John Anile v The Queen - [2016] VSCA 226

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0091

JOHN ANILE	APPELLANT
v
THE QUEEN	RESPONDENT

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JUDGES:	REDLICH, OSBORN and FERGUSON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2016
DATE OF JUDGMENT:	19 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 226
JUDGMENT APPEALED FROM:	Director of Public Prosecutions v Anile (Unreported, County Court of Victoria, Judge Coish, 13 May 2016)

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CRIMINAL LAW – Money laundering – Interlocutory appeal – Whether s 41Q of the Crimes (Confiscation of Profits) Act 1986 requires prosecution to prove a specific predicate offence – Appellant charged with laundering $400,000 cash when purchased a property with cash he knew or believed was derived or realised, directly or indirectly, as the result of the commission of a serious offence – Trial judge determined prosecution not required to prove a specific predicate or antecedent offence – Requiring prosecution to prove specific predicate offence would be illogical and unduly onerous – Appeal dismissed – Crimes (Confiscation of Profits) Act 1986 s 41Q – HSKAR v Wong Ping Shui (2001) 4 HKCFAR 29, Director of Public Prosecutions v Marell (2005) 12 VR 581, R v Allison [2006] 1 NZLR 721, Director of Public Prosecutions v Bholah [2012] 1 WLR 1737 considered

CRIMINAL LAW – EVIDENCE – Surveillance Device – Interlocutory appeal concerning admissibility of covert recordings – Witness covertly recorded conversations with accused – Police fitted and turned device on and off – Whether police had installed, used or maintained listening device – Trial judge ruled that recordings were not improperly or illegally obtained – Word ‘install’ not concerned with fitting electronic device to person – Police did not ‘use’ device as witness had control of device at time of recording – Police did not ‘maintain’ device – Appeal dismissed – Surveillance Devices Act 1999 s 6 – WK v R (2011) 33 VR 516

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Billings with Mr G Boas	—
For the Respondent	Mr C Boyce SC with Mr M Fisher	Mr J Cain, Solicitor for Public Prosecutions

THE COURT:

The appellant has been arraigned on his trial on one charge of money laundering contrary to s 41Q of the Crimes (Confiscation of Profits) Act 1986, and one charge of obtaining a financial advantage by deception contrary to s 82 of the Crimes Act 1958. By way of interlocutory appeal the appellant seeks to challenge two rulings of the trial judge made prior to the empanelment of the jury.

The first ruling relates to one of the elements which must be established by the Crown in making out a charge under s 41Q Crimes (Confiscation of Profits) Act. The trial judge concluded that the Crown is not obliged to prove a specific offence (the predicate offence) in order to satisfy the element that the money or property has been derived or realised as a result of the commission of a serious offence.

The second ruling relates to the admissibility of…

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 John Anile v The Queen

Details

AGLC: John Anile v The Queen [2016] VSCA 226
Case: [2016] VSCA 226
Decision Date: 19 September 2016

CaseChat Overview and Summary

In the case of John Anile v The Queen, the appellant was charged with money laundering under section 41Q of the Crimes (Confiscation of Profits) Act 1986, in relation to the purchase of a property with $400,000 in cash, which he knew or believed was derived from the commission of a serious offence. The matter was heard in the High Court of Australia, which was asked to determine whether the prosecution needed to prove a specific predicate offence to secure a conviction. Additionally, the court was asked to consider the admissibility of covert recordings obtained during the investigation, where a witness recorded conversations with the accused using a device fitted by police.

The legal issues before the court included whether section 41Q of the Act required proof of a specific predicate offence, and if the covert recordings were obtained lawfully under the Surveillance Devices Act 1999. The appellant argued that the prosecution should be required to prove a specific antecedent offence, and that the covert recordings were improperly obtained as the police had installed, used, or maintained the listening device. The court was tasked with interpreting the language of the statute and determining the admissibility of the evidence.

The High Court held that the prosecution was not required to prove a specific predicate offence as it would be illogical and unduly onerous. The court found that the word "install" in the Act did not refer to fitting an electronic device to a person, and that the police did not "use" or "maintain" the device as the witness had control of it during the recording. Consequently, the appeal was dismissed, and the trial judge's determinations regarding the predicate offence and admissibility of the recordings were upheld.

No specific orders were made in this interlocutory appeal, as the case was to continue to the trial phase. However, the court's findings provided clarity on the requirements of section 41Q and the interpretation of the Surveillance Devices Act 1999.

Orders