R v McKellar (No 3)

[2014] NSWSC 106

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v McKellar (No 3) [2014] NSWSC 106
Hearing dates:	17 - 20 February 2014
Decision date:	18 February 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Verdict of not guilty by direction with regard to count three and also with regard to the alternative count attaching to it.
Catchwords:	CRIMINAL LAW - special hearing - Crimes Act 1900 (NSW) Pt 4AC - dealing with proceeds of crime - section 192F - not necessary to prove a particular offence was committed - meaning of "particular offence" - particular offence rather than particular criminal event - verdict by direction
Legislation Cited:	Crimes Act 1900 (NSW), ss 193A, 193B, 193F Criminal Code Act 1995 (Cth), Part 10.2
Cases Cited:	Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; 253 FLR 164 Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; 272 FLR 246
Category:	Procedural and other rulings
Parties:	Regina Shane Thomas McKellar
Representation:	Counsel: Mr W Creasey SC (Crown) Ms C Davenport SC (Defendant) Solicitors: Mr M Maher - Office of the Director of Public Prosecutions (Crown) Mr B Mallinson - Blair Criminal Lawyers Pty Limited (Defendant)
File Number(s):	2011/180041, 2011/167627

EX TEMPORE JUDGMENT

1. An application has been made by senior counsel for the accused for a verdict by direction with regard to count three on the indictment. That count alleges, in short, an offence of knowingly dealing with proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). The Crown opened on the basis that I, as the tribunal of fact, may also need to consider the statutory alternative, the offence contained in s 193B(3). The subsections are as follows:

193B Money laundering

...

(2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.

Maximum penalty: imprisonment for 15 years.

(3) A person who deals with proceeds of crime being reckless as to whether it is proceeds of crime is guilty of an offence.

Maximum penalty: imprisonment for 10 years.

2. Senior counsel for the accused has submitted, in short, that there is no evidence of a number of essential elements of the offence. She has submitted, first, that there is a high mental element attaching to both the primary offence and the alternative offence and, in truth, nothing has been placed before the Court to disprove what the accused said in his recorded interview with regard to the sum of $6057.80 cash found on his person.

3. She also submitted that in truth there is no evidence that that cash was proceeds of crime, as defined in s 193A of the Crimes Act (NSW), which states that:

proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence.

4. I mean no disrespect to learned senior counsel by dealing with those submissions rather succinctly, and simply stating that to my mind there is a strong circumstantial case that that cash was derived from some sort of criminality. I also consider that it cannot be said that there should be a verdict by direction on the basis that there is simply no evidence either of knowledge on the part of the accused, or of recklessness on his part. Accordingly, I decline to order a verdict by direction on either of those two bases.

5. Senior counsel has made a third submission, however, that pertains to the degree of particularity with which the Crown must point to a particular offence that is said to underlie the definition of the phrase, "proceeds of crime". Section 193F relevantly provides:

(1) To avoid doubt, it is not necessary, in order to prove for the purposes of an offence under this Part that property is proceeds of crime, to establish that:

(a) a particular offence was committed in relation to the property, or

(b) a particular person committed an offence in relation to the property.

...

6. Count three in the indictment (which, as I have said, alleges in short an offence of dealing with proceeds of crime with a particular state of mind, and which carries with it a statutory alternative of a lesser offence that alleges a lesser state of mind) has been brought pursuant to Part 4AC of the Crimes Act (NSW).

7. That legislation is very similar to Part 10.2 of the Criminal Code Act1995 (Cth), which has been the subject of consideration by the Court of Criminal Appeal of New South Wales in Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; 253 FLR 164.

8. By majority, that Court held that s 400.13 of the Criminal Code Act (Cth), a provision that, if not identical, is at the least highly analogous to s 193F of the Crimes Act (NSW),does not relieve the Crown of the burden of proving that the subject matter of the charge is derived from a particular offence (such as armed robbery, as opposed to dealing in prohibited drugs or receiving stolen motor vehicles). It merely relieves the Crown of the burden of proving that the alleged proceeds of crime were derived from a particular criminal event (such as an armed robbery committed on a particular bank branch, at a particular time, by a particular person): see the judgment of Basten JA at [27]-[33] and the judgment of Garling J at [94]-[100].

9. In Director of Public Prosecutions (Cth) v Ngo [2012] NSWSC 1521; 272 FLR 246, I discussed that decision and came to the view that its analysis did not apply to a separate Commonwealth offence that, although related, had markedly different characteristics: Criminal Code Act (Cth) s 400.9(1A).

10. Neither party has taken me to authorities with regard to s 193F of the Crimes Act (NSW), which, as I understand it, commenced in 2005.

11. The learned authors of Criminal Practice and Procedure New South Wales do not refer to any such authority.

12. I have been unable to locate any authority on this particular point.

13. Nor have any subsequent authorities that discuss the judgments in Chen v Director of Public Prosecutions (Cth) and Director of Public Prosecutions (Cth) v Ngo been able to be located.

14. I consider that the principle enunciated by the majority in Chen v Director of Public Prosecutions (Cth) applies by analogy to offences under Pt 4AC of the Crimes Act (NSW) and, in particular, to the facilitative provision contained in s 193F.

15. As I have said, I consider that the relevant provisions are very similar, if not identical, and are highly analogous. It follows that, with regard to count three and its alternative, I consider that the Crown must prove that the large amount of cash in the possession of the accused on arrest was derived from a particular offence.

16. Whilst, to my mind, there is certainly powerful circumstantial evidence that the cash was derived from some form of serious criminality, there is no evidence that demonstrates that it is derived from, or even linked to, a particular offence.

17. It follows that there must be a verdict by direction on count three. I therefore return a verdict of not guilty with regard to it and also with regard to the alternative count attaching to it, which suffers from the same deficiency.

**********

Amendments

17 July 2019 - coversheet and paragraph [9] - corrected citation

Decision last updated: 17 July 2019