Isbester v The Queen - [2013] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Isbester v R [2013] NSWCCA 230
Hearing dates: Friday 27 September 2013
Decision date: 14 October 2013
Before: Hoeben CJ at CL at [1]
Latham J at [60]
Bellew J at [61]
Decision:
Leave to appeal is granted.
The appeal is dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - recklessly dealing with money which was the proceeds of crime - s400.4(2) Criminal Code Act 1995 (Cth) - grounds of appeal that verdict unreasonable and incorrect directions as to elements of offence - offender delivering large amounts of cash to participants in a fraudulent tax avoidance scheme - whether cash delivered could ever be "proceeds of crime" as defined in the Act - what was the correct legal characterisation of the cash delivered by the offender - elements of offence made out and directions adequate - appeal dismissed.
Legislation Cited: Criminal Code Act 1995 (Cth) - s400.4(2)\ Income Tax Assessment Act 1936
Taxation Administration Act 1953
Cases Cited: DPP v Jeffery [1992] 58 A Crim R 310
Saffron v DPP [1989] 96 FLR 196
Category: Principal judgment
Parties: Arthur James Isbester - Appellant
Cth Regina - Respondent Crown
Representation: Counsel:
Mr P Neil SC/Mr S Flood - Appellant
Mr S Odgers SC/Mr M Leighton-Daly - Respondent Crown
Solicitors:
Blair Criminal Lawyers - Appellant
Commonwealth DPP - Respondent Crown

File Number(s): 2010/66002
Decision under appeal

Date of Decision:

2013-07-24 00:00:00

Before:

Tupman DCJ

File Number(s):

2010/66002

Judgment

HOEBEN CJ at CL:

Offence

The appellant was charged with the following offence:

Between about 19 February 2006 and about 10 April 2010 at Sydney did deal with money or other property, the proceeds of crime, and was reckless as to the fact that the money or property was proceeds of crime, and at the time of the dealing the value of the money or property was $100,000 or more, contrary to s400.4(2) of the Criminal Code Act 1995 (Cth).

The trial proceeded before Tupman DCJ and a jury for 21 days between 16 June and 24 July 2012. On 24 July 2012 the jury returned a verdict of guilty.

The appellant relies upon two grounds of appeal:

Ground of Appeal 1: The verdict of the jury was unreasonable or cannot be supported.

Ground of Appeal 2: The jury were not properly directed regarding the elements of the offence charged.

Factual Background

The prosecution case was as follows. Eva and Phillip Southcombe were directors and shareholders in the company, Gladesville Bridge Marina Pty Limited (GBM). In 1998 they arranged for the company to send funds overseas in a tax evasion scheme set up by Robert Agius, an accountant based in Vanuatu. The funds were disguised as payment for services and interest on non-existent loans, and were intended to be returned to the Southcombes (thereby evading the payment of tax on dividends paid by the company to them as shareholders).

The scheme continued for some years. Between 25 May 2005 and 9 April 2008…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Isbester v The Queen

Details

AGLC: Isbester v The Queen [2013] NSWCCA 230
Case: [2013] NSWCCA 230
Decision Date: 14 October 2013

CaseChat Overview and Summary

The case of Isbester v The Queen involves an appeal against a conviction for recklessly dealing with money that was the proceeds of a crime, pursuant to s400.4(2) of the Criminal Code Act 1995 (Cth). The appellant, Isbester, was convicted of delivering large sums of cash to participants in a fraudulent tax avoidance scheme. The appeal grounds centred on the contention that the verdict was unreasonable and that the trial judge provided incorrect directions regarding the elements of the offence. The core issue was whether the money delivered by Isbester could be classified as "proceeds of crime" under the Act, and if so, what the correct legal characterisation of the delivered cash should be.

The court examined the elements of the offence under s400.4(2) and considered whether they were correctly applied by the trial judge. The appellant argued that the money was not proceeds of a crime as it did not derive from any illegal activity but rather from legitimate income that was subsequently used in a fraudulent scheme. The court had to determine the legal characterisation of the cash in the context of the offence and assess whether the trial judge's directions to the jury were sufficient and accurate. After careful consideration, the court found that the trial judge had correctly explained the elements of the offence and that the jury's verdict was not unreasonable.

The appeal was dismissed by the court, which held that the elements of the offence were correctly applied and the directions to the jury were adequate. The court determined that the money delivered by Isbester could indeed be considered "proceeds of crime" as it was the proceeds of a fraudulent scheme, and the offender's actions constituted reckless dealing with those proceeds. The court concluded that the trial judge's handling of the case was appropriate and that the jury's verdict was supported by the evidence presented. As a result, the conviction was upheld, and the appeal was unsuccessful.

Orders