15 September 2011


In Chen v Director of Public Prosecutions (DPP) (Cth) [2011] NSWCCA 205 telecommunications businessman You Qing Chen has successfully appealed against conviction for money laundering under s 400.5(1) of the Criminal Code (Cth).

The New South Wales Court of Criminal Appeal found that the Commonwealth Director of Public Prosecutions, partly through poor drafting of particulars, failed to make out the offfence.

Basten JA states that -
On 10 June 2010 the appellant was found guilty by a jury in the District Court of an offence under the Criminal Code Act 1995 (Cth) of dealing with money intended to become an instrument of crime, the value of the money being in excess of $50,000. On 3 November 2010 he was convicted and sentenced to a period of imprisonment for 2 years, 6 months to date from 25 October 2010. His Honour also fixed a non-parole period of 1 year, 6 months which is due to expire on 24 April 2012. In addition, the appellant was ordered to pay a fine of $25,000.

On 21 March 2011 an application for leave to appeal against conviction and sentence was filed. By that stage he had served almost 5 months of the 18 month non-parole period. The notice contained six grounds of appeal against conviction. On the same date, 21 March 2011, written submissions were filed in support of the appeal, although neither the grounds nor the submissions adequately articulated the two bases upon which senior counsel for the appellant ran the appeal against conviction. Nevertheless, and quite properly in the circumstances, the Commonwealth Director of Public Prosecutions raised no objection to the first ground as then identified.
Garling J indicated that -
In an expanded way, s 400.5 of the Criminal Code requires that the prosecution prove, on the facts of this case:
(a) the appellant dealt with money and other property; and

(b) the appellant intended that the money or other property would be used in the commission of, or to facilitate the commission of, an indictable offence; and

(c) the value of the money and other property was $50,000 or more.
But s 400.13 of the Criminal Code provides that it is not necessary for the prosecution to establish that there was an intention that a particular offence would be committed, or else that there was an intention that a particular person would commit the offence.

A distinction can be observed, which is an important one, between the phrase "an indictable offence" and "a particular offence". The usage of the different terms provides a clear path to the meaning of the latter phrase.

The prosecution must establish the evidence of a specific intention in the appellant to commit an indictable offence but not a particular offence.

It is an error to interpret the provisions of s 400.13 of the Criminal Code as a statutory form of excuse which permits the prosecution, proceeding under s 400.5 of the Criminal Code, to refrain from identifying an indictable offence in the commission of which, or the facilitation of the commission of which, the money or other property is constituted as an instrument of crime.

Unless the prosecution identifies the relevant indictable offence, then it is not open to a jury to conclude that the money or other property constituted an instrument of crime.

The effect of s 400.13 of the Criminal Code is only to excuse the prosecution from proving a particular offence, that is, an offence particularised by reference to a person, date, time, place, and any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a defence to a specific charge.

The prosecution in this case made no attempt to identify an indictable taxation offence, which could have made the appellant's conduct come within the relevant definition. On the contrary, the vague assertions of the prosecutor, together with the generality of the submissions to the jury by the prosecutor, and the consequent summing up by the trial judge of that part of the prosecution's case, were cast in such a way that it was not open to the jury to convict the appellant on that alternate basis.

Had careful attention been be paid to the terms of the more serious charge and the elements required to be proved, then either the particulars of the money laundering charge may have been different, or else only the structuring offence would have been proceeded with. It is the prosecution's failure to address these matters which means that the appeal must be upheld and the orders proposed by Basten JA made.