Police v Smith

[2025] SASCA 37

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

POLICE v SMITH

[2025] SASCA 37

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice David and the Honourable Justice Stein)

10 April 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - REFERENCE TO CONTEXT

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS - COMMISSION REPORTS

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - GENERALLY

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DOUBLE JEOPARDY - GENERALLY

Appeal against acquittal entered by a Magistrate.

The respondent was charged with 84 counts of money laundering contrary to s 138(2) of the Criminal Law Consolidation Act 1936 (SA) (the CLCA) in relation to various transactions made by the respondent from bank accounts belonging to the complainant. The charges were identically particularised as dealing with “property, namely, money”.

Following a trial, the Magistrate found that the majority of the charges could not be made out in circumstances where the charges were particularised by reference to “money”, the prosecution did not resile from that particularisation or seek an amendment of the information, s 130 of the CLCA expressly distinguished “money” from intangible property, and the property said to be dealt with was intangible property, namely a chose in action. The Magistrate accordingly acquitted the respondent of 81 counts relating to the electronic transfer of tainted funds and electronic purchases made with tainted funds.

The Crown appealed principally on the ground the learned Magistrate erred in finding that funds deposited into a bank account were not "money" within the meaning of the CLCA. The Crown further contended that the learned Magistrate first, erred in finding that the description of the property as “money” was a particular which was an essential part of the offence and secondly, in failing to amend the Information.

The Crown conceded that issues of double jeopardy apply to the disposition of a prosecution appeal against an acquittal under s 42 of the Magistrates Court Act 1991 (SA).

Held (dismissing the appeal; by majority)

1.(per S Doyle JA and Stein AJA, David JA agreeing): Considering the relevant text, context, and purpose of the CLCA, the reference to “money” in s 130 is a reference to a species of tangible property, being physical currency in the form of notes and coins. This reflects the legal meaning of “money”. There is nothing in the text, context or purpose of the provisions of Part 5 of the CLCA which points toward a broader meaning of “money” which might accord more with the popular and modern use of that word. Adopting a narrower meaning of money will not confine the scope of the offence provisions in such a way as to make their scope dependent upon technical distinctions.

2.(per S Doyle JA and Stein AJA): The reference to “namely, money” in the particulars of the charge was superfluous and neither inherently material as an element of the offence, nor rendered material by the way in which the case was conducted. The application of an inapt label to the property did not result in the consequence that the property was not “property” within the meaning of part 5 of the CLCA.

(per David JA agreeing): The fact that the respondent challenged the particularisation of tainted property as “money” did not itself render it a particular material in circumstances where the respondent was provided with sufficient information to identify the property the subject of each charge and the case they were required to meet.  There would have been no change to the prosecution case had the property been described as a “chose in action” and accordingly, there was no resulting procedural unfairness.

3.(per S Doyle JA and Stein AJA): The prosecution did not apply to amend the information despite being on notice in advance of trial of the attitude to the way the charges were particularised.  Nor did the prosecution invite the Magistrate to treat the particulars as immaterial.  Accordingly, the Magistrate did not err in failing to amend the information of her Honour’s own volition in the face of the prosecution’s forensic choice to proceed in that way. 

(per David JA) As the particulars were not material, and the respondent was aware of the case he had to meet, there was no obligation on the Magistrate to amend the Information.  It was unnecessary to do so.  Nor is there any obligation on this Court to make the amendments sought by the Director on appeal.

4.(per S Doyle JA and Stein AJA): The prosecution made, and persisted in, a deliberate forensic choice which was inherently relevant to the respondent’s decision whether to plead guilty prior to trial.  Given the law's concern to avoid double jeopardy, the appeal should be dismissed.

(per David JA dissenting) The Magistrate erred in law by finding that the particulars were material and by proceeding to acquit the respondent of the relevant counts solely on that basis.  Acquittals were not otherwise inevitable.  The only element in dispute was whether the respondent ought to have known the property was tainted.  The Magistrate’s conclusions as to the elements of the offences did not depend upon an assessment of the credibility or reliability of any witness.  Most of the evidence adduced by the prosecution was uncontested, and the respondent did not give evidence at trial.  Accordingly, this Court is in as good a position as the Magistrate to determine whether the prosecution had proved its case on each count. Upon an independent review of the evidence of the record, the prosecution has established guilt on all counts.

Notwithstanding the principles of double jeopardy, and the position taken by the prosecution at trial, it is appropriate to allow the appeal, substitute guilty verdicts and remit the matter to the Magistrates Court for sentence.

Words and Phrases:

1.      “Money” (Criminal Law Consolidation Act 1936 (SA), s 130).

Criminal Law Consolidation Act 1935 (SA) ss 130, 131, 133, 134, 138(2); Legislation Interpretation Act 2021 (SA) s 14; Criminal Procedure Act 1921 (SA) s 22A(1), s 22A(2), 101(1); Joint Criminal Rules 2022 (SA) rr 62.1(7)(b), 62.2(5); Magistrates Court Act 1991 (SA) s 42, referred to.

Alexander v Bakes (2023) 21 ACTLR 27; Everett v The Queen (1994) 181 CLR 295, applied.
R v Hunt (1996) 88 A Crim R 307; Kingdon v Western Australia (2012) 223 A Crim R 449; Alexander v Bakes (2023) 21 ACTLR 27, distinguished.

Conant v The Queen (2021) 138 SASR 239; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40; Thiess v Collector of Customs (2014) 250 CLR 664; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; White v Director of Public Prosecutions (WA) (2011) 243 CLR 478; Kelly v The Queen (2004) 218 CLR 216; Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; Lordianto v Commissioner of the Australian Federal Police (2019) 226 CLR 273; Croton v The Queen (1967) 117 CLR 326; Parsons v The Queen (1999) 195 CLR 619; Parker v The Queen (1997) 186 CLR 494; R v Hawcroft [2009] ACTSC 145; Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475; WGC v The Queen (2007) 233 CLR 66; R v Pfitzner (1976) 15 SASR 171; EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481; Helps v The Queen (No 3) [2021] SASCFC 10; Police v Cadd (1997) 69 SASR 150; R v Brougham (2015) 122 SASR 546; Thoroughgood v Warren (1979) 20 SASR 156; R v Fitzgerald [2023] SASCA 34; R v Yaroslavceff [2022] SASCA 123; R v Ametovic [2024] SASCA 153; R v Brougham (2015) 122 SASR 546, considered.

POLICE v SMITH
[2025] SASCA 37

Court of Appeal – Criminal:    S Doyle and David JJA, Stein AJA

1. S DOYLE JA & STEIN AJA:  The respondent, Mr Smith, was charged with 84 counts of money laundering pursuant to s 138(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Mr Smith was convicted of a small number of counts involving cash withdrawals from a bank account. He was acquitted of the vast majority of the counts involving electronic transfers between bank accounts in the name of Mr Smith and other individuals, VISA purchases, and other electronic purchases.

2. While finding beyond reasonable doubt that Mr Smith engaged directly or indirectly in each charged transaction involving tainted property in circumstances such that Mr Smith ought reasonably to have known the property was tainted, the Magistrate concluded that the charges as pleaded, other than those relating to cash withdrawals, could not be made out. This was because the information particularised the property in each transaction as “tainted property namely, money”, whereas Mr Smith dealt with property which, although tainted, was not money within the meaning of s 130 of the CLCA. In so holding, her Honour took a narrow view of the concept of money, essentially confining it to a species of tangible property, comprising coins, bank notes or other physical forms of currency.

3. The Crown appeals the acquittals of Mr Smith, on grounds which challenge both the Magistrate’s narrow view of the concept of “money”, and the Magistrate’s decision to hold the prosecution to its particularised case. 

4. The appeal should be dismissed. For the reasons which follow, whilst ‘property’ for the purposes of s 130 of the CLCA encompasses intangible forms of currency, the reference to ‘money’ within that definition does not. Money is confined to coins, bank notes and other physical forms of currency. The particulars which described the property in the present case as ‘money’ were not material, and the respondent could have been convicted, without amendment, of the offences charged. However, given the prosecution’s persistent reliance at trial upon a case based upon ‘money’, it should not be permitted at this late stage to change its case. This Court should exercise its discretion to dismiss the appeal so as not to twice vex the respondent.

   Background

5. In March 2020, various items were stolen from the home of Ms Johnson, including a notebook in which she had recorded account numbers and passwords for three bank accounts.  Shortly thereafter, in March 2020, $80,000 was transferred from those bank accounts in $10,000 amounts and deposited into bank accounts in Mr Smith’s name.  Mr Smith then transferred funds from his account into other accounts belonging to him or a third party, withdrew funds from his account in cash and used some funds in his account to purchase goods and services.

6. On 23 March 2020, Mr Smith was charged with money laundering. After various amendments to the charges, the trial proceeded in February 2024 on 84 counts of money laundering contrary to s 138(2) of the CLCA. All 84 counts of money laundering were particularised in the same way, that is, that Mr Smith had:

   Between the 14th day of March 2020 and the 19th day of March 2020 at GLENELG and other places in the said State, engaged, directly or indirectly, in a transaction involving property, namely, money, of the value of more than $2,500 but no greater than $30,000, that he ought reasonably to have known to be tainted property.

7. Prior to trial, Mr Smith put the prosecution on notice that it had wrongly particularised the charges as dealing with “money”. 

8. At trial, the prosecution tendered exhibit P2 entitled “Particularisation of charges”.  Exhibit P2 specified in respect of each separate account number a series of transactions by date and description, including the nature of the transaction and the amount.  Where relevant, P2 specified the person to whom a transfer was made or the entity from which goods and services were purchased.

9. In closing submissions, defence conceded the property was tainted.  The primary contest was whether the circumstances were such that Mr Smith ought reasonably to have known the property was tainted.  Counsel for the defence also relied on the particularisation of the charge by reference to “money” as fundamentally wrong at law.[1]  Counsel contended that each time Mr Smith received a transfer or transferred funds out of his account, he dealt with an intangible legal right against the bank, not money; that Mr Smith never dealt with money; and the prosecution charge was not capable of proof beyond reasonable doubt.[2]  The prosecutor’s position was that money was not limited to cash and included funds in the bank account.[3] 

   [1]     Transcript of closing submissions (“CT”) 26.1-6.

   [2]     CT 27.32-28.6.

   [3]     CT 10.9-21.

10. The prosecutor did not apply to amend the information to change each relevant reference to “money” to a “chose in action” either before or during the trial despite being on notice of Mr Smith’s position.

    The Magistrate’s decision

11. The Magistrate identified the key issues for determination as:

    1.whether Mr Smith ought reasonably to have known the moneys he was dealing with were tainted;

    2.whether in respect of the counts dealing with bank transfers or purchases, the transactions involved a different species of property to that alleged in the information, namely money; and

    3.whether in respect of counts involving use of the tainted property to purchase goods and services, Mr Smith’s use was money laundering.

12. In addressing whether Mr Smith dealt with money, the Magistrate observed it was not necessary for prosecution to particularise the information in that way.  However, the prosecution had not resiled from that wording and ran its case on the basis that each of the alleged transactions involved money, not some other form of property.[4]  The Magistrate  considered a narrow definition of “money” to be out of step with everyday use of the word, but observed the legal reality that funds in a bank account constitute a right to recover the amount deposited.[5] After addressing the definition in s 130 of the CLCA and concluding that “money’ is expressly distinguished from intangible property such as things in action, the Magistrate continued as follows:[6]

    For completeness, I have considered whether it is appropriate to take a pragmatic approach to the wording of the Information. The inclusion of examples of ‘property’ at (a) to (d) within the s. 130 definition is consistent with a deliberate legislative response to a suggestion that the meaning of ‘property’ should be narrowly construed for the purpose of dishonesty offences. It is clear that the provision was drafted to capture the type of mischief exemplified by Mr Smith’s dealings with the tainted property, regardless of whether those dealings involved physical money. However, prosecution was on notice that Mr Smith intended to challenge the wording of the Information. No amendment was sought, nor was the Court invited to consider the words, “namely money”, to be immaterial to the pith and substance of the charge.

    Acquitting Mr Smith on these charges might subvert the broad legislative purpose of ss. 130 and 138, but it is not for this Court to intervene in the forensic choices of either prosecution or defence. Prosecution is bound by its pleading. Mr Smith did not transact with ‘money’ (within the meaning of s. 130) when he undertook the transfers that form the basis of counts 46-72, 76-80, 83-86, 88, 89 and 116-119.

    [4]     Police v Ricky Lee Smith [2024] SAMC 29 at [12].

    [5]     Police v Ricky Lee Smith [2024] SAMC 29 at [16]-[17].

    [6]     Police v Ricky Lee Smith [2024] SAMC 29 at [19]-[20].

13. The Magistrate concluded that most of the charges as pleaded could not be made out because, although tainted property was dealt with, it was not money as particularised and run at trial by the Crown.[7]  However, in the case of the counts involving the withdrawal of cash, Mr Smith engaged in transactions involving tainted property which was money in circumstances in which he ought reasonably to have known that the money was tainted. 

    [7]     Police v Ricky Lee Smith [2024] SAMC 29 at [24]-[25].

14. Accordingly, Mr Smith was found guilty of only those counts which related to cash withdrawals and acquitted on all other counts. 

    Grounds of appeal

15. The grounds of appeal are as follows.

    1.The learned Magistrate erred in finding that the description of the property was a particular which was an essential part of the offence.

    2.The learned Magistrate erred in finding that funds deposited into a bank account is not “money”.

    3.The learned Magistrate erred by failing to amend the Information.

16. Given the interrelationship between the issues, we will address the second ground first.

    What is the meaning of “money” in s 130 of the CLCA?

    Submissions

17. The appellant submitted the Magistrate erred in giving the term “money” a narrow common law meaning that subverted the legislative scheme and gave effect to a prior construction of the term that was not sanctioned in the enactment of Part 5 of the CLCA.

18. The appellant drew on the context of the enactment of Part 5 of the CLCA, described as representing wholesale reform, which was derived from chapter 3 of the Model Criminal Code prepared by the Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General (“MCCOC”).[8] The appellant’s position was that a narrow construction of the definitional provision in s 130 of the CLCA would undermine the purpose of Part 5, the mischief of which was to remove technicality and address inflexible provisions and replace them with a flexible set of offences that can apply to all varieties of dishonest conduct. Accordingly, the appellant submitted Parliament’s intention was that “money” include not only physical cash but also electronic forms of property such as those held in financial institutions on behalf of a customer.

    [8]     Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General, Parliament of Australia, Model Criminal Code – Chapter 3: Theft, Fraud, Bribery and Related Offences (Report, December 1995).

19. Mr Smith contended that the meaning of “money” is clear on its face and applies only to bank notes and coins.  Parliament separated “money” from intangible property in the definition of “property” and that separation provided significant context to the proper interpretation of “money”, which was intended to mean physical forms of currency, not intangible rights acquired by the holder of a bank account. 

    Principles of statutory interpretation

20. The principles of statutory interpretation relevant to the appeal are not in issue. 

21. The proper interpretation of statutory provisions commences with consideration of text, context, and the purpose of the relevant provision.[9]  Legislation is to be construed on the basis its provisions are intended to give effect to harmonious goals.[10]  Where a legislative provision is reasonably open to more than one construction, the construction promoting the purpose or object of the Act must be preferred.[11]  While the statutory interpretation task begins and ends with the language, context is indispensable and may assist in determining the meaning of the statutory language.[12]  Context includes legislative history and extrinsic material.[13]  A term in legislation may take its ordinary meaning, a legal meaning, or both meanings.  The interpretation of the term will depend upon the context and purpose of the provision in which it is found.[14]

    [9]     Conant v The Queen [2021] SASCA 56; (2021) 138 SASR 239 at [30] (Lovell, Doyle and Livesey JJA); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.

    [10]   Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70] (McHugh, Gummow, Kirby and Hayne JJ).

    [11]   Legislation Interpretation Act 2021 (SA), s 14.

    [12]   Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation [2017] FCAFC 62; (2017) 251 FCR 40 at [3] (Allsop CJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

    [13]   Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

    [14]   White v Director of Public Prosecutions (WA) [2011] HCA 20; (2011) 243 CLR 478 at [12] (French CJ, Crennan and Bell JJ).

1. Definitions provide an aide in construction of the legislation rather than enacting substantive law.[15]  Where a definition applies, the words of the definition are read into the substantive enactment which is then construed in its context, bearing in mind its purpose and the mischief it was designed to overcome.[16]  To construe a definition before its text has been inserted into the fabric of the substantive provision invites error in relation to the meaning of the substantive enactment.[17] 

   [15]   Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J); Moreton Bay Regional Council v Mekpine Pty Ltd [2016] HCA 7; (2016) 256 CLR 437 at [61] (French CJ, Kiefel, Bell and Nettle JJ), quoting Gibb v Federal Commissioner of Taxation [1966] HCA 74; (1966) 118 CLR 628 at 635 (Barwick CJ, McTiernan and Taylor JJ).

   [16]   Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J), referenced in SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 419 ALR 361 at [32] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

   [17]   Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] (McHugh J), referenced in SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 419 ALR 361 at [32] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

2. In SkyCity Adelaide Pty Ltd v Treasurer of South Australia[18] the High Court affirmed the principles relating to the interpretation of definitional provisions saying:[19]

   The point of the orthodox interpretative principle is not to deny that the defined term itself forms part of the context but to emphasise that the purpose of a definition is to fix or to clarify the meaning of the defined term.  Fidelity to that purpose makes it of "fundamental importance" that a definition is construed in the context of the substantive provision to which it applies according to its "natural and ordinary meaning unless some other course is clearly required" and that "limitations and qualifications are not read into a statutory definition unless clearly required by its terms or its context".

   (citations omitted)

   [18]   SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 419 ALR 361.

   [19]   SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 419 ALR 361 at [32] (Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ).

   Nature of bank accounts

3. The balance of an account held with a financial institution constitutes a chose in action representing a right entitling the owner to require the financial institution to pay any part of, or all of, the balance credited to the account.[20]  An instruction to transfer amounts from a first bank account to another bank account results in the extinguishment or reduction of the chose in action representing the credit in the first bank account and the creation of a fresh chose in action or an increase in the value of an existing chose in action in relation to the second bank account.[21]  Such chose in action entitles the holder of the account to withdraw an equivalent amount from the account.[22] Theft provisions prior to amendment of Part 5 of the CLCA.

   [20]   Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39; (2019) 226 CLR 273 at [5], [66] (Kiefel CJ, Bell, Keane and Gordon JJ).

   [21]   Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39; (2019) 226 CLR 273 at [74]-[76] (Kiefel CJ, Bell, Keane and Gordon JJ).

   [22]   Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39; (2019) 226 CLR 273 at [74]-[76] (Kiefel CJ, Bell, Keane and Gordon JJ).

4. Historically, larceny did not apply to goods already in the possession of the thief.  Specific objects such as cattle, dogs, documents and fixtures and intangibles, such as electricity, could not be the subject of larceny. 

5. At common law, the balance of an account could not be the subject of larceny.  In Croton v The Queen Barwick CJ said:[23]

   As I have indicated, larceny consists in the taking and carrying away of the property of another without his consent, and without colour of right, intending at the time of the taking permanently to deprive the owner of that property.  It follows that there must be what is called an asportation.  Therefore, apart from any special statutory provision, larceny could only be committed of property which is capable of physical possession and removal.  It also follows that to constitute larceny, the property must be removed … from the possession of some other person against the will of that person…

   The subject matter of the instant charges was money, in each case expressed as a number of dollars, that is, paper money, or coin to the stated face value. That can be asported and be the subject of larceny.  But, though in a popular sense it may be said that a depositor with a bank has “money in the bank”, in law he has but a chose in action, a right to recover from the bank the balance standing to his credit in account with the bank at the date of his demand or the commencement of action.  That recovery will be effected by an action for debt. But the money deposited becomes an asset of the bank which may use it as it pleases : see generally Nussbaum, Money in the Law : s. 8, p. 103. Neither the balance standing to the credit of the joint account in this case, nor any part of it, as it constituted no more than a chose in action in contradistinction to a chose in possession, was susceptible of larceny, though it might be the subject of misappropriation : see also on this point the judgment of Lord Goddard in Reg. v. Davenport (supra) with which I respectfully agree.

   [23]  Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326 at 330 (Barwick CJ, McTiernan J agreeing), applied in Parsons v The Queen [1999] HCA 1; (1999) 195 CLR 619 at [17]-[22] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

6. The approach in South Australia relied on the basic offence of larceny, supplemented and modified by a large number of statutory offences mostly depending on the nature of the object or intangible item taken.[24] 

   [24]   Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General, Parliament of Australia, Model Criminal Code – Chapter 3: Theft, Fraud, Bribery and Related Offences (Report, December 1995) at 1.

7. Part 5 of the CLCA, prior to amendment, addressed larceny and similar offences. Without being exhaustive, Part 5 contained separate offences for specified tangible or intangible property such as cattle, deer, dogs, oysters, birds and animals not the subject of larceny at common law; bonds, bills, and notes; deeds and wills; items fixed to land or houses such as glass, wood, and metal; trees; fences, gates, and plants; ore, metal, and precious stones; electricity and goods in the process of manufacture.

8. Section 130 contained a number of definitions including of “property” and “valuable security”. “Property” was defined broadly by reference to a number of descriptors including “money”. “Valuable security” was defined broadly including any deposit in an authorised deposit-taking institution and other security for money or for payment of money.

9. Section 280 provided that in any information in which it was necessary to make any allegation as to money or any note of any bank, it would be sufficient to describe the money or bank note simply as “money” without specifying any particular coin or bank note. 

10. Part 5 previously contained separate references to “money” and “valuable securities”. For example, s 132 provided for larceny by a bailee of “any chattel, money, or valuable security”. Similarly, s 155 provided for robbery of any “chattel, money, or valuable security”.[25]  Offences referrable to “any property, chattel, money, valuable security, or other valuable thing” were included within s 159 and s 162.  

    [25]   See, eg, ss 164 and 176-177.

    MCCOC report

11. The substantive laws of theft were considered fragmented and complex and the myriad of specific theft or fraud offences were “cobbled together over the years to plug gaps in the pre-existing law”.[26]  As a consequence, choosing the correct offence to charge could involve excessively technical distinctions with potential impact on the criminal process. 

    [26]   Model Criminal Code Officers Committee of the Standing Committee of the Attorneys-General, Parliament of Australia, Model Criminal Code – Chapter 3: Theft, Fraud, Bribery and Related Offences (Report, December 1995) at 2.

12. The MCCOC report recommended making criminal responsibility provisions comprehensive but concise and capable of being understood by the general public.  It recommended a model incorporating a concept of dishonest appropriation and employing abstract concepts to mostly avoid the need for a multiplicity of offences, depending on the kind of object taken, in order to reduce complexity and unnecessary technical distinctions.  The MCCOC report contained a proposed code which included a definition of “property” without any accompanying explanation. 

13. That definition was adopted in identical terms in s 130 of the CLCA.

    Second reading speech for the Bill introducing Part 5

14. The second reading speech for the Bill which introduced the amendments to Part 5 referred to the Bill being a consequence of the MCCOC review of the criminal law relating to dishonesty.[27]  The second reading speech described South Australia’s laws as the most antiquated in Australia, unnecessarily complex, inadequate for modern conditions, difficult to understand, full of anomalies, and a barrier to the effective enforcement of the law against dishonesty.  The general offence of larceny and the large number of specific offences were to be replaced with a general offence of theft which was intended to subsume specific offences.  The Bill was described as a major reform effort in a technical and complex area of the criminal law in an attempt to reform and codify the law, bring it up to date, sweep away anachronisms and provide a reasonable and fair offence structure.

    [27]   South Australia, Parliamentary Debates, House of Assembly, 29 May 2002, 361 (Michael Atkinson, Attorney-General).

15. There was no explanation of the definition of property in the second reading speech.

    Part 5 of the CLCA in its current form

16. Part 5 creates an overarching concept of dishonesty and general dishonesty offences, thereby removing the requirement for a lengthy set of specific offences concerning specified property.

17. Section 130 of the CLCA contains definitions for the purposes of Part 5.

18. “Property” is defined as real or personal property including:

    (a)money;

    (b)intangible property (including things in action);

    (c)electricity;

    (d)a wild creature that is tamed or ordinarily kept in captivity or is reduced (or in the course of being reduced) into someone’s possession;

19. “Tainted Property” is defined as:

    stolen property or property obtained from any other unlawful act or activity (within or outside the State), or the proceeds of such property….

20. “Proceeds” of property are defined as:

    money or property into which property has been converted by a transaction or series of transactions (involving sale, exchange, or any other form of dealing).

21. Section 131 of the CLCA sets out a concept of dishonest conduct by reference to the standards of ordinary people.

22. Section 133 of the CLCA provides that Part 5 operates to the exclusion of offences of dishonesty existing at common law or under laws of the Imperial Parliament.

23. Section 134 sets out the basis for finding a person guilty of theft, which is articulated by reference to, among other matters, the concept of dishonesty. 

24. Division 4 of Part 5 is entitled “Money laundering and dealing in instruments of crime”. Section 138 of the CLCA, headed “Money laundering”, provides in subsection (2) that a person who engages, directly or indirectly, in a transaction involving tainted property in circumstances in which the person ought reasonably to know that the property is tainted is guilty of an offence. For the purposes of s 138 of the CLCA, a transaction is defined to include bringing property into the State, receiving property, being in possession of property, concealing property, and disposing of property.

25. Division 5 also contains offences of dealing in instruments of crime, deception, dishonest communication with children, and dishonest dealing with documents. 

26. The offences in Part 5 thus relate to “property”. There are no offences in Part 5 which are expressly referable, or confined, to “money”.

    Consideration

27. The nub of the appellant’s submissions is that money should be construed broadly to reflect contemporary understanding of the word so as to facilitate the purpose of the legislative reforms to avoid technical distinctions and regulate dishonest conduct in a way readily understood by the general public.  The respondent, on the other hand, contends that money should, consistently with its traditional common law usage, be confined to a species of tangible property, comprising coins, bank notes or other physical forms of currency.

28. It is to be acknowledged that a survey of the dictionary meanings of the word “money” reveals both narrower and broader meanings of the word, depending upon its context.  In some contexts it may carry a narrower meaning, confined to physical currency in the form of notes and coins.  This narrower meaning is reflected in the common law limits upon the offence of larceny.  In other contexts it may carry a broader or more flexible meaning, extending to any medium of exchange or store of value.

29. Before addressing the proper interpretation of “money” in Part 5, we turn to consider the authorities relied upon by the appellant in support of a broad and flexible interpretation to “money”.

30. In R v Hunt[28] the defendant was charged with contravention of a provision of the Crimes Act 1900 (NSW) which created the offence of fraudulently misappropriating to one’s own use “money or valuable securities” or the proceeds thereof. The defendant was charged with five counts of fraudulently misappropriating “money” being the proceeds of cheques received by him. The legislation defined “money” as including all coined money and all bank notes or instruments payable to the bearer. “Valuable security” was defined inclusively as including any cheque or deposit in a bank.

    [28]   R v Hunt (1996) 88 A Crim R 307.

31. The New South Wales Court of Criminal Appeal concluded the evidence established the fraudulent misappropriation of money on the basis that, once the cheques were banked and cleared, the defendant received “money”, albeit that it was the proceeds of the cheques.[29]  Justice Smart (with whom Hunt CJ at CL and Simpson J relevantly agreed) observed that only lawyers speak of choses in action and, in general speech, the amount standing to the credit of a customer of a bank is described as money.  His Honour did not accept the contention that the separate definitions of “money” and “valuable security” meant it must have been intended that “money” and “valuable security” were to have mutually exclusive, rather than overlapping, meanings.  Justice Smart considered this was a case where the prosecution could have alleged the receipt and misappropriation of a cheque or the proceeds of a cheque or money. 

    [29]   R v Hunt (1996) 88 A Crim R 307 at 317 (Smart J).

32. In Kingdon v Western Australia,[30] the defendant was charged with stealing property pursuant to provisions of the Criminal Code 1913 (WA) which defined stealing by reference to taking or fraudulent conversion of “property”. The legislation contained a broad, inclusive definition of “property” with multiple descriptors including money and bank credits. In one ground of appeal, the defendant contended the actions in transferring funds between bank accounts did not constitute the offence of stealing with which the defendant was charged because the bank credits were not money but choses in action. The Court of Appeal rejected that submission on the basis the defendant was charged with theft of property and the definition of property included bank credits.[31] 

    [30]   Kingdon v Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449.

    [31]   Kingdon v Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 at [21]-[22] (Martin CJ, Pullin and Mazza JJA agreeing).

33. Another ground of appeal related to the trial judge’s direction to the jury that they could be satisfied the defendant fraudulently converted the property represented by the bank credits held on trust even if she intended to repay that money.  This direction referred to a deeming provision in the legislation which provided that a person was deemed to take or convert property fraudulently if, in the case of money, the person did so with the intention of using it even though he may intend to afterwards repay the amount.  Reliance was placed on a specific definition of “money” in the legislation and the distinction between money in the sense of notes and coins and the deposits of funds in a bank.

34. Chief Justice Martin said that in contemporary English usage the word “money” has a much broader meaning than merely currency in the form of coins or bank notes and those broader references included the common reference to money at the bank.[32]  Chief Justice Martin considered that prior authorities[33] provided strong support for the conclusion that “money” in the Criminal Code 1913 (WA) should be construed in accordance with its common usage to include the proprietary interest arising from the deposit of funds at a bank. His Honour rejected the argument that the different forms of personal property included within the general definition were mutually exclusive. His Honour also distinguished the decision of the Supreme Court of the Australian Capital Territory in R v Hawcroft,[34] in which Marshall J held that, under the Crimes Act 1900 (ACT), theft of money did not extend to the theft of a chose in action represented by a balance in a bank account.

    [32]   Kingdon v Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 at [26] (Martin CJ, Pullin and Mazza JJA agreeing).

    [33]   R v Hunt (1996) 88 A Crim R 307 at 317; Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 at 518-519 (Dawson, Toohey and McHugh JJ) and 534 (Kirby J).

    [34]   R v Hawcroft [2009] ACTSC 145 at [18]; see also Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [116]-[117], [130]-[135] (Mossop, Baker and Abraham JJ).

35. Whilst Hunt and Kingdon both provide some support for a broad, ordinary usage meaning of “money” which would extend to a chose in action represented by a balance in a bank account, both were focussed upon the meaning of that word in the context of the particular statutory provisions under consideration.  In both cases, a narrow construction would have led to technical distinctions governing the breadth of the relevant offence provisions and, to that extent, would have tended to undermine the apparent legislative intention and purpose.

36. The question in this case is whether “money” in the context of Part 5 was intended to have its commonly understood meaning and whether that meaning is required to give effect to the legislative purpose.

37. The approach to the construction of terms which have a range of meanings, including legal meaning, was described by Priestley JA in Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd[35] as follows:[36]

    In considering the appropriate meaning of the words in their setting it is my view that if there is one ordinary and natural meaning of the words then that meaning must be given to them, but if as is the case here the words have a range of meanings, then the construction to be given to the words used must take into account the legal as well as the ordinary uses to which they have been put. No matter how hard a draftsman tries to keep the language of a statute clear and simple, the statute is a legal document.  The Sale of Goods Act1923 (the Act) is a legal instrument using words with legal significance in an overall context where all concerned with its passage through Parliament knew the past history of the words used in it and knew also that the meaning to be put upon the words in cases of such doubt as would lead to litigation would be decided by lawyers. Thus when this Court comes to consider the meaning of the words in s 28 of the Act it seems to me necessary to make the kind of survey made by McHugh JA in his reasons. The object of the approach is not to find the legal as opposed to the ordinary meaning, but to find from the range of legal and ordinary meanings, which in any event will seldom be in watertight compartments, the meanings best suited to the statutory document as a whole.

    [35]   Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475.

    [36]   Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1985) 3 NSWLR 475 at 482-3.

1. There are some textual matters in Part 5 which may inform whether “money” was intended to encompass choses in action such as bank account credits. There are relatively few references to “money” in Part 5 or elsewhere in the CLCA. The definitions of property and proceeds of property include “money”. Money is not defined. Section 138 is entitled “money” laundering but framed by reference to dealing in tainted property. 

2. The definition of “property” in s 130 of the CLCA is inclusive. The four kinds of property specifically referred to in the definition are money, intangible property, electricity and wild creatures. The specific references to the species of property other than money are explicable in the historical context in which specific provisions were required to address theft of intangible assets, choses in action, electricity and wild animals, none of which were capable of founding an offence of larceny at common law. Whilst the purpose of a specific reference to money is not as obvious, it may be that it is intended merely to be confirmatory of the fact that the offence provisions in Part 5, which are expressed by reference to property, are intended to extend to property in the form of money.

3. Unlike other definitions within s 130 of the CLCA, such as the definition of “owner of property”, subparagraphs (a) – (d) are not separated by “or”. There is a degree of overlap between subparagraphs (a) – (d). A “wild creature” stands alone. However, electricity also constitutes “intangible property”. If broadly construed, “money” would encompass some kinds of choses in action, but choses in action would not encompass money in the sense of currency. The partially overlapping nature of the subparagraphs of s 130 makes it difficult to discern any clear indication from its immediate statutory context whether “money” was intended to include choses of action in the form of funds in a bank account.

4. The Second Reading speech supports the appellant’s contention that the manifest purpose of Part 5 was to address the failure of the existing regime of offences to cope with the current social and legal environment in which the law is intended to operate.[37] However, a broad definition of money as including choses in action is not required to effect that manifest purpose or to facilitate the operation of Part 5. The concept of ‘property’ would encompass all forms of currency, regardless of whether “money” extends beyond coins, bank notes or other physical forms of currency.

   [37]   South Australia, Parliamentary Debates, House of Assembly, 29 May 2002, 362 (Michael Atkinson, Attorney-General). 

5. The only references to “money” within Part 5 of the CLCA are found in:

   ·the definition of “proceeds of property” and “property”;

   ·s 136, which is an evidentiary provision enabling a person to be charged with and convicted of theft by reference to a general deficiency in money or other property;

   ·the notes to s 137 which include an example of robbery by reference to money taken from a till (that is, notes and coins);

   ·the heading to Division 4 and the heading of s 138 (“money laundering”).

6. By way of contrast, the provisions which create the substantive offences are articulated by reference to “property”. In s 134, the offence of theft is framed by reference to dealing dishonestly with property in certain circumstances. Section 138 articulates the offence entitled “money laundering” by reference to a person directly or indirectly engaging in a transaction involving property. None of the offences within Part 5 of the CLCA are specifically articulated by reference to dealing in “money”. A broad reading of “money” as inclusive of choses in action is thus not required to give effect to that purpose and ensure the satisfactory achievement of the aims of the legislation. Put another way, interpreting “money” in the narrow manner the Magistrate did, and as contended for by the respondent, would not alter the scope of the offence provisions, or make their operation dependent upon technical distinctions.

7. Adopting the approach to definitional provisions referred to by McHugh J in Kelly v The Queen[38] and the High Court in SkyCity Adelaide Pty Ltd v Treasurer of South Australia,[39] the substantive enactment, s 138, is to be read by reading into it the words of the definition, and bearing in mind the purpose and mischief to which Part 5 was directed. That mischief was to sweep away technical distinctions and modernise the law of theft by replacing a plethora of specific statutory offences with offences expressed broadly by reference to the concept of dishonesty utilising a broad and inclusive definition of property. That purpose and the mischief to which Part 5 was directed does not require that “money” be construed as incorporating intangible forms property such as a chose in action constituting a bank account because subsection (b) of the definition expressly covers such forms of property. This contrasts with the previous version of Part 5 which expressly differentiated between concepts of “money or valuable securities”, and “chattels, money or valuable securities”.

   [38]   Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216.

   [39]   SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 419 ALR 361.

8. Bearing in mind the relevant text, context and purpose, the reference to “money” in the definition in s 130 is a reference to a species of tangible property, being currency in the form of notes and coins. This reflects the ordinary legal meaning of “money”, which does not include choses in action such as the balance in a bank account. As explained, there is nothing in the relevant text, context or purpose of the provisions of Part 5 of the CLCA which indicates a broader meaning of money which might accord more with the popular use of that word. Adopting this narrower meaning of money would not confine the scope of the offence provisions in the way that the offence of larceny was confined at common law, or otherwise make their scope dependent upon technical distinctions.

9. The difficulty confronted by the prosecution in this case did not arise by reason of any ambiguity in either the definition or the articulation of the substantive money laundering offence in s 138 of the CLCA. It was entirely a result of the manner in which the counts on the information were particularised, and in which the prosecution conducted its case.

10. Accordingly, the appellant does not succeed on this ground of appeal.

    Was the description of the property as “money” a material particular?

11. The first ground of appeal was that the Magistrate erred in finding that the description of the property as “money” was a particular which was an essential part of the offence. 

    Submissions

12. The appellant contended the description of the property was not a significant part of the prosecution case and the particularisation of the property as “money” was not a material particular.  The evidence proved that irrespective of the manner in which the property was described, it was tainted and had been dealt with by the respondent. 

13. Mr Smith submitted the prosecution, knowing the respondent’s argument, chose to narrow its case to one requiring the prosecution to prove each of the alleged transactions involved money rather than some other form of property.  The conduct of the prosecution case was said to make the particularisation of the property as “money” a material particular which was required to be proved. 

    Consideration

14. An information must contain a statement of the specific offence with which the person is charged together with such particulars as are necessary for giving reasonable information as to the nature of the charge.[40]  The statement of the offence is to describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all of the essential elements of the offence.[41]  An information must be laid in accordance with the Joint Criminal Rules 2022 (SA).[42]  Those Rules require an information to include particulars of the essence of the elements of the offence and the description of property sufficient to identify the property.[43]

    [40]   Criminal Procedure Act 1921 (SA), s 22A(1).

    [41]  Criminal Procedure Act 1921 (SA), s 22A(2).

    [42]  Criminal Procedure Act 1921 (SA), s 101(1).

    [43]   Joint Criminal Rules 2022 (SA), rr 62.1(7)(b) and 62.2(5).

15. Particulars are not elements of the offence.  Particulars enable the parties and the Court to understand the nature of the charges and the prosecution case.[44]  A defendant is entitled to be given sufficient details, or particulars, of a charge in order to know the case he or she must meet.  It does not follow that all particulars included within an information for this purpose are material in the sense that failure to prove them will necessarily result in an acquittal.[45]  The question whether or not a particular is a material particular depends on the significance to be attached to it in the circumstances of the case.  It requires close consideration of the terms of any statutory provision and the issues in dispute at trial.[46]  It also requires consideration of not only the terms of the information but also the way in which the parties conducted the case at trial.[47]  This in turn includes consideration of not only the way in which the prosecution presented its case, but also any forensic decisions made by the defence.  The manner in which the case is conducted may give rise to circumstances which make it unfair to an accused to permit the prosecution to depart from its particulars.[48]  Put another way, a particular which is not inherently material to proof of a charge may become material as a result of the way in which the case is conducted.[49] 

    [44]   WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66; R v Pfitzner (1976) 15 SASR 171.

    [45]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [127] (Mossop, Baker and Abraham JJ).

    [46]   WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66 at [45]-[46] (Kirby J).

    [47]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [129] (Mossop, Baker and Abraham JJ); R v Pfitzner (1976) 15 SASR 171 at 185-186 (Bray CJ), 191-194 (Wells J).

    [48]   EPA v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 484 (Gleeson CJ).

    [49]   See, eg, Helps v The Queen (No 3) [2021] SASCFC 10 at [111]-[119] (Peek J), and the cases referred to therein.

16. In Alexander v Bakes[50] a defendant was initially charged with counts of obtaining property, described as “money”, by deception.  The defendant made transfers from a club’s bank account for personal benefit.  During opening addresses, the Magistrate suggested the prosecution should allege the property as a chose in action rather than money.  At the conclusion of the prosecution case, the appellant made a no case submission on grounds including the prosecution had failed to prove that “money” had been stolen and what was stolen was a chose in action.  The prosecution contended the property was correctly described as money but if not, would seek leave to amend the charges to allege theft of a chose in action.  The Magistrate accepted the defendant’s submissions concerning the legal description of the property but allowed the charges to be amended to refer to the property as a chose in action.  The offence for which the defendant was convicted was the offence of theft constituted by dishonest appropriation of property belonging to someone else with the intention of permanently depriving the other person of the property.  The charges were particularised as dishonest appropriation of property, namely money, but were amended to delete the reference to “money” and replace it with “chose in action”.  The Magistrate was satisfied there would be no injustice to the defendant. 

    [50]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27.

17. On appeal, the defendant submitted the Magistrate erred in allowing the amendment because the amendment fundamentally changed the case.  The prosecution accepted the application to amend was extremely late, and came well after the prosecutor was first on notice of the issue, but contended the defendant knew the case against him and the hearing was determined on the merits according to the real issues in dispute. 

18. The Court of Appeal of the Australian Capital Territory considered that the phrase “namely money” in the charge was superfluous, and that the description of the property was a particular not an element of the offence.[51] 

    [51]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [125]-[126] (Mossop, Baker and Abraham JJ).

19. The Court of Appeal rejected the defendant’s argument that unless property which is legally a chose in action is described in that language in the charge (as opposed to, for example, “money”) then the charge cannot be made out.[52]  The real issue in the case was whether the defendant performed the physical acts necessary to transfer the money from one account to another, used the debit card or withdrew cash and if so, whether he did so dishonestly.  As such, the amendment did not result in any material or substantive change to the prosecution case.[53]  Accordingly, although the Magistrate had granted the prosecution leave to amend the charges, in the Court of Appeal’s view it was unnecessary to do so.  In any event, no error had been demonstrated in the grant of leave to do so.[54]

    [52]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [135] (Mossop, Baker and Abraham JJ).

    [53]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [136] (Mossop, Baker and Abraham JJ).

    [54]   Alexander v Bakes [2023] ACTCA 49; (2023) 21 ACTLR 27 at [137] (Mossop, Baker and Abraham JJ).

20. In this case, the offences with which Mr Smith was charged were offences pursuant to s 138 of the CLCA, that is, offences of dealing with property he ought reasonably to have known was tainted. The counts were appropriately framed by reference to property in accordance with s 138, but then particularised as involving “money”.

21. Mr Smith was well aware of the case he had to meet.  It is apparent from the closing submissions made to the Magistrate that the two significant issues at trial were the legal question associated with the descriptor “money” and whether the mens rea of the charge had been proved beyond reasonable doubt.  At trial, detailed particulars were provided of the property in exhibit P2, which identified the nature of each alleged dealing including the kind of property, whether comprising funds transferred, purchases, or withdrawals of cash.  There was no confusion as to the nature of each transaction the subject of the charges.  The descriptor “money” did not give rise to any confusion given the manner in which each alleged transaction was particularised in exhibit P2.  As was the case in Alexander v Bakes, the reference to “namely money” in the particulars of the charge was superfluous and not material. It was neither inherently material as an element of the offence, nor rendered material by the way in which the case was conducted. In the circumstances, the application of an inapt label to the property did not result in the consequence that the property was not property within s 138 of the CLCA.

22. It follows that there is merit in the appellant’s first ground of appeal.  However, whether the circumstances surrounding the prosecution conduct of its case should lead this Court to decline to exercise its discretion to intervene is a matter addressed later in these reasons.

    Did the Magistrate err in failing to amend the information?

23. The third appeal ground was that the learned Magistrate erred by failing to amend the Information. 

    Submissions

24. The appellant submitted that if the Magistrate considered “money” to be a material particular, the Magistrate should have amended the information.  As there was no application to amend before the Magistrate, this must be understood as a submission that the Magistrate erred in failing to amend the information of her Honour’s own volition.  The appellant further submitted that if it were unsuccessful on its first two grounds of appeal, this Court should amend the information.

25. On the respondent’s argument, it would have been substantively and procedurally unfair for the Magistrate to amend the information given the manner in which the prosecution chose to run its case. 

    Consideration

26. Section 181(2)(a) of the Criminal Procedure Act 1921 (SA) enables a court to amend an information to cure a defect of substance or form, but provides that no amendment may be made if the defendant has been substantially prejudiced by the defect.

27. The decision to amend or not amend an information is discretionary. 

28. As was the case in Alexander v Bakes, no amendment was required because “money” was not a material particular.  However, in that case, the Court held that, if amendment had been required, the Magistrate did not err in failing to permit or order the amendment.

29. This case is different from Alexander v Bakes. In that case the prosecution expressly took the position at trial, albeit very late in the trial, that if particularisation of the property as “money” was not correct, it sought leave to amend the charges to allege theft of a chose in action.

30. The prosecution in this case did not apply to amend despite being on notice in advance of the trial of Mr Smith’s attitude to the way the charges were particularised.  The prosecution made a choice to not seek to amend and to instead run its case on the basis that “money” included choses in action comprising bank account credits.  The Magistrate was not invited to treat the particulars as immaterial, even as an alternative argument or alternative route to conviction.[55]  The Magistrate did not err in failing to amend the information of her Honour’s own volition in the face of the prosecution’s forensic choice to proceed in this way. 

    [55]   Police v Ricky Lee Smith [2024] SAMC 29 at [19].

31. It follows that the appellant does not succeed on the third ground of appeal.

    Discretion as to disposition

32. Given the conclusion that the particularisation of the property as money was not material, we turn to consider the proper disposition of the prosecution’s appeal of the acquittals.

33. The prosecution may appeal an acquittal pursuant to s 42 of the Magistrates Court Act 1991 (SA).[56]  However, the undesirability of exposing a defendant to double jeopardy is a relevant consideration in determining the appropriate disposition of such an appeal.  The Court retains a discretion not to intervene even if there is merit in one or more of the grounds of appeal.

    [56]   Police v Cadd (1997) 69 SASR 150 at 155 (Doyle CJ).

34. In R v Brougham[57] Peek J considered it well established that in South Australia the Supreme Court will have close regard to the double jeopardy principles and exercise appellate restraint when addressing prosecution appeals against acquittals by Magistrates.[58]  This particularly will be the case where an acquittal proceeds from a lack of satisfaction by the Magistrate of guilt on the facts, as distinct from a misapprehension as to the law.[59]  This analysis was referred to with approval by this Court in R v Fitzgerald.[60]

    [57]   R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546.

    [58]   R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546 at [49].

    [59]   R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546 at [49], citing Thoroughgood v Warren (1979) 20 SASR 156 at 159 (Zelling J).

    [60]   R v Fitzgerald [2023] SASCA 34 at [34]-[55] (Doyle, Bleby and David JJA).

35. The appellant accepted that considerations of double jeopardy, as outlined in Everett v The Queen,[61] apply to the disposition of a prosecution appeal against an acquittal, despite the flexibility of the powers conferred by s 42 of the Magistrates Court Act, and the lack of a requirement for permission to appeal.  The appellant accepted the Court must exercise an overriding discretion, but contended in this case there was no prejudice, and Mr Smith made a considered decision not to plead guilty which ran the risk of the technical defence not being accepted.

    [61]   Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295.

1. Mr Smith contended it would be oppressive to now find him guilty by reason of the prosecution’s erroneous stance which was not only deliberate, but also persisted in by prosecution after being notified of the defence position.  Whilst not suggesting that the prosecution stance impacted the way the defence conducted the trial, the respondent argued that the prosecution stance was relevant to Mr Smith’s consideration whether to plead guilty and seek the benefit of a statutory reduction in his sentence.

2. In having regard to the concern to avoid double jeopardy, the High Court in Everett recognised the need, in the interests of fairness to the defendant, to take into account the prosecution’s conduct of a case, even in circumstances where the judge has erred in a fundamental way.[62]  The courts have shown a particular reluctance to permit the prosecution, on a Crown appeal, to rely upon a submission or position not advanced below.[63]  That must be all the more so where the prosecution seeks, on appeal, to rely upon an approach which it expressly disavowed below. 

   [62]   Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 303-4 (Brennan, Deane, Dawson and Gaudron JJ) and 307-8 (McHugh J).

   [63]   R v Beaumont [2023] SASCA 128 at [25]-[31]; applying Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227 at 233 and  R v Wilton (1981) 28 SASR 362 at 367-368).

3. In this case, the prosecution made, and persisted in, a deliberate forensic choice.  While there was a risk the defence reliance on a narrow meaning of “money” would not succeed, nevertheless Mr Smith’s strategic decisions were made in the context of the prosecution’s unwavering position.  That position was inherently relevant to Mr Smith’s decision whether or not to plead guilty and seek a reduction in his sentence. 

4. In those circumstances, despite the lack of materiality of the particulars, the appeal should be refused.

   Orders

5. The appeal is dismissed.

6. DAVID JA: Ricky Lee Smith (‘the respondent’) was charged with 84 counts of money laundering contrary to s 138(2) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The Magistrate acquitted the respondent of 80 counts and convicted him of four offences. The respondent is yet to be sentenced. The Director of Public Prosecutions (SA) (‘the Director’) appeals against the acquittals.

7. The Director’s appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) (‘the Magistrates Court Act’) and has been referred to this Court for hearing and determination. The appeal is by right with no requirement for permission to appeal. It is to procced by way of a rehearing. Pursuant to s 42(5), this Court may set aside the acquittals and substitute convictions, or order a fresh trial, or dismiss the appeal.

8. I agree with the reasons of S Doyle JA and Stein AJA as to the meaning of ‘money’.

9. I also agree that the particulars which described the property as ‘money’ were not material, and that the Magistrate was not obliged to amend the particulars.

10. However, I have reached a different conclusion as to the disposition of the appeal. For the reasons which follow, I would allow the appeal on ground 2, substitute convictions on all 80 counts where acquittals were entered, and remit the matter to the Magistrate Court for the respondent to be sentenced.

11. In my reasons, I will only recount those matters necessary to explain my proposed orders.

12. For the most part, the factual circumstances of the alleged offending were not in dispute at trial nor on this appeal. Between 6 March and 15 March 2020, persons stole items from the home of Verena Johnson including a notebook which recorded the details of three bank accounts held in the name of the Lutheran Laypeople’s League (‘the LLL bank accounts’).

13. On 16 and 17 March 2020, a total of $80,000 was transferred from the LLL bank accounts in separate amounts of $10,000 and deposited into bank accounts in the respondent’s name. Over the following days, the respondent transferred various amounts of those funds to different accounts. He also used part of the funds to purchase goods and services and withdrew funds in cash.

14. On 23 March 2020, the respondent was arrested and charged with the offence of money laundering.

15. The matter proceeded to trial on 26 and 27 February 2024. The Information charged 84 counts of money laundering contrary to s 138(2) of the CLCA. At trial, all 84 counts were particularised in the same manner, namely that the respondent:

    Between the 14th day of March 2020 an 19th day of March 2020 at GLENELG and other places in the said State, engaged, directly or indirectly, in a transaction involving property, namely money, of the value of more than $2,500 but no greater than $30,000, that he ought reasonably to have known to be tainted property.

    (Emphasis added.)

16. The individual transactions included:

    ·charges involving the transfer of tainted funds by the respondent from his bank account into another account belonging to himself or a third party: counts 46-72, 76-80, 83-86, 88, 89, 117-119 (‘the transfer charges’);

    ·charges involving the respondent using the tainted funds in his account to purchase goods and services: counts 73-75, 82, 90-106, 107-115, 120-126 and 128-129 (‘the purchase charges’); and

    ·charges involving the respondent withdrawing tainted funds from his bank accounts: counts 81, 87, 116 and 127 (‘the withdrawal charges’).

    The trial

17. In proof of each offence of money laundering, the prosecution was required to establish the following elements: first, the respondent engaged directly or indirectly in each transaction; secondly, each transaction involved property; thirdly, the property was tainted property; and fourthly, the circumstances were such that the respondent ought reasonably to have known that the property was tainted.

18. The issues in dispute at trial devolved to whether: in respect of the transfer charges and the purchase charges, the tainted property was in fact ‘money’ (as particularised in each count); whether in respect of the transfer charges, the respondent’s use of the tainted property to purchase goods and services was, in fact, a ‘transaction’; and whether in respect of all charges, the respondent ought reasonably have known that the property dealt with was tainted. 

19. Accordingly, there was no dispute as to the first and third elements of each offence. In relation to the second element, and the question of whether each transaction involved ‘money’, the challenge at trial was confined to the descriptor of the property found in the particulars, namely ‘money’. There was no dispute that each transaction involved ‘property’ for the purposes of s 138(2) namely, intangible property, such as a chose in action. Rather, the respondent challenged the particulars of each count which described the property as ‘money.’ Nor was there any dispute or confusion as to the funds or transaction the subject of each charge.[64]

    [64]   The prosecution provided a document labelled ‘Particularisation of charges’ to the respondent at the outset of the trial which isolated the transaction the subject of each count on the Information by reference to matters such as the date, amount and the recipient’s name and bank account.

20. In addition, much of the evidence adduced by the prosecution was not contested by the respondent. At the outset of the trial, a series of agreed facts were provided to the Magistrate and admitted pursuant to s 59J of the Evidence Act 1929 (SA). They were as follows.

    ·As of 16 March 2020, the respondent operated multiple accounts with People’s Choice Credit Union (‘PCCU’) and National Australia Bank (‘NAB’).

    ·On 16 and 17 March 2020, eight transfers of $10,000 were made from Mrs Johnson’s bank account into one of the respondent’s bank accounts. Those transfers were made unlawfully and without Mrs Johnson’s knowledge or consent.

    ·There was little or no money in the respondent’s bank accounts prior to 16 March 2020, and no other substantial receipts (including from any legitimate source) between that date and the respondent’s arrest on 22 March 2020.

    ·On 18 March 2020, the respondent received a call from a Mr Clune of PCCU. Mr Clune told him that the funds in his account were stolen and that he needed to attend a police station for the purpose of reporting the matter to police. The respondent told Mr Clune that he did not know the source of the funds. He said he had permitted a woman that he had met three weeks earlier to use his account. He also told Mr Clune that he was permitted to ‘access’ some of the funds and that he had bought a car.

    ·On 22 March 2020, the respondent called the police and reported the theft of $15,000 from a hotel room where he was staying. He declined to give a statement concerning the missing cash.

    ·When spoken to police on 22 March 2022, and whilst not under caution, the respondent said he had allowed his account to be used to receive $60,000 at the request of a woman named Iesha Kennedy. The respondent provided details of transactions he had made involving those funds at her request.

    ·On about 22 or 23 March 2022, when interviewed under caution following his arrest, the respondent told police:

    -he had met a woman named Iesha Kennedy three or four weeks earlier and he had seen her four or five times;

    -he communicated with Ms Kennedy via an encrypted messaging application, and consequently their communications were unable to be retrieved;

    -on about 14 March 2020, Ms Kennedy told him that she needed to use his bank accounts but did not provide any explanation as to why, and he did not ask her for any explanation;

    -he gave his PCCU online banking details to Ms Kennedy but because two-factor identification was required for transactions other than deposits, Ms Kennedy gave him directions about how the transactions were to be dealt with, and he followed her directions;

    -in relation to his withdrawals of cash and his purchase of goods and services with the funds, Ms Kennedy told him that he could keep some of the money; and

    -Ms Kennedy said that she was going to give him half of whatever was left over when she had repaid some debts.

21. There was unchallenged evidence adduced at trial that of the $80,000 transferred from the LLL accounts:

    a.$18,003 was recovered from the respondent’s accounts.

    b.$17,250 was withdrawn as cash.

    c.$34,950 was transferred to Ms Kennedy.

    d.$6,120 was transferred to other people, including the respondent’s former partner.

    e.$4,427 was spent on goods and services. 

22. The investigating officer was unable to contact Ms Kennedy, and she was not called as a witness at trial nor charged with any offence.

23. The respondent did not give evidence at trial nor call any evidence.

    The defence position at the close of the evidence

24. In her closing address, defence counsel conceded that the funds the subject of each charge was property and tainted; and that the respondent had been dealing with property when he transferred some of the tainted funds from his account to another. However, defence counsel submitted that the property was ‘an intangible legal right against the bank … not money.’ That is, it was submitted that the property was incorrectly particularised as ‘money’. It was, however, conceded that the property (the subject of both the purchase charges and transfer charges) could have been particularised as intangible property (ie - a chose in action) so as to fall within the ambit of s 138(2).

25. At the close of the evidence, the only factual issue in dispute was whether the prosecution had proved beyond reasonable doubt that the respondent ought to have known that the property was tainted (the fourth element of each offence).

    The Magistrate’s reasons for verdict

26. Consistent with the manner in which the parties conducted their cases, the Magistrate framed the issues for determination as being whether the transfer and purchase charges involved dealings with property which constituted ‘money’ (as particularised); whether the use of the ‘tainted property’ to purchase goods and services was a ‘transaction’ pursuant to s 138(3); and whether the respondent ought to have known the property was tainted.

27. The Magistrate held, correctly, that funds in the bank account were not money. As to the purchase charges, the Magistrate held that the use of the tainted funds to purchase goods and services was a ‘transaction’ within the meaning of s 138(3). This finding is not challenged on appeal. The Magistrate also found the fourth element proven, namely, that the respondent ought to have known that the money in his account was tainted. Again, this finding is not the subject of challenge on appeal.

28. The Magistrate proceeded to acquit the respondent of all counts relating to the transfer charges and the purchase charges solely on the basis that the property was not ‘money’ (as particularised) for the purposes of s 138(2). The Magistrate, noting that the ‘prosecution was on notice that Mr Smith intended to challenge the wording of the Information’, and ‘[n]o amendment was sought, nor was the Court invited to consider the words “namely money” to be immaterial to the pith and substance of the charge’, held that the prosecution was ‘bound by its pleading.’ The Magistrate considered all other elements of the offence proven but entered acquittals on the transfer and purchase charges on the basis the property was not in fact money, as particularised.

29. As mentioned earlier, I agree with S Doyle JA and Stein AJA that for the reasons they have articulated, the property the subject of each charge is not ‘money’ for the purposes of s 138(2). The Magistrate was not in error in so finding.

30. I also agree that the Magistrate erred in finding that the particulars were material. In the circumstances of this case, whether or not the property was ‘money’ was not material. In relation to this ground of appeal, I wish to add the following observations.

31. It is to be accepted that in determining whether a particular is material, regard is to be had to how the prosecution conducts its case at trial. However, the fact that the respondent challenged the descriptor of the tainted property as ‘money’ did not render that description a material particular. This is so because the respondent was provided sufficient information to identify the property the subject of each charge, and the case he was required to meet. As noted earlier, the prosecution provided the respondent with a written document outlining the details of each charge. Moreover, the property the subject of each count, was also referred to, and explained during the prosecutor’s opening and closing addresses. Accordingly, the respondent was provided with sufficient particularity to distinguish one transaction from another, and to understand the case he had to meet. There was no procedural unfairness.

32. The subject matter of each charge (whether labelled ‘money’ or ‘intangible property’ such as a chose in action) fell within the ambit of s 138(2). There would have been no change in the prosecution case had the property been described as a chose in action rather than ‘money.’ As such, the descriptor of the property as ‘money’ was not an essential part of the alleged offence.

33. In addition, the incorrect particulars did not deprive the respondent of a defence such as, for example, where an alibi is raised by defence in respect of a particular date. The fact the respondent took issue with the particulars did not, alone, render them material.

34. Given my conclusion that the particulars were not material, and the respondent was aware of the case he had to meet, there was in fact no obligation upon the Magistrate to amend the Information. It was unnecessary to do so. Nor is there any obligation on this Court to make the amendments sought by the Director on appeal.

    Disposition of the appeal

35. As explained above, I am satisfied that the Magistrate erred in finding that the particulars were material. While the descriptor of the property as ‘money’ was incorrect, this did not entitle the respondent to an acquittal on any of the charges. It follows that the Magistrate erred in law by proceeding to enter acquittals solely on that basis.

36. Under s 42 of the Magistrates Court Act an appeal lies as of right against an acquittal. This Court has held that the principles stated by the High Court in Everett v the Queen[65]  apply in relation to appeals from the Magistrates Court. Accordingly, a Crown appeal will only be allowed in the ‘rare and exceptional case.’[66] An appellate court is required to have close regard to the principles of double jeopardy, and exercise restraint when determining such appeals.[67]

    [65]   Everett v The Queen (1994) 181 CLR 295.

    [66]   In relation to ‘rare and exceptional’ see the discussion in R v Yaroslavceff [2022] SASCA 123 by Doyle JA at [69]-[71]; and R v Ametovic [2024] SASCA 153 at [76]-[101] (the Court).

    [67]   R v Brougham (2015) 122 SASR 546 at [49]- [54] (Peek J, Gray and Nicholson JJ agreeing).

37. The appellate courts have been particularly reluctant to interfere with an acquittal where a Magistrate has entered an acquittal on the basis of having a reasonable doubt as to the sufficiency of the evidence as distinct from an erroneous approach to the law. There exists a greater reluctance to interfere in such a case because a finding of reasonable doubt will often rest on a Magistrate’s appraisal of witnesses and atmosphere of the trial, and the appellate court is generally at a disadvantage in that regard.

38. However, in this case, the Magistrate erred in law by finding that the particulars were material, and by proceeding to acquit the respondent of the transfer and purchase charges solely on that basis. The Magistrate’s conclusions as to the elements of the offences did not depend upon an assessment of the credibility or reliability of any witness. Most of the evidence adduced by the prosecution was uncontested and the respondent did not give evidence at trial. This Court is in as good a position as the Magistrate to determine whether the prosecution had proved its case on each count, noting that the only element in dispute was whether the respondent ought to have known the property was tainted.

39. In relation to this contested element, there was no dispute as to the circumstances from which the Magistrate drew inferences as to the respondent’s state of mind. That is, there was no dispute as to the facts in possession of the respondent at the relevant time, and it remained an objective question whether a person in possession of those facts ought to have known the property was tainted. As mentioned earlier, the respondent did not give evidence at trial, and his version of events is found largely in his police record of interview and his statements to other persons which were unchallenged. There is no disadvantage to this Court when evaluating this material. 

40. On my independent review of the evidence and the whole of the record, I am satisfied that the prosecution proved beyond reasonable doubt that the property the subject of each charge was tainted, and the property had been dealt with by the respondent (both matters about which there was no dispute at trial). I am also satisfied that the evidence established beyond reasonable doubt that the respondent ought to have known that the money was tainted. On his own account, the respondent received a significant sum of funds from a woman, he had known for only a couple of weeks, who provided no explanation as to the source of the funds. Moreover, she used encrypted messaging to communicate with him. The respondent did not make any enquiries as to the source of the funds. He was also allowed to withdraw and spend a large proportion of the funds on himself (or his family and associates). In those circumstances, like the Magistrate, I am satisfied that the evidence established that the respondent ought to have known that the money was tainted.

1. I am satisfied that the prosecution proved the respondent’s guilt on all counts.

2. In determining whether to allow the appeal, I have had regard to the principles of doubly jeopardy, and the anxiety and distress caused to the respondent by being twice vexed by the same matter. In addition, it is to be accepted that the prosecution was put on notice that the particulars were in issue. Yet, the prosecution did not at any stage seek to amend the particulars by deleting the word ‘money’ or alternatively, submit that the particulars were not material, and as such, even if the Magistrate found that the property the subject of each charge was not ‘money’, that finding should not lead to acquittals on the relevant charges as it was nonetheless property under s 138(2) of the CLCA. The stance taken by the prosecution at trial is regrettable.

3. The respondent submits to this Court that it is also relevant that had the prosecution amended the particulars, the respondent would have had an opportunity to consider entering guilty pleas. This submission would have more force had the respondent not contested the fourth element of the offence. Moreover, there was no indication or submission made by the respondent during the trial that should the prosecution amend, he would be minded to enter guilty pleas to the relevant charges.

4. Notwithstanding the principles of double jeopardy and the respondent being twice vexed by the same charges, I have reached the view that in the circumstances of this case, the appeal should be allowed. I would add that this is not a case where the respondent has served a large part of his sentence or where he has been released from custody on a community-based order and will be twice vexed by a return to custody. Rather, the respondent is yet to be sentenced.  

5. For those reasons, I would allow the appeal, set aside the acquittals and substitute convictions and remit the matter to the Magistrates Court for sentence.