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

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.

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.
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.

I mean no disrespect to learned senior counsel by dealing with those submissions rather succinctly, and simply stating that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McKellar (No 3)

Details

AGLC: R v McKellar (No 3) [2014] NSWSC 106
Case: [2014] NSWSC 106
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of R v McKellar (No 3) involved the prosecution of McKellar for an offence under the Crimes Act 1900 (NSW). The dispute centred on whether McKellar was guilty of dealing with the proceeds of crime, specifically under section 192F of the Act. The case was heard in the Supreme Court of New South Wales.

The court was tasked with determining the scope of the term "particular offence" in section 192F, particularly whether it referred to a specific criminal event or a distinct offence. The prosecution argued that the term referred to a particular criminal event, while McKellar contended it referred to a distinct offence. This distinction was crucial as it affected the burden of proof and the application of the verdict by direction.

In its reasoning, the court held that "particular offence" in section 192F referred to a distinct offence rather than a particular criminal event. This interpretation aligned with the legislative intent and avoided imposing an undue burden on the prosecution. The court further directed the jury to return a verdict of guilty based on this interpretation. Ultimately, McKellar was found guilty of the charge under section 192F of the Crimes Act 1900 (NSW).

Orders