R v RK

Case [2008] NSWCCA 338 22 December 2008

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Reported Decision: 73 NSWLR 80[2009] ALMD 4816192 A Crim R 456228 FLR 350

Appeal Outcome: Special leave granted by the High Court (S17/2009 & S18/2009) 19 June 2009Heard 1-2 December 2009 Judgment reservedAppeal dismissed by the High Court 26 May 2010 [2010] HCA 17

New South Wales

Court of Criminal Appeal

CITATION: R v RK and LK [2008] NSWCCA 338

HEARING DATE(S): 1 December 2008

JUDGMENT DATE:
22 December 2008

JUDGMENT OF: Spigelman CJ at 1; Grove J at 78; Fullerton J at 79

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW – Conspiracy – Conspiracy to money launder – Fault element – At common law and under statute - CRIMINAL LAW – Conspiracy – Fault element – "Recklessness" and “knowledge” – Whether sufficient for prosecution to prove that accused was reckless with respect to physical element of the substantive offence– Criminal Code Act 1995 (Cth), ss 5.4, 11.5, 400.3

LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes (Appeal and Review) Act 2001
Criminal Code Act 1995 (Cth)

CASES CITED: Ansari v The Queen [2007] NSWCCA 204; (2007) 70 NSWLR 89
Baladjam v R [2008] NSWCCA 85
Bank of England v Vagliano Brothers [1891] AC 107
Churchill v Walton [1967] 2 AC 224
Giorgianni v The Queen (1985) 156 CLR 473
Johnson v Youden [1950] 1 KB 544
Kamara v Director of Public Prosecutions (UK) [1974] AC 104
R v Wyles; Ex parte Attorney-General (Qld) [1977] Qd R 169
Stuart v The Queen (1974) 134 CLR 426
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
The Queen v Barlow [1997] HCA 19; (1997) 188 CLR 1
Vallance v The Queen (1961) 108 CLR 56
Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359

PARTIES: Regina (Appellant)
RK (Respondent in 2007/11077)
LK (Respondent in 2007/11078)
Attorney General (NSW) (Intervener)

FILE NUMBER(S): CCA 2007/11077; 2007/11078

COUNSEL:
P Hastings QC with A N Williams (Appellant)
G O’L Reynolds SC with B C Kasep (Respondent in 2007/11077)
J Stratton SC with P Hogan (Respondent in 2007/11078)
M G Sexton SC with R A Pepper (Intervener)

SOLICITORS: Director of Public Prosecutions (Cth) (Appellant)
Mee Ling Solicitors (Respondent in 2007/11077)
Hanby & Associates (Respondent in 2007/11078)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Sweeney DCJ

LOWER COURT DATE OF DECISION: 8 July 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWIRComm 130

- 3 -

2007/11077
2007/11078

SPIGELMAN CJ
GROVE J
FULLERTON J

Monday 22 December 2008

R v RK

R v LK

The respondents allegedly dealt with money which was part of the proceeds of a plan to defraud the Commonwealth Superannuation Scheme of some $150M. They were charged with conspiring to deal with money being reckless as to the fact that the money was proceeds of crime, pursuant to s 11.5(1) and s 400.3(2) of the Commonwealth Criminal Code . The Crown case was not that the respondents had knowledge that the money was the proceeds of crime, only that they were reckless as to…

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 RK

Details

AGLC: R v RK [2008] NSWCCA 338
Case: [2008] NSWCCA 338
Decision Date: 22 December 2008

CaseChat Overview and Summary

In the case of R v RK, the appellant was charged with conspiracy to commit a money laundering offence, contrary to sections 5.4 and 400.3 of the Criminal Code Act 1995 (Cth). The dispute revolved around the fault element required for conspiracy to commit the substantive offence of money laundering under the Act. The appellant was found guilty and appealed the conviction, arguing that the prosecution had not proved that he had the requisite fault element for the conspiracy.

The primary legal issue before the court was the fault element necessary for a conspiracy to commit money laundering. The appellant submitted that the prosecution needed to prove that he had knowledge of the underlying offence of money laundering, rather than merely being reckless. The court was required to determine whether recklessness was sufficient to establish the fault element for conspiracy or whether knowledge was necessary. Additionally, the court had to consider the statutory language of the Criminal Code Act and how it aligned with the common law requirements for a conspiracy charge.

The court held that recklessness was sufficient to satisfy the fault element for conspiracy to commit a money laundering offence. The court emphasised that the Criminal Code Act did not require a higher degree of fault than recklessness for the offence of conspiracy to commit money laundering. It was sufficient for the prosecution to prove that the appellant was reckless with respect to the physical element of the substantive offence, which was the underlying money laundering offence. The court found that the prosecution had successfully demonstrated the requisite recklessness on the part of the appellant, and therefore, the conviction was upheld.

The final orders of the court were that the appeal against conviction was dismissed, and the conviction was affirmed. The court found that the prosecution had adequately established the fault element for the conspiracy charge, and therefore, the appellant's conviction was upheld. The court's decision clarified the fault element required for conspiracy to commit money laundering under the Criminal Code Act 1995 (Cth).

Orders