Citation: R v Nguyen [2021] NSWDC 295
Court: District Court of New South Wales
Date: 2 July 2021
Judge(s): Mahony SC DCJ
Background
Police discovered $40,000 in cash hidden in a concealed compartment behind the radio of the accused's vehicle during a roadside encounter in Newtown at approximately 1.45am in April 2020. The accused was on parole at the time, residing in Leppington, and was some distance from his home address when stopped.
The accused was charged with one count of dealing with property, namely the $40,000 in cash, having reasonable grounds to suspect it was proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900. The value of the property was under $100,000. The trial proceeded before a judge alone in the District Court.
The accused's account was that the bulk of the money, $35,000, had been given to him by his father's close friend, Ms Tran, as a loan to fund a truck delivery business. He said the remaining $5,000 came from leftover funds from earlier truck dealings and modest savings. Both his father and Ms Tran gave evidence in support of that account.
Legal Issues
- Whether the prosecution had proved beyond reasonable doubt each element of the offence under s 193C(2) of the Crimes Act 1900, including that the accused was dealing with property and had reasonable grounds to suspect it was proceeds of crime.
- Whether the accused had established the statutory defence under s 193C(4) of the Crimes Act 1900 on the balance of probabilities, namely that he had no reasonable grounds to suspect the property was substantially derived from criminal activity.
- Whether the evidence of the accused, his father, and Ms Tran was credible and reliable in light of the accused's lies to police, his anxiety disorder, and the witnesses' various vulnerabilities.
Decision
Issue 1: Elements of the offence
The parties did not contest that the accused was dealing with property, or that there were reasonable grounds to suspect it was proceeds of crime under s 193C(3)(e), being that the $40,000 was grossly out of proportion to the accused's income and expenditure from Centrelink payments over the relevant period (at [139]-[160]). The sole issue for determination was whether the statutory defence had been made out.
Issue 2: Credibility of the accused's account
The court acknowledged that the accused had lied to police on two occasions: he denied any knowledge of the hidden compartment and denied that anything was concealed in the vehicle (at [162]). His ERISP interview was inconsistent in parts. However, the court accepted that these inconsistencies were explained in large part by the accused's reluctance to name associates without their permission, his anxiety disorder diagnosed in 2020, and the genuine conflict he faced between his obligations to his cousin and his new business plan (at [164]-[165]). The court made due allowance for his panic disorder when assessing his overall credibility (at [155]).
Issue 3: Credibility of defence witnesses
The court rejected the Crown's submission that the accused's father, Thanh Nguyen, was lying to protect his son. Despite his stroke-affected presentation and voluble evidence, his credit was not successfully impugned under cross-examination (at [169]). The court similarly rejected the Crown's submission that Ms Tran's evidence was illogical and unbelievable. Viewing her evidence in light of her schizophrenia, ongoing medication, and personal history, the court was comfortably satisfied that the $35,000 originated from her 2016 property settlement, was held in safekeeping by the accused's father, and was handed to the accused on 17 April 2020 (at [170]).
Issue 4: The statutory defence
The court was satisfied on the balance of probabilities that the accused had no reasonable grounds for suspecting the $40,000 was substantially derived from any criminal offence (at [171]). The absence of written contracts or bank deposits was held to be of no great significance in the circumstances of these witnesses and their relationships (at [166]-[167]). The statutory defence under s 193C(4) was made out, and the accused was found not guilty.
Orders Made
- Verdict of Not Guilty
Key Takeaways
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Under s 193C(4) of the Crimes Act 1900, the statutory defence to a proceeds-of-crime dealing charge requires the accused to establish on the balance of probabilities only that he or she had no reasonable grounds to suspect the property was substantially derived from criminal activity. The standard is not the criminal standard of proof beyond reasonable doubt (at [149]-[150]).
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A finding that an accused lied to police about specific matters does not necessarily defeat a statutory defence where the court accepts a credible explanation for the deception and finds the accused's underlying account reliable in its material respects (at [162]-[165]).
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The District Court treated the absence of documentary formality, including written contracts, loan agreements, or bank deposits, as carrying limited weight when assessing transactions between people in close personal relationships who did not operate in a commercially sophisticated way (at [166]-[167]).
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Where witnesses present with medical conditions, cognitive difficulties, or anxiety disorders, a judge alone is required to assess credibility with appropriate allowance for those conditions rather than treating unconventional presentation as grounds to reject evidence altogether (at [155]-[157]).
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The prosecution conceding that s 193C(3)(e) applied, because the cash was grossly disproportionate to the accused's income, did not automatically defeat the statutory defence. The Crown still bore the burden of proving every element of the offence, and the statutory defence operated as a separate question assessed against the totality of the evidence (at [148]-[150], [171]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Procedure Act 1986
- Evidence Act 1995 ( Cth)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases
- Not stated