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District Court 1 October 2010

R v Cacu

[2010] NSWDC 231

Fraud & dishonesty
CRIMINAL CONVICTION APPEAL

Citation: R v Cacu [2010] NSWDC 231
Court: District Court of New South Wales
Date: 1 October 2010
Judge(s): Bennett SC DCJ

Background

The appellant was convicted in the Local Court after a defended hearing of having in his custody $15,000 in cash that was reasonably suspected of being stolen or otherwise unlawfully obtained, contrary to s 527C(1)(a) of the Crimes Act 1900. There was no dispute that he had the money. The central questions were whether the money could objectively be suspected of being stolen or unlawfully obtained, and if so, whether the appellant had established he had no reasonable grounds for that suspicion.

The police had stopped a vehicle in which the appellant and two other men were travelling. Officers found the $15,000 in the pocket of the appellant's jacket, along with three mobile phones in the car that contained no text messages.

The appellant gave evidence explaining the money as funds withdrawn from a bank account in April 2009, kept at home, and intended to be used to purchase travel tickets for his mother. On appeal to the District Court, fresh evidence including bank statements and a street map was admitted in the interests of justice.

  • Whether the Crown had proven beyond reasonable doubt that the $15,000 could be reasonably suspected of being stolen or otherwise unlawfully obtained under s 527C(1)(a) of the Crimes Act 1900
  • Whether the appellant had established on the balance of probabilities that he had no reasonable grounds for suspecting the money was stolen or unlawfully obtained under s 527C(2)
  • Whether the District Court should apply a two-tier analytical approach, assessing the Crown's case separately from the appellant's explanation before considering the defence

Decision

Bennett SC DCJ confirmed the correct analytical approach as two-tiered: the Crown must first satisfy the court beyond reasonable doubt that the money may reasonably be suspected of being stolen or unlawfully obtained, and only if that threshold is met does the court turn to whether the accused has established on the balance of probabilities that he had no reasonable grounds for that suspicion. The court accepted that doubt arising from the appellant's explanation cannot be used to shore up the Crown's primary case.

On the first question, the court found the combination of circumstances sufficient to meet the beyond reasonable doubt standard. Those circumstances included the behaviour of the appellant and the other men near the vehicle, their presentation when dealing with police, the presence of three mobile phones with no text messages, and the significant sum of cash carried in a jacket pocket. The bank account transaction history also provided further support, as none of the recorded transactions in the period leading up to the arrest were consistent with holding $15,000 in cash.

On the second question, the court rejected the appellant's explanation as implausible. It found it highly unlikely that someone would withdraw $15,000 from an interest-bearing savings account three months before it was needed, store it at home, and carry it to a travel agent on the day of arrest, particularly when the bank was located near the travel agent. The court was not persuaded, on the balance of probabilities, that the money was the same cash withdrawn in April 2009 or that it was held for the purposes claimed.

Relevantly, the court also disregarded evidence that police knew the appellant "from other circumstances," finding it irrelevant and noting that the appellant had not put his character in issue.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • Under s 527C of the Crimes Act 1900, a conviction for goods in custody requires the Crown to prove beyond reasonable doubt that the thing may objectively be reasonably suspected of being stolen or unlawfully obtained, with "suspicion" assessed on an objective standard rather than the subjective views of police at the time of arrest.
  • A two-tier analytical approach applies: the Crown's burden must be assessed independently before the court turns to whether the accused has established the statutory defence on the balance of probabilities.
  • Doubt arising from an accused's explanation cannot be used to supplement or bolster the Crown's case in establishing the primary element of the offence.
  • Circumstantial evidence in combination, including the conduct of persons present, multiple phones devoid of messages, and a large sum of cash on the person, can collectively satisfy the beyond reasonable doubt standard for reasonable suspicion, even absent direct evidence of a specific unlawful act.
  • In dismissing the appeal, the court confirmed that bank account transaction records admitted as fresh evidence are capable of being relevant to whether cash found on an accused can be traced to a legitimate source, and an implausible explanation for the provenance of cash will not satisfy the balance of probabilities defence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 527C
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Evidence Act 1995 (NSW), s 55

Cases
- Anderson v The Judges of the District Court (NSW) (1992) 27 NSWLR 701
- R v Dittmar [1973] 1 NSWLR 722
- Purdon v Dittmar [1972] 1 NSWLR 94
- Grant v R (1981) 147 CLR 503
- R v Abbrederis [1981] 1 NSWLR 530
- Cleary v Hammond [1976] 1 NSWLR 111
- Ex Parte Patmoy; Re Jack (1944) 44 SR (NSW) 351
- Haken v Johnson (NSWSC, Wood J, 15 October 1993, unreported)