Citation: Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 6 September 2011
Judge(s): Basten JA; Simpson J; Garling J
Background
The appellant was convicted by a District Court jury of dealing with money intended to become an instrument of crime, contrary to s 400.5(1) of the Criminal Code Act 1995 (Cth), involving a value exceeding $50,000. He was sentenced to two years and six months' imprisonment with a non-parole period of eighteen months, and ordered to pay a $25,000 fine.
The prosecution's case centred on 13 bank transactions the appellant personally conducted, each involving remittances of less than $10,000 sent overseas, forming part of a broader series of 142 such transactions totalling approximately $957,000 between January 2003 and September 2004. The prosecution alleged the money was intended to become an instrument of crime by facilitating a structuring offence under s 31 of the Financial Transaction Reports Act 1988 (Cth), which prohibits conducting transactions specifically to avoid cash-reporting obligations.
The appellant applied for leave to appeal against both conviction and sentence. The Court allowed the appeal against conviction, making it unnecessary to address the sentence ground.
Legal Issues
- Whether the same conduct alleged as the "dealing" could also constitute the intended indictable offence that would make the money an "instrument of crime" under s 400.5(1)(b)(ii) of the Criminal Code.
- Whether the prosecution was required to identify a specific indictable offence in order to establish that money was intended to become an "instrument of crime."
- What effect s 400.13 of the Criminal Code (which excuses the prosecution from proving a specific particularised offence) has on the prosecution's obligation to identify the relevant category of indictable offence.
Decision
The Court of Criminal Appeal held that the conviction could not stand and that the appellant was entitled to an acquittal. All three judges arrived at the same conclusion, though with differences in emphasis.
A central problem identified by the Court was the circularity in the prosecution's case. The conduct alleged as the "dealing" (the bank remittances below the reporting threshold) was effectively the same conduct relied upon as the intended indictable offence making the money an "instrument of crime." Basten JA found that this conflation was legally impermissible: the intended crime must be something separate from and consequent upon the dealing itself, not constituted by the very same transactions.
The Court also addressed the requirement to identify the intended indictable offence. While s 400.13 relieves the prosecution from proving a fully particularised specific offence (that is, one identified by reference to person, date, time, place, and other specific circumstances), it does not excuse the prosecution from identifying the relevant category or type of indictable offence at all. The prosecution here made no adequate attempt to identify an indictable offence, such as a taxation offence, that could have transformed the money into an instrument of crime.
As a result, the jury was not in a position to conclude, on a proper legal basis, that the money was intended to become an instrument of crime. The misdirection and the deficiency in particularisation meant the conviction could not be sustained.
Orders Made
• The appeal must be upheld and the orders proposed by Basten JA made.
Key Takeaways
- Under s 400.5(1)(b)(ii) of the Criminal Code, the intended indictable offence that would make money an "instrument of crime" must be distinct from, and not constituted by, the very same transactions alleged as the "dealing" with that money.
- A prosecution for the "instrument of crime" limb of s 400.5 requires identification of the relevant category of indictable offence; the jury cannot convict without having that offence placed before them.
- Section 400.13 of the Criminal Code narrows only the degree of particularisation required: the prosecution is excused from proving a fully particularised specific offence, but is not relieved of the obligation to identify the type or class of indictable offence intended.
- The Court of Criminal Appeal confirmed that deficient particulars combined with an absence of any identified indictable offence rendered the conviction unsafe, entitling the appellant to an acquittal rather than merely a retrial.
- Where the prosecution relies on structuring conduct (transactions arranged to avoid reporting thresholds) as both the "dealing" and the intended crime, the charge fails because the same physical acts cannot simultaneously constitute the dealing element and the separate intended offence element.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 400.1, 400.2, 400.3, 400.4, 400.5, 400.6, 400.7, 400.8, 400.9, 400.12, 400.13; Division 400, Chapter 10
- Financial Transaction Reports Act 1988 (Cth), ss 3, 4, 7, 31
- Criminal Appeal Act 1912 (NSW), s 6
Cases:
- Ansari v R [2007] NSWCCA 204; 70 NSWLR 89
- Ansari v The Queen [2010] HCA 18; 241 CLR 1299
- Arora v Commonwealth Director of Public Prosecutions [2011] NSWSC 552
- He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523
- R v Saengsai-or [2004] NSWCCA 108; 61 NSWLR 135
- Sloggett v Adams (1963) 70 WN (NSW) 206