Agius v The Queen [2013] HCA 27

Agius v The Queen [2013] HCA 27

Section 135.4(5) of the Criminal Code (Cth) does not require proof of the formation of a new agreement after its commencement; ongoing participation in an existing conspiratorial agreement after 24 May 2001 is sufficient to establish liability for conspiracy under the provision. The physical element may consist of a continuing state of affairs, and no impermissible retrospective operation arises.

Parties
Appellant: Robert Agius; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
05 June 2013
Procedural Posture
Criminal Appeal / Special Leave Appeal and Substantive Appeal Following Conviction
Outcome
Appeal dismissed
Legal Topics
Conspiracy, Statutory Interpretation, Retrospectivity, Common Law and Code Offences
Criminal Law Conspiracy Statutory Interpretation Retrospectivity Common Law and Code Offences

Case Brief

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Parties

Robert Agius

Appellant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Special Leave Appeal and Substantive Appeal Following Conviction

Legal Issues

  1. 1 Whether s 135.4(5) of the Criminal Code (Cth) requires proof of the formation of a new agreement after its commencement
  2. 2 Whether ongoing participation in a pre-existing agreement constitutes a 'state of affairs' sufficient for liability under s 135.4(5)
  3. 3 Whether s 135.4(5) is given retrospective effect by covering ongoing conspiracies formed before its commencement

Ratio Decidendi

Section 135.4(5) of the Criminal Code (Cth) does not require proof of the formation of a new agreement after its commencement; ongoing participation in an existing conspiratorial agreement after 24 May 2001 is sufficient to establish liability for conspiracy under the provision. The physical element may consist of a continuing state of affairs, and no impermissible retrospective operation arises.

Court Disposition

Appeal dismissed

Orders

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