobody can doubt that Needham was acting courageously and with the best of motives; he was trying to break a drug ring. But equally there can be no doubt that the method he chose and in which the police in Hong Kong acquiesced involved the commission of the criminal offence of trafficking in drugs by exporting heroin from Hong Kong without a licence. Needham intended to commit that offence by carrying the heroin through the customs and on to the aeroplane bound for Australia.[19]

1. Leaving aside the position of undercover operatives, the significance of these cases for present purposes lies in the recognition that conspiracy to commit an offence requires proof of an intention to carry out the agreement to commit the relevant unlawful act.
2. There is no reason in principle why the position should be any different when it comes to common law conspiracy to defraud. But in any event, the matter is now dealt with by statute. As described earlier, the Crimes Act now overlays the common law of conspiracy. The effect of s 321D, read with s 321(2)(a), is that the accused must intend that the defrauding which is the subject of the agreement take place.[20]
3. For present purposes, it suffices to identify the elements of common law conspiracy to defraud as: (a) an agreement by two or more persons; (b) to prejudice or imperil a person's legal rights or interests; (c) by dishonest means; and (d) with the intention that the agreement be carried into effect.

1. The jury was not specifically directed as to the need for the prosecution to prove the agreement to use dishonest means or as to the intention of the accused that the agreement be carried into effect. It is evident that this was because the question upon which the parties joined issue was whether the applicants were parties to the agreement to defraud which had been alleged and which they accepted had existed. The absence of express reference to dishonesty is explained by the nature of the agreement which it was agreed had existed, namely an agreement to defraud third persons of their money. That agreement was intrinsically dishonest. The same cannot necessarily be said of the absence of reference to the applicants' intention to carry the agreement into effect.
2. A failure in a conspiracy case to direct the jury as to the intention of the accused that the relevant agreement be carried into effect will not inevitably lead to a miscarriage of justice. In Griffiths v The Queen, Brennan, Dawson and Gaudron JJ said:

A plea of not guilty puts all elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element.[21]

1. It was not explicitly conceded in the present case that the element of intention to carry out the agreement was established, but it may be accepted that it was implicitly conceded that it would be established if the jury were persuaded that the applicants were party to the agreement. But that is not determinative of the adequacy of the directions. The Full Court held in Guy v The Queen ('Guy') that entry into the agreement alleged in that case (to traffick heroin) 'carried with it the necessary implication that those making the agreement intended to carry it into effect'.[22] As a result, nothing turned on the judge's omission to direct the jury specifically on the question of intention. Similarly, here, it could be said that the agreement to defraud third parties carried the same implication as to the intentions of the parties to the agreement, and nothing needed to be said about those intentions.
2. The absence of a direction to the jury about an element of the offence charged must now be considered having regard to the Jury Directions Act. It has been noted that no directions were sought by any party in the present case as to the mental element of the offence. In those circumstances, the question becomes whether there were substantial and compelling reasons for the judge to instruct the jury that the offence required proof of the applicants' intention to carry the agreement into effect. In our view, there were not. In the particular circumstances of this case, the applicants accepted that the conspiracy alleged by the prosecution existed. That conspiracy was by its nature dishonest and, as in Guy, the parties to it implicitly intended it to be carried into effect. The applicants had accepted by the way they ran their cases that there was no issue as to their intention, if the jury concluded that they were parties to the agreement to defraud. Identifying the need for the jury to be satisfied of that requirement of the offence, despite it not being put in issue, might have had the potential to confuse rather than assist the jury. There were not substantial and compelling reasons for giving the jury directions about the matter.
3. Regrettably, however, the judge's directions did enter upon this subject on two occasions, and they did so in a way that risked serious confusion on the part of the jury. We have described above how the jury asked for part of the charge to be repeated, albeit without asking in terms for an explanation of it.
4. The first direction was when the judge told the jury that the existence of the conspiracy was not in issue. As described above, that concession on the part of the applicants carried with it a concession that the issues of dishonesty and intention to carry out the agreement were not in issue, in the sense that the agreement was an agreement to use dishonest means and that the persons who were parties to the agreement intended that it be carried into effect. But in elaborating on that aspect of the case, the judge went further by saying, in respect of the matters that were not in issue, that the prosecution alleged that 'each of Wooi and Wong intended to achieve the inducement of others by dishonest means'.
5. Self-evidently, that was not an agreed fact, albeit that it was accepted, at least implicitly, that if the applicants were found to be parties to the agreement, that conclusion would carry with it that they intended to achieve the inducement of others by dishonest means.
6. Taken alone, this statement by the judge might be considered not to have caused a substantial miscarriage of justice, given that it was made clear to the jury that the main question for their decision was whether it had been proved that the applicants were parties to the agreement. But it was at least confusing. Even if it is thought that the jury would not have taken literally the incorrect suggestion that it was not in issue that the applicants intended to achieve the inducement of others by dishonest means, the mental element referred to by the judge was entirely unexplained and was not the subject of any further direction.
7. The potential for this aspect of the directions to give rise to a substantial miscarriage of justice was compounded by a further part of the directions, to which we have already referred. On that occasion, the judge answered a question concerning a direction he had given about the absence of certain evidence, including as to mobile telephone towers and call charge records. As part of his answer to that question, the judge said that counsel for Mr Wooi had argued that in the absence of the evidence, 'the link or the missing link of Wooi's knowledge to conspire is not made out to the requisite standard of proof, which is beyond reasonable doubt'.
8. This statement directly suggested that there was a live issue in the case as to Mr Wooi's 'knowledge to conspire'. Quite apart from the absence of explanation of that expression, the reference again indicated that there was a mental element of the offence, this time one upon which the jury was required to decide. The only other reference in the directions to such an element had been to the effect that it was agreed that the applicants intended to achieve the inducement of others by dishonest means. And although elsewhere in his charge the judge reminded the jury that defence counsel had referred in closing arguments to the knowledge of the applicants about the conspiracy, this addressed their participation in the agreement, not their intention in doing so.
9. The effect of these references to intention and the need to prove knowledge was cumulative. In the circumstances, the jury was directed that the offence charged had a mental element of some kind, which was in some way a live issue in the trial, but they were not told what that element was, or how it was to be approached. At the same time, they had been told that the applicants did not contest that they intended to achieve the inducement of others by dishonest means. This unfortunate combination gave rise to a real risk that the jury would not have correctly understood the legal principles that applied to the evidence and directions about the states of mind of the applicants, or the scope of the issues in dispute in the trial.

1. The respondent submitted that a substantial miscarriage of justice had not been demonstrated because counsel for the applicants had taken no exception to the judge's charge. But even allowing for the advantage enjoyed by counsel being imbued with the atmosphere of the trial, it was not suggested that there could have been any sound forensic basis for counsel not having sought a redirection. The directions that were given, taken as a whole, risked departing from the agreed scope of the trial and leaving the jury to decide an undefined issue about the mental element of the offence without any directions to assist them in doing so. We do not agree that this situation might be ameliorated by speculating that counsel imbued with the atmosphere of the trial made a forensic decision to let the matter rest. Unfortunately, counsel on both sides simply did not draw the judge's attention to the deficiencies in the charge.[23]
2. The aspects of the judge's directions to the jury to which we have referred were errors in the trial that were fundamental or serious departures from the proper processes of trial, so as necessarily to give rise to a substantial miscarriage of justice. No issue of 'inevitability' of the convictions arises.[24]
3. Accordingly, leave to appeal should be granted and the appeals must be allowed. The applicants' convictions should be set side and orders made for a new trial.

[1] Formally, this submission was advanced only by Mr Wong, but it was effectively adopted on behalf of Mr Wooi when the applications were heard together. At the hearing, counsel for Mr Wooi did not press various other grounds advanced in his application.

[2] DPP v Wooi [2024] VCC 1379 [73] (Judge Lauritsen).

[3] Section 61 permits the judge to direct the jury as to proof beyond reasonable doubt of elements of the offence charged, but is silent as to elements that are not in issue.

[4] Victorian Criminal Charge Book (Judicial College of Victoria) [6.1.5].

[5] The prosecutor invited the judge to explain to the jury certain other matters raised in the charge book, which are not relevant for present purposes.

[6] The passage read back is slightly different to the transcribed direction, presumably reflecting the judge's correcting of that transcript.

[7] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 480-1 [30]-[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

[8] Section 321B is not relevant for present purposes.

[9] [1998] HCA 7; (1998) 192 CLR 493.

[10] [1974] UKHL 4; [1975] AC 819, 840 (Viscount Dilhorne, Lord Reid agreeing at 834, Lord Diplock agreeing at 840, Lord Simon of Glaisdale agreeing at 841, Lord Kilbrandon agreeing at 841).

[11] Welham v DPP [1961] AC 103; Wai Yu-tsang v The Queen [1992] 1 AC 269, 277 (Lord Goff of Chieveley for the Court); Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 525 [73]-[74] (McHugh J, Gummow J agreeing at 533 [93]); R v Walsh [1984] VicRp 39; [1984] VR 474, 480 (O'Bryan J); R v Horsington [1983] 2 NSWLR 72, 75 (Glass JA, Street CJ agreeing at 72, Lusher J agreeing at 77).

[12] [1998] HCA 7; (1998) 192 CLR 493, 509 [33].

[13] Ibid [55] 515-16 (citations omitted, emphasis added).

[14] Ibid 530 [85]. Kirby J disagreed with McHugh J as to the elements of the offence: at 542 [114], 551 [135].

[15] Wai Yu-tsang v The Queen [1992] 1 AC 269, 279-80 (Lord Goff of Chieveley for the Privy Council).

[16] (1988) 39 A Crim R 252. This case involved a conspiracy to supply heroin.

[18] [1986] AC 27, 38-9 (Lord Scarman agreeing at 34, Lord Diplock agreeing at 34, Lord Keith of Kinkel agreeing at 34, Lord Brightman agreeing at 40).

[19] [1994] UKPC 2; [1995] AC 111, 117-18 (Lord Griffiths for the Court) (emphasis added).

[20] This operation of s 321D was confirmed in relation to the statutory offence of conspiracy in R v Moran [1998] VSCA 64; [1999] 2 VR 87, 92 [17] (Kenny JA, Phillips CJ agreeing at 88 [1], Batt JA agreeing at 88 [2]) and Guy v The Queen (1991) 57 A Crim R 21, 28 (Crockett, Fullagar and Phillips JJ).

[21] [1994] HCA 55; (1994) 69 ALJR 77, 79; [1994] HCA 55.

[22] (1991) 57 A Crim R 21, 29 (Crockett, Fullagar and Phillips JJ).

[23] R v Caine (1990) 48 A Crim R 464, 475 (Crockett, McGarvie and Beach JJ); R v Wright [1999] VSCA 145; [1999] 3 VR 355; Portea v The King [2025] VSCA 255 [83] (Priest and Kaye JJA).

[24] Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Awad v The Queen [2022] HCA 36; (2022) 275 CLR 421; Karam v The King [2023] VSCA 318 [216] (Beach, McLeish and Kennedy JJA); Mokbel v The King [2025] VSCA 243 [590] (McLeish, Kennedy and Kaye JJA).