Agius v The Queen [2013] HCA 27

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

ROBERT AGIUS APPELLANT

AND

THE QUEEN RESPONDENT

Agius v The Queen [2013] HCA 27 5 June 2013 S28/2013

ORDER

1. Grant of special leave to appeal of 15 February 2013 against the whole of the judgment and order of the Court of Criminal Appeal of New South Wales given and made on 24 May 2011 revoked.

2. Special leave to appeal against the appellant's conviction on count 2 on 31 July 2012 granted.

3. Leave to amend the notice of appeal granted.

4. Treat the appeal as instituted and heard instanter.

5. Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

I M Barker QC with P R Coady for the appellant (instructed by Eddy Neumann Lawyers)

P W Neil SC with S M McNaughton SC for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Agius v The Queen

Criminal law – Conspiracy – Where appellant charged with conspiracy to defraud Commonwealth contrary to ss 86(1) and 29D of Crimes Act 1914 (Cth) – Where appellant charged with conspiracy to dishonestly cause loss to Commonwealth contrary to s 135.4(5) of Criminal Code (Cth) ("Code") – Where both charges related to single scheme to defraud Commonwealth of taxation revenue – Where two charges necessary because of legislative change – Whether s 135.4(5) of Code required prosecution to prove appellant entered into agreement after commencement of provision – Whether "state of affairs" could be physical element of s 135.4(5) of Code – Whether being party to an existing agreement a "state of affairs" – Whether s 135.4(5) of Code given retrospective effect if offence satisfied by continuation of agreement formed before commencement of provision.