Citation: DPP (Cth) v Cheng [2015] NSWDC 326
Court: District Court of New South Wales
Date: 7 December 2015
Judge(s): Judge S Norrish QC
Background
The accused faced a single charge under section 400.3 of the Criminal Code Act 1995 (Cth) of dealing with money intending it would become an instrument of crime. The prosecution alleged that on 11 separate occasions between May and July 2012, the accused attended three money remitter businesses in Ashfield, Eastwood and Haymarket and presented large sums of cash, ranging from AU$60,000 to AU$159,800, requesting remittance to accounts in China. The total amount remitted was AU$1,098,066.
On the first visit to each business, the accused produced a forged NSW driver licence bearing his photograph but the false name "Nick Wang," a false address and a false date of birth. He signed remittance forms in that false name and supplied a mobile phone registered to another person. The forged licence was later recovered from a residence the accused regularly attended.
At the close of the prosecution case, the accused applied for a directed verdict of not guilty, arguing the Crown could not establish the required elements of the offence. The prosecution opposed the application. The court received detailed written and oral submissions from both sides.
Legal Issues
- Whether an offence under section 140(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the AML Act) constitutes a relevant indictable offence capable of grounding a charge under section 400.3 of the Criminal Code.
- Whether the accused's possession and handing over of money on each occasion was capable of amounting to a "use" of that money in the commission of, or to facilitate the commission of, a section 140(1) AML Act offence, such that the money could be characterised as an "instrument of crime."
- Whether the reasoning in Milne v The Queen (2014) 252 CLR 149 (where the High Court found a transaction was merely a condition precedent rather than a relevant "use") applied to the facts of this case.
- Whether the purpose of the transfer or the intentions of the recipients were relevant to establishing the accused's intent under section 400.3.
- Whether sufficient individual incidents satisfied the elements of section 140(1) to establish that more than AU$1 million was involved, as required by section 400.3.
Decision
Issue 1: Section 140(1) AML Act as a relevant indictable offence
The court accepted the Crown's analysis and held that a section 140(1) AML Act offence is a relevant indictable offence for the purposes of section 400.3 of the Criminal Code (at [98]). The court also accepted the Crown's account of the structural relationship between section 400.3 of the Code and section 140 of the AML Act (at [98]).
Issue 2: Whether money was "used" in commission of the offence, distinguishing Milne
The court rejected the accused's argument that the facts were analogous to Milne. In Milne, the sale of shares was merely a condition precedent to a future tax offence; the transaction was not itself a use of property in the commission of crime (at [99]). Here, the court found that possession of the money was integral to the commission of the section 140(1) offence. The purpose of receiving the designated remittance service was to transfer the money in the accused's possession, and that created the required "instrumental connection" (at [99]-[100]). The court was satisfied that both temporal separation and instrumental connection were established on the evidence (at [99]).
Issue 3: Relevance of transfer purpose and recipient intentions
The court held that the purpose of the transfer and the intentions of the recipients are irrelevant to establishing whether money constitutes an instrument of crime under section 400.3 (at [102]). The relevant intent is directed to the accused's act of commencing to receive a designated service by using a false customer name, not to any particular purpose the money would serve once received by others (at [103]).
Issue 4: Whether sufficient incidents satisfied section 140(1) to reach the AU$1 million threshold
The court declined to treat this as a question of law. Whether sufficient incidents constituted commencement of receipt of a designated service under section 140(1) to reach the statutory threshold is a question of fact for the jury to determine (at [107]).
Orders Made
- Application for directed verdict of not guilty declined.
Key Takeaways
- The District Court held that a section 140(1) AML Act offence, receiving a designated service using a false customer name, can constitute a relevant indictable offence for the purposes of a section 400.3 Criminal Code charge, even though it carries a far lower maximum penalty than the money-laundering provision itself (at [98]).
- Possession of money handed over to a money remitter in furtherance of a false-name remittance transaction is capable of amounting to a "use" of that money in the commission of or to facilitate the commission of an offence, provided the required temporal separation and instrumental connection are both present (at [98]-[99]).
- A critical distinction from Milne v The Queen exists where the money itself is integral to the designated service being provided: in such cases the transaction is not merely a condition precedent to a separate offence but has a direct instrumental connection to the offending conduct (at [99]).
- Under section 400.3 of the Criminal Code, the purpose for which intended recipients might use transmitted funds is irrelevant to establishing the accused's intent that money become an instrument of crime (at [102]-[103]).
- Whether sufficient individual transactions each satisfied the elements of the nominated ancillary offence so as to meet the statutory dollar threshold is a factual question for the jury, not a question of law to be resolved on a no-case application (at [107]).
Legislation and Cases Referenced
Legislation
- Anti- Money Laundering and Counter Terrorism Act 2006 (Cth)
- Criminal Code Act 1995 (Cth)
- Financial Transactions Reports Act 1988
Cases
- Arora v Director of Public Prosecutions (Cth) [2011] NSWSC 552
- Chen v DPP (Cth) [2011] NSWCCA 205
- Milne v The Queen, (2014) 252 CLR 149
- Shi v R [2014] NSWCCA 276