Long v DPP

[2008] NSWDC 194

CITATION:	Long v DPP [2008] NSWDC 194
HEARING DATE(S):	01/09/2008
JUDGMENT DATE:	9 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Williams DCJ at 1
DECISION:	The appeal is dismissed. The orders of the Local Court are confirmed.
CATCHWORDS:	"anything" constituted by $51,000 cash - reasonable suspicion - continuance of - conclusion as to at end of trial - defendant does not give evidence - evidence by third party as to ownership - defence in sub-section 2 - requires evidence personally from the defendant - can't be proved by hearsay or from a third party
LEGISLATION CITED:	Crimes Act s527C(1)(c) & (2)
CASES CITED:	Anderson v District Court of NSW (1992) 27 NSWLR 701 Buckett (1995) 79 A Crim R 302
PARTIES:	Ronnie Long Director of Public Prosecutions
FILE NUMBER(S):	08/12/0599
COUNSEL:	Mr MJ Blair Ms E Curran
SOLICITORS:	The Law Practice Solicitor for DPP

1. This is a conviction appeal in related to an offence contrary to s. 527C(1)(c) which provides that a person who has anything in or on premises, whether belonging to or occupied by herself or not or whether that thing is there for her own use or the use of another which thing may reasonable be suspected of being stolen or otherwise unlawfully obtained is liable, on conviction before a Local Court, to imprisonment for 6 months or a fine of 5 penalty units or both. The section also provides for a statutory defence in sub section 2 which says that,

“It is a sufficient defence to a prosecution for an offence under the section if the defendant satisfies the Court that she had no reasonable grounds for suspecting that the thing referred to in the charge was taken or otherwise unlawfully obtained’.

2. The thing in the present case is some $51,000 cash, $21,000 being found in a pocket of each of two woman’s coats in Ms Long’s bedroom at her house and $11,000 being found in a bed head compartment.
3. If at trial, the Crown is able to establish beyond reasonable doubt that a suspicion attaches to this money, then the offence, from the Crown’s points of view is complete. The onus then shifts to the defendant to establish, on the balance of probabilities, the defence as to her having no reasonable grounds for suspecting that the money was stolen or unlawfully obtained. This and similar other offences in money laundering legislation have at their heart proof of a suspicion as distinct from an overt act or event.
4. As Kirby J said in Anderson v District Court of NSW (1992) 27 NSWLR 701 at 716,
“the section is concerned with whether the person (ie. Ms Long) had reasonable grounds for suspicion that it was (not) stolen or otherwise unlawfully obtained. It is concerned with what the accused’s belief was”.
5. Hunt CJ at CL in Buckett (1995) 79 A Crim R 302 at 307, said,
“The effect of this statutory framework is thus that the state of knowledge of the person charged as to the provenance of the things in his custody is irrelevant to the prosecution case; but if the Court is satisfied beyond reasonable doubt upon the state of the evidence before it that those things may reasonably be suspected of being stolen or otherwise unlawfully obtained, the person charged must, in order to escape conviction, discharge the lesser civil onus upon him satisfying the Court that he had no reasonable grounds for suspecting that they were stolen or unlawfully obtained…the accused must satisfy the jury that more probably than not he had no reasonable grounds for suspecting that the money or other property was derived or realised, directly or indirectly, from some form of unlawful activity”.

6. The brief facts are that a search warrant was being executed on Ms Long’s house. At the beginning of the search, she was asked if there was any money in the house and she said no. She was then asked if there was any cash or currency and again she said no. She was asked this to obviate any allegation that might be made that searching police had taken money during the search. After the search commenced, police found $21,000, bundled into neat fifty dollar bundles with elastic bands, in the pocket of a female's coat in a wardrobe in Ms Long’s bedroom. She was then asked how much money was there to which she said she did not know. She was then asked if it was her money to which she replied that she did not want to answer that question. At that point of time, having regard to her responses to the earlier questions, as well as these questions, a legitimate suspicion immediately attached to the money. Ms Long was arrested, but did not participate in a record of interview.

7. These events took place on 11/5/2006. The matter went to hearing on 21/2/2007, at which time Ms Long’s brother, Wei Long, gave evidence in chief for the defence. The matter was adjourned to 1/6/2007 when further examination in chief and cross examination occurred. Additional cross examination and re-examination of Wei Long was concluded on 5/10/2007and closing submissions made. Her Honours decision was given on 9/11/2007. No evidence was given by Ms Long then or on appeal.

8. The substantive effect of Wei Long’s evidence, if accepted, was that the money was his, that it wasn’t left in a bank, although he had bank accounts, because that was a common Chinese custom and that the money was hidden in Ms Long's wardrobe because Wie Long didn’t want to leave it in the bedroom which he shared with Ms Long’s 5 year old son because he might take it. Wei Long also produced a variety of documentary evidence in support of the various monetary transactions of which he had given evidence.

9. Her Honour reviewed the evidence at pages, 2, 3, 4, 5 and 6 of the transcript without, as far as I can see, nor has it been suggested, any factual errors. Her Honour correctly referred to and stated the applicable law. What it comes down to is that Her Honour was satisfied that a suspicion still attached to the money. There was no evidence from Ms Long and her Honour found Wei Long's evidence not particularly plausible or credible. She discussed why at pages 12 and 13 of the transcript of 9/11/2007.

10. Mr Blair for Ms Long has produced a number of helpful tables tracking money and events by reference to the transcript and evidence. He argues firstly that, having regard to Wei Long’s evidence, the Court should not have been satisfied beyond reasonable doubt that a reasonable suspicion still attached to the money.

11. Secondly, even if a reasonable suspicion attaches to the money, then Wei Long’s evidence satisfies, on the balance of probabilities, the requirements of the defence under sub section 2.

12. It is certainly true, as was argued, that Ms Long’s state of mind is not relevant to the prosecution’s establishment of the offence, but only in regards to the defence raised. In that regard, it is my view that for a defendant to seek to rely on the defence requires that the defendant personally give evidence as to his/her state of mind and that the defendant’s state of mind cannot be established, even on the balance of probabilities, by hearsay or through another person. In other words, to be able to rely on the defence, Ms Long had to give evidence as to what her state of mind was in regard to the money, because it was established by Wei Long, that she was aware that the money was where it was. The words of the section refer to the “defendant” (not the defence) “satisfying the court” that “she had no reasonable grounds”. In other words the defence is a personal one and in my view, the defence has not been made out to the requisite standard in the absence of evidence from Ms Long.

13. However, that does not dispose of the matter because I have to be satisfied beyond reasonable doubt that, having read the evidence, a reasonable suspicion still attaches to the money. An immediate difficulty is that I have not had the opportunity of seeing Wei Long give evidence, whereas Her Honour did over a period of 3 days.

14. One needs to be careful in a matter such as this to recognise legitimate cultural differences such as Wei Long’s evidence as to some aspects of banking. It was also argued that Ms Long’s initial untruths to the police had to be looked at in the context that it was late at night, she was a woman and she may have had concerns about immigration issues or dealing with authorities. The difficulty, however, with that submission is that, in the absence of evidence from her, it amounts to impermissible speculation.

15. Whilst it may be the case that Chinese people and, no doubt, others prefer to have money in cash rather than in a bank, Wei Long did have bank accounts and had held money for long periods in bank accounts in China, so that the suggestion that Australian bank accounts were just for specific purpose payments does not raise or explain some sort of cultural difference.

16. I agree with Her Honour that his explanations as to why the money was kept in Ms Long’s room because of concerns as to a 5 year old boy lacked conviction. Indeed, as far as can be seen from the video, the cash was just as accessible once found in Ms Long’s room as it might have been if found in the shared bedroom.

17. I also agree with the Crown’s submission that if this $51,000 was legitimately the property of Wei Long, his explanation, at p. 31 of the transcript dated 5/10/2007, as to why he didn’t immediately go to the police, when he found out what had happened, lacks conviction. Whilst it may be that the various documents tendered in the Local Court to substantiate Wei Long’s evidence help explain the sum total of the money found, it hasn’t to my mind, removed the suspicion created by Ms Long’s initial untruths about the money, her responses to the finding of the money and the fact that she did not, as was of course her right, give evidence herself, but relied on her brother in circumstances where, if the money was innocently obtained, given the amount involved, it would be expected that he would have gone immediately to the police to make his claim to have the money returned.

18. That is not to say that a defendant has any obligation to disprove the Crown case for this offence or similar offences. However the offence is made out if a reasonable suspicion attaches to the money after the evidence is completed. That suspicion may attach to the money, even if the accused is able to satisfy the Court of the defence. In such a case the accused avoids conviction but the status of the thing remains under suspicion. Usually in those circumstances an order is made that the property is to be returned to the owner if locatable. Of course, a situation may also arise where, at the end of the evidence, a court can no longer be satisfied beyond reasonable doubt that a reasonable suspicion still attaches to the thing in question but that is not the case here.

19. The appeal is dismissed. The orders of the Local Court are confirmed.