Citation: Yacoub v R [2021] NSWCCA 166
Court: NSW Court of Criminal Appeal
Date: 19 July 2021
Judge(s): Basten JA (with Walton J and Adamson J agreeing)
Background
The appellant was arrested in March 2017 in a car park in southern Sydney while in possession of nearly $500,000 in cash. Police observed him receive two bags containing the money from another person, and a fingerprint belonging to that person was found inside one of the bags. The appellant was tried jointly with his brother before a jury in November 2019.
The appellant gave evidence that he had lawfully obtained the money and was carrying it to the car park to purchase cryptocurrency. The jury rejected that account and returned guilty verdicts on one count each of dealing with property valued at more than $100,000 where there were reasonable grounds to suspect it was proceeds of crime, contrary to section 193C(1) of the Crimes Act 1900 (NSW). The appellant was subsequently sentenced to three years' imprisonment with a non-parole period of two years and three months.
The appellant filed applications for leave to appeal against both conviction and sentence, both out of time. The Crown did not oppose the extensions of time but opposed both applications on their merits.
Legal Issues
- Whether the trial judge was required to give a direction in the terms described in Liberato v The Queen (1985) 159 CLR 507, namely that disbelieving the accused's defence does not of itself discharge the prosecution's burden of proof beyond reasonable doubt.
- Whether the trial judge erred by describing the appellant's conduct as "money laundering" during sentencing, thereby inflating the objective criminality and committing a De Simoni error by effectively sentencing the appellant for a more serious offence than the one of which he was convicted.
Decision
Conviction appeal: no Liberato direction required
The appellant argued that the trial judge should have directed the jury that even if they disbelieved his evidence, that disbelief alone was insufficient to establish guilt beyond reasonable doubt. Because no such direction had been sought at trial, the appellant required leave to appeal under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Leave is only available where the ground has merit.
The Court found the ground lacked merit. The offence under section 193C(1) turns on whether there were objectively "reasonable grounds to suspect" the property was proceeds of crime, not on the jury's assessment of the accused's state of mind or his credibility as a witness. The burden of proof question therefore arose in a materially different way than in the paradigm Liberato scenario. Importantly, the trial judge had in fact given directions that adequately conveyed the relevant burden, including a specific direction that the jury's disbelief of the accused's explanation was not a sufficient basis to convict. There was no warrant for the proposed additional direction, and leave was refused.
Sentence appeal: no De Simoni error
The sentencing judge referred to the appellant's conduct as "money laundering" in the course of remarks on sentence. The appellant contended this characterisation imported a finding that he had actual knowledge the property was proceeds of crime, which would be an element of the more serious offence under section 193B(1). Sentencing an offender by reference to conduct constituting a more serious offence of which they were not convicted is a recognised error, known as De Simoni error.
The Court of Criminal Appeal rejected this argument. The term "money laundering" is not an element of any specific offence under the Crimes Act. Its use by the sentencing judge was a descriptive reference to the general character of the conduct rather than a finding that the appellant had actual knowledge. The sentence imposed, three years on a maximum of five, was appropriate given the amount involved was five times the statutory minimum, the absence of remorse, and the overall circumstances. No error was established.
Orders Made
Conviction appeal:
- Extension of time to file granted to 7 January 2021
- Leave to appeal against conviction refused under rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW)
Sentence appeal:
- Extension of time to file granted to 7 May 2021
- Leave to appeal against sentence granted
- Sentence appeal dismissed
Key Takeaways
- A Liberato direction is not automatically required in every case where an accused gives evidence. The Court of Criminal Appeal confirmed that the need for such a direction depends on how the burden of proof question arises on the particular facts and the structure of the offence charged.
- Under section 193C(1) of the Crimes Act 1900 (NSW), the fault element is whether there were objectively reasonable grounds to suspect the property was proceeds of crime. The credibility of the accused's explanation is relevant to that objective assessment, but the Liberato scenario does not map directly onto that structure.
- Where a trial judge has already given adequate directions covering the substance of the point sought on appeal, the failure to give a further direction in specific terms will not, without more, constitute a miscarriage of justice.
- A De Simoni error requires a sentencing court to have actually punished the offender for a more serious offence. Describing conduct with a general term such as "money laundering" does not constitute such an error where the sentence remains within range for the offence charged.
- In dismissing the sentence appeal, the Court treated a sentence of 60 per cent of the maximum penalty as within a reasonable range for an offence involving an amount five times the statutory minimum threshold and an offender who expressed no remorse.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), sections 193A, 193B, 193C and Part 4AC
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rule 4.15
Cases:
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48
- LN v R [2020] NSWCCA 131