Police v Smith

Case [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…

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Police v Smith [2025] SASCA 37
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[2025] SASCA 37
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CaseChat Overview and Summary

This case involved an appeal by the Police against the acquittal of Mr Smith, who had been charged with money laundering contrary to s 138(2) of the Criminal Law Consolidation Act (CLCA). The dispute centred on the interpretation of the term "money" as it related to the property involved in the alleged transactions. The appeal was heard by S Doyle, David and Stein JJ.

The legal issues before the court were whether "money" as particularised in the charges encompassed intangible forms of currency, such as funds held in a bank account, or was confined to physical currency. The court also considered whether the prosecution's failure to amend the charges, despite being put on notice that the particularisation of "money" was disputed, should lead to the dismissal of the appeal.

The court reasoned that while the definition of "property" in s 130 of the CLCA was broad enough to include intangible forms of currency, the specific reference to "money" within that definition should be interpreted narrowly to mean only physical currency, such as coins and bank notes. This interpretation was based on the traditional common law understanding of money and the distinction drawn in the legislation between "money" and other forms of intangible property. Despite finding that the property in question was not "money" as particularised, the court noted that the respondent could have been convicted without amendment if the prosecution had not insisted on a case based solely on physical money. However, exercising its discretion, the court dismissed the appeal to avoid twice vexing the respondent, given the prosecution's persistent reliance on a narrow interpretation of "money" throughout the trial.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

The respondent did not give evidence at trial nor call any evidence.The defence position at the close of the evidence 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). 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 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. 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. 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. 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.

Decision

Reasons for decision

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 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. 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]. 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].

Ratio Decidendi

Legal Principle Established

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 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. 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. 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”. 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. 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).