SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2017] SASCFC 99
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Doyle)
9 August 2017
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - FINANCIAL TRANSACTION OFFENCES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - PROOF OF SYSTEM
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
Appeal against convictions. Appellant charged with multiple counts of money laundering and separate counts of dishonestly dealing with a document and trafficking in a large commercial quantity of methylampetamine. Convicted for almost all of the money laundering counts and both the single counts after a trial by a judge sitting without a jury in the District Court.
Where the prosecution alleged that the appellant laundered the proceeds of drug trafficking by another woman, Le, and channelled most of the money into the purchase of properties for – where the appellant was alleged to use a system involving the distribution of cash amounts – usually just below $10,000 – to friends and acquaintances so that they could use that money to obtain bank cheques to be applied to settlement for those properties – where the prosecution alleged similar uncharged acts – where the appellant was alleged to have used her contacts and skills as an accountant to facilitate loans for the properties and to make arrangements for the settlements – where the appellant held cash monies for Le and allegedly returned some of those monies to her to partly finance a shipment of methylampetamine, worth almost $500,000.
Whether the Judge erred in admitting evidence of uncharged acts – whether he correctly applied s 34P of the Evidence Act 1929 (SA) and correctly identified the permissible and impermissible uses of the evidence – whether the Judge provided adequate reasons for finding that the sums received by the appellant early in the sequence of events were tainted – whether the Judge gave adequate reasons for his finding that the appellant knew that the sums received were tainted – what use could be made of the Judge’s rejection of the appellant’s evidence in relation to several counts that she did not know monies received from Le were tainted – whether rejection of that evidence could prove the converse – whether the Judge wrongly relied on the appellant’s failure to assert to police that much of the money she had came from profits from her sale of jade, a matter she asserted in evidence – whether convictions on multiple counts unsafe and unsatisfactory.
Held: Vanstone J (Kelly and Doyle JJ agreeing): Appeal dismissed. The Judge correctly directed himself as to s 34P of the Evidence Act; reasons given for findings were comprehensive and sufficient; the Judge was entitled to draw inferences adverse to the appellant’s credit on basis of new and different explanation for large amounts of cash; rejection of appellant’s evidence that she did not know that the monies received from Le were tainted was capable of proving the converse: that she did know; verdicts not unsafe or unsatisfactory.
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
Appeal against sentence totalling 17 years and six months imprisonment with a non-parole period of 11 years and six months. Complaint that sentence manifestly excessive when compared with sentence of Le, who pleaded guilty to similar but not identical charges.
Held Vanstone J (Kelly and Doyle JJ agreeing): Appeal allowed. Sentence set aside. Sentence totalling 12 years and six months imprisonment with a non-parole period of seven years imposed in its place.
Criminal Law Consolidation Act 1935 (SA) s 138, s 288A, s 83E; Evidence Act 1929 (SA) s 34P, s 34R; Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Code Act 1995 (Cth) s 400.4, referred to.
R v MJJ; R v CJN (2013) 117 SASR 81; Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95; Edwards v The Queen (1993) 178 CLR 193, discussed.
R v Forrest (2016) 125 SASR 319; Makin v Attorney-General (NSW) (1893) 14 LR (NSW) 548; R v C, CA [2013] SASCFC 137; R v Tucker (1984) 36 SASR 135; R v Pfitzner (1976) 15 SASR 171; R v Soteriou (2013) 118 SASR 119; Martin v Osborne (1936) 55 CLR 367; Woon v The Queen (1964) 109 CLR 529; Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; Fleming v The Queen (1998) 197 CLR 250; AK v Western Australia (2008) 232 CLR 438; Douglass v The Queen (2012) 290 ALR 699; R v Keyte (2000) 78 SASR 68; The Queen v Baden-Clay (2016) 258 CLR 308; R v Cotton [2015] SASCFC 17; Attorney-General v Tichy (1982) 30 SASR 84; Nguyen v The Queen (2016) 256 CLR 656; R v B, RWK (2005) 91 SASR 200; Markarian v The Queen (2005) 228 CLR 357; R v Ly (2014) 241 A Crim R 192; R v Le [2015] SASCFC 152; Perera-Cathcart v The Queen (2017) 91 ALJR 411; R v Golubovic [2016] SASCFC 144; HML v The Queen (2008) 235 CLR 334, considered.
R v TRAN
[2017] SASCFC 99Court of Criminal Appeal: Vanstone, Kelly and Doyle JJ
VANSTONE J.
The appellant, Abigail Tran, was tried in the District Court, before a Judge sitting alone, on charges of money laundering, dishonestly dealing with a document and trafficking in a large commercial quantity of methylamphetamine. She was found guilty of 21 of the charges. She now appeals against the convictions raising arguments going to various aspects of the reasons for verdicts, including asserted inadequacy, failure to adequately warn against use of propensity evidence, as well as the reasonableness of some of the verdicts.
In addition, there is an application for permission to appeal against the sentence imposed on Ms Tran, which was, effectively, a final head sentence of 18 years. She argues that there was a want of parity when the sentence is compared with that of Ms Tu Loan Le, a woman deeply involved in the course of offending, who pleaded guilty and was sentenced by a different Judge.
Background
The Information contained 46 charges in all. Each of the 22 money laundering counts invoking s 138(1) of the Criminal Law Consolidation Act 1935 (SA) was paired with an alternative alleging constructive, rather than actual knowledge of the property being tainted. In each instance the appellant was found guilty of the principal charge.
The prosecution case was that the appellant acted in league with Tu Loan Le to arrange and facilitate a series of financial transactions by which tainted money – the proceeds of drug transactions – was “laundered” and directed into seemingly legitimate property holdings. A property at North Adelaide was purchased in the name of Tu Loan Le’s daughter, Susan Nguyen, and another at Woodville North in the name of Tu Loan Le. The prosecution proved that most or all of the monies the subject of counts 1 to 16 went into the North Adelaide property and that the amounts referred to in counts 22 to 40 found their way into the Woodville North purchase. The appellant was convicted on almost all of the money laundering counts: 1, 3, 5, 7, 9, 11, 13, 16, 18, 22, 24, 28, 30, 32, 34, 36, 38, 40, and 42.
The prosecution alleged that some tainted money was laundered by the appellant directing it into the business of “Khang’s Noodles”, from where it was paid to Susan Nguyen, ostensibly as wages, although unearned. This conduct was represented by the convictions on counts 16 and 18.
It was further alleged that the appellant took part in sourcing funds to the extent of about $280,000 for Tu Loan Le’s purchase in March 2013 of two kilograms of methylamphetamine. The appellant was found guilty of count 46, trafficking in a large commercial quantity of methylamphetamine, in relation to that allegation.
The prosecution led evidence to prove that part of the appellant’s system involved delivering sums of tainted cash money to third parties, who were instructed either to return it to her via a bank account, pay it to another nominated person, or return it to her in the form of bank cheques. Commonly the cheque amounts would be just under the reportable amount of $10,000.
The prosecution led evidence of what were referred to at trial as “uncharged acts”. Some of these were the acts of others, concerned with the provision of settlement monies for the two properties. To this extent they were not “discreditable conduct” in terms of s 34P of the Evidence Act 1929 (SA) and are not relevant on this appeal. Other acts were allegedly steps taken by the appellant to provide money to others which was used for identified purposes. Then there were payments by the appellant to third parties. Evidence of these was presented to demonstrate the breadth and value of transactions entered into on any day by her, to place the charged transactions into context, and to prove a pattern or system of transactions entered into, or facilitated, by the appellant.
The appellant gave evidence in her defence. She acknowledged a close relationship with Tu Loan Le dating back to their first meeting in a refugee camp in Indonesia in 1983 or 1984. The friendship was rekindled in Adelaide through a chance meeting in mid-2011. From that time they became acquainted with each other’s families.
The appellant’s defence was that the monies the subject of the counts was not tainted. Some of it came, not from her, but from the witnesses who claimed to have handled it at the appellant’s request, some of it was her own legitimate savings and some came from Tu Loan Le. None of it was tainted. Parts of the money for the North Adelaide and Woodville North properties came from loans from the appellant’s own funds to Tu Loan Le or to Tu Loan Le’s daughter, Susan Nguyen. Other parts were loans to Susan Nguyen, which the appellant facilitated.
Early in his reasons the Judge set out the elements of the charges. No complaint is made about those passages.
I now deal with the grounds of appeal. I have changed the order of some of them to assist an understanding of the facts.
Ground 1 – Suggested misapplication of ss 34P and 34R
This ground asserts first that the Judge did not consider the “correct test for admissibility” of discreditable conduct evidence under s 34P of the Evidence Act; but it is not suggested that any evidence which was admitted was inadmissible. This ground relates to uncharged acts which the Judge ruled admissible. The defence ultimately accepted at a pre-trial directions hearing that the charges were properly joined and could be dealt with in one trial. That is, there was an acceptance that all the counts were cross-admissible. The Judge so found: [112].
The thrust of the ground appears to be directed at what is said to be the Judge’s failure to comply with the obligations cast on him by s 34R of the Evidence Act to “identify and explain the purpose for which the evidence may, and may not, be used”. In the appellant’s written submission it is acknowledged that the Judge explained the purposes for which the evidence of discreditable conduct might properly be used. Reference was made to [110] of the judgment, which includes this passage:
[110]... The permissible use of the evidence is to show that the accused had in place an on-going system of providing large amounts of cash to third parties who were directed by her to keep custody of it and/or use it to purchase cheques (mostly bank cheques) which then went (mostly) to the purchase of two properties. The factors that are especially important are that she had large amounts of unexplained cash, that she provided the cash to others to buy bank cheques (rather than doing it herself), that the amount of cash provided was at or just under the reportable limit of $10,000 (after bank fees were payable) and that this system was spread around a large number of people, through different banks (and branches) and different accounts. This evidence also has the permissible use of tending to rebut any innocent explanation for an individual payment or repayment.
The Judge then gave an example of two occasions in late 2011 when the appellant distributed to others very large sums of money. The Judge then said:
[112]In my view, for those reasons, the evidence is cross-admissible as between counts and the uncharged conduct is also able to be used for any count.
In her oral argument, Mrs M Shaw QC, for the appellant put that the “nub” of the complaint was the Judge’s suggested failure to direct himself as to the impermissible use of the discreditable conduct evidence comprising both the counts and the uncharged acts. Counsel put that the only reference to impermissible use occurred in [113] of the judgment and did not go to “the heart of s 34P(1)”, that is, that the evidence may not be “used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct”. The words in quotation marks are taken directly from s 34P(1)(a). The required warning was described by Mrs Shaw as being a warning against propensity reasoning. When pressed to expand on the precise form of the warning said to be required, counsel submitted the following in writing:
I direct myself that I must not use the evidence tending to suggest that the accused committed any charged act, or any finding of guilt I may make on any particular count, to suggest that the accused is more likely to have committed any other charged act because she has committed that first charged act.
Further, I must not use the evidence tending to suggest that the accused committed or was involved in any uncharged act of discreditable conduct, or any finding I may make that she engaged in such conduct, to suggest that she is more likely to have committed any of the charged acts because she has engaged in that conduct.
Mrs Shaw submitted that the only direction the Judge gave himself on impermissible use was found at [113]. I set it out:
[113]In my view the permissible use can and has been kept separate and distinct from any impermissible use. I would not convict the accused on any count unless I was satisfied of her guilt on that count. I would not be in a position to convict on any count just because there is a significant amount of uncharged conduct that may be proved against the accused. Subject to what I have said, I have considered the evidence on one count separately from other counts.
Mrs Shaw submitted that this direction was comparable to the direction given by the trial Judge in R v Forrest (2016) 125 SASR 319 at 328, which direction had been found by this Court not to satisfy the requirements of s 34R.
Mrs Shaw argued that, since the Judge had not described the impermissible use of the evidence of one count in relation to other counts, it could not be inferred that use of the uncharged acts was confined by him in accordance with s 34P(1)(a). Moreover, in this case the uncharged acts potentially had work to do in relation to three different types of offending. In each category the issue was said to be distinct. In relation to the money laundering counts, counsel said the issue was the appellant’s knowledge at the time of her relevant actions. In respect of count 15, dishonestly dealing with a document, the issue was said to be whether or not the appellant acted dishonestly, and in relation to the trafficking charge, count 46, the issue was said to be whether the appellant was knowingly concerned in that trafficking. Therefore, it was necessary to descend to a level of detail as to how the uncharged (and charged) acts could and could not be used in relation to each type of offending.
I consider that it would have been quite wrong for the Judge to have directed himself along the lines suggested. That would have amounted to denying himself the very use of the evidence which justified cross-admissibility and the admissibility of those of the uncharged acts in which the appellant was concerned. In other words, the suggested directions would have prohibited what was in truth a permissible mode of reasoning.
In order to explain that further it is useful to note, as I did in R v MJJ; R v CJN (2013) 117 SASR 81 at [241], that the structure of s 34P follows the format of the famous statement of principle made by Lord Herschell in Makin v Attorney‑General (NSW) (1893) 14 LR (NSW) 548 at 551-552:
It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence is adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.
Just as Lord Herschell commenced with a statement of the effect that evidence which (merely) discloses evidence of other offending is not admissible to prove that it is likely the accused committed the charged offences, so does s 34P. Section 34P(1) replicates and widens the common law rule that evidence of other criminal acts – now amplified to “discreditable conduct” – is not admissible to show as a matter of generality that it is likely the accused committed the charged offences. Just as Lord Herschell did, so s 34P(2) provides more specific purposes for which evidence which discloses discreditable conduct may be admitted. It divides the permissible purposes into two categories. Section 34P(2)(a) deals with non-propensity uses and s 34P(2)(b) with evidence showing propensity.
In MJJ; CJN the Chief Justice set out a comparable but more extensive analysis of s 34P at [12]-[19]. I did the same at [240]-[250]. We each expressed agreement with the other’s reasons. I rely on all those passages.
In R v C, CA [2013] SASCFC 137 at [77] the Chief Justice spoke of the permissible purposes contemplated by s 34P(2). His Honour instanced improbability reasoning, which comprehends a number of different situations, and use as an item of circumstantial evidence leading to guilt. Propensity reasoning might lend itself to being categorised in either way. Another example of the use of discreditable conduct evidence as an item of circumstantial evidence is provided by R v Tucker (1984) 36 SASR 135. There, evidence of the prior theft of a firearm was used as proof of the planning of an attempted murder. In that case propensity evidence was not in issue; the question of intention to kill was the issue to which the evidence was directed. In R v Pfitzner (1976) 15 SASR 171 proof of a previous cannabis offence was used to prove knowledge of the nature of cannabis. Thus it can be seen that in many cases the relevant mode of reasoning, whether propensity reasoning or not, is from the earlier or later incident (charged or not) which discloses bad character to the charged incident.
In the present case the mode of reasoning was different. Here, evidence was presented of numerous instances of the appellant’s connection with transactions involving large amounts of cash money. Most were charged but a number were not. From the whole picture the Judge was asked to infer a pattern or system, which, if established, formed a basis from which proof of the mental element of money laundering could be inferred; and the mental element of dishonestly dealing with a document and the intention to traffic in methylamphetamine could be inferred. Until such an inference was drawn the evidence of individual instances was rather colourless. In other words, the Judge was invited to view the whole scheme of the appellant’s involvement in unusual transactions and, from assessment of that scheme, to evaluate the various charged steps. The Judge was invited to see a pattern or system in the whole, which gave colour to the individual acts. It was not suggested that the appellant had a propensity or proclivity to engage in unlawful dealings involving money laundering; rather, that the overall pattern of her involvement demonstrated such offending.
Because the mode of reasoning presented by the prosecution invited the Judge to evaluate the individual steps from an assessment of the whole, there was no danger that the Judge would engage in an impermissible mode of reasoning. Each step, viewed in isolation, could arguably be explained innocently. It was by viewing the whole course of conduct, comprised of charged and uncharged acts, that the true nature of the appellant’s conduct could best be assessed. It was not proved discreditable conduct unless and until the Judge drew the conclusion that it was criminal conduct.
Consequently, there was no danger of s 34P(1)(a) impermissible reasoning and little danger of s 34P(2)(b) reasoning. Moreover, such danger as remained was precisely identified by the Judge at [113]; that once having been satisfied of an unlawful system or pattern of conduct there might be an inclination to ascribe all steps involving financial transactions to that scheme. Not only did the Judge identify that danger, but his verdicts of acquittal on counts 20 and 21, 26 and 27, and 44 and 45, demonstrate that he evaluated each transaction separately, against the background of what he plainly found to be a proved system or pattern of unlawful dealings with money.
Mrs Shaw’s reliance on Forrest’s case is misplaced. The relevant issue there was identity, which was sought to be proved by certain items of circumstantial evidence. Because the appellant admitted one of the home invasions in what the prosecution said was a series, there was a need for a warning that the jury should not reason from involvement in that incident that the appellant was the sort of person to involve himself in such crimes. That can be contrasted to the use of the evidence in the present case: to give colour to individual acts via an assessment of the appellant’s wider activities.
It is true, as Mrs Shaw argued, that the issue arising in relation to the different types of charges faced by the appellant was different. However, a comprehensive assessment of the appellant’s activities was instructive in interpreting particular actions, regardless of whether the issue in relation to a specific act was the source of funds, knowledge, dishonest intent, or knowing involvement in trafficking. In addition, an evaluation of her credibility was essential in all the charges.
In R v Soteriou (2013) 118 SASR 119 at [21] I pointed out that evidence designed to show an ongoing interest in a particular trade or activity could, incidentally, prove a propensity to engage in such conduct. The distinction between the two analyses can be a fine one. In those circumstances, care must be taken not to direct against a use that is logically open, where the evidence presented is directed to a discrete purpose. In the present case, that difficulty did not arise in respect of the money laundering counts, or, indeed count 15. Here, as already explained, satisfaction of the appellant’s involvement in money laundering was logically antecedent to proof of involvement in criminal activity. Proof of any propensity or proclivity to involve herself in such activities was only an incident of finding that the appellant was part of an unlawful money laundering operation. Therefore, there was no need for a warning against s 34P(2)(b) reasoning. The impermissible uses of the evidence identified by the Judge adequately addressed the requirements of s 34R.
The facts of Martin v Osborne (1936) 55 CLR 367 provide an example of a similar approach to proof. These, viewed in isolation, each of Osborne’s trips from Ballarat to Melbourne carrying passengers would have been capable of innocent explanation. It was when all the trips were viewed together that Osborne’s conduct as an unlicensed taxi driver became clear. This is a good example of the use of improbability reasoning where the uncharged instances of behaviour similar to the charged conduct did not, on their face, disclose unlawful conduct. There was no danger of propensity reasoning in respect of these counts and no need for a warning against it.
If there were any capacity to undertake propensity reasoning in this case, it was almost wholly confined to count 46, the trafficking count. If the Judge concluded that the appellant were guilty of this count on the basis of specific evidence relating to it, including intercepted conversations between Tu Loan Le and the appellant, then that could have demonstrated a propensity to take part in organised drug trading. In this case the Judge eschewed such reasoning: [214]. As I shall develop later, to my mind this was an unduly conservative approach. In any event, inasmuch as I consider that a conclusion of guilt in relation to count 46 could have been imported to the other counts, a warning against reasoning via propensity was not required.
For these reasons I reject the appellant’s claim in ground 1 that the Judge “misunderstood” the requirements of s 34P. On the contrary, it is the draftsman of the ground who appears to entertain misapprehensions about the subject matter.
Ground 6A – Reliance on failure of appellant to advance at interview facts relied on at trial
At trial the appellant gave evidence that over a period she had made significant legitimate earnings through the sale of jade jewellery. She asserted that these profits were what she contributed to the North Adelaide and Woodville North house purchases. The Judge rejected this evidence: [524]-[593]. In doing so, his Honour relied to a degree on the failure of the appellant in her police interviews to put forward jade profits as a source of the funds: [593]. His Honour said that, had she been buying and selling jade of significant value for years, as claimed in her evidence, she would have remembered this at the time of the interviews and would have explained that position: [593].
Mrs Shaw argues that the Judge was not entitled to rely on the appellant’s failure to mention the source when interviewed. She relies on Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95. She argues that, while the Judge was entitled to rely on inconsistencies between what was said in evidence compared with what was said in interview, the contrast here was not about inconsistency, but about failure to offer an explanation later relied on.
The principle emerging from Petty is not in doubt. It is that no adverse inference may be drawn against a suspect for exercising his right to silence. Questions in cross-examination about an accused’s decision not to answer police questions should not be asked and no comment should be made by counsel or judge about the exercise of that right: Petty at 99, per the plurality. However, that statement of principle governs the situation where the accused person does not answer police questions; the same principle applies where the accused determines to answer some questions, but offers no comment to others: Woon v The Queen (1964) 109 CLR 529. Neither of those circumstances pertained in the present case.
The appellant took part in two interviews with the police, on 9 May 2013 and 8 July 2013. They were recorded electronically and the records were in evidence. The appellant answered all questions asked of her. Although the appellant was not asked systematically about the source of each allegedly laundered sum of money, she was asked about certain amounts, and also about jade jewellery found at her home.
In the second interview the appellant was asked about the sum of $10,000 which she said she had loaned to Susan Nguyen to pay the deposit on her unit at North Adelaide. She said that money was “from my saving”. She said that later she advanced another amount of about $10,000, so that Susan Nguyen might return to her studies. She said this would have been in the second half of 2012. She said she was not expecting interest, and was only expecting the return of the principal when the house was sold and when Susan obtained a job.
When asked whether she had provided Tu Loan Le with funds for the purchase of the Woodville North property she said: “that would be about roughly $175,000”. She said that money had come from “some transfer of my equity of other house … the rentals that I have … and somewhere I borrow … from my cousins”.
In the first interview she was asked about jewellery found in the safe. When asked whether jade had significance to her she said: “no, in our culture … jade is just a colour green for peace and harmony, peace of mind sort of thing so it’s like what you have tiger eyes or gold stone or it’s less expensive compared to opal … because opal you have various range … so jade is just more to us green is harmony … yes so that is why we tend to go only green …”. She added, “and in terms of value of it, no, compared to opal, very much less”.
During the second interview the appellant was asked about money found in her parents’ safe. In that context she said:
Other origin would be some of the jewellery that I have that I receive from Grandma that I don’t use anymore but my friend buy them off me… and to me that is not a source of income, they are my jewellery that I sell it, I buy another piece of jewellery, or I give it to my parents.
The appellant went on to say that she sold jewellery to “a few friends of mine” and “it’s just a few hundred bucks anyway”. She said, “... these here I mentioned it’s my own jewellery here, anything I have in my room are my own jewellery … and when it’s my jewellery I swap, I exchange … my parents don’t have any say in it”. She said she was not talking about a large amount of money.
These statements are in marked contrast with the appellant’s evidence at trial. The Judge dealt with the appellant’s evidence addressing the source of the funds at some length: [525]-[576]. By way of overview the Judge said this:
[524]The crux of the accused’s case, as explained in her opening outline, is that the funds involved in the various charged transactions are not tainted but, rather, they are a combination of her own legitimate funds, and money loaned from third parties. One source of those legitimate funds was said to be the proceeds of selling valuable jade jewellery, and inherited family estate, over a number of years.
It is not necessary to go to the appellant’s evidence in any detail. The point is that, in answer to police questions the appellant accounted for specific amounts by reference to sources unconnected with jade jewellery trading and denied making much money from such trading. In evidence, jade jewellery trading became a “keystone” – to use the Judge’s word – of her defence: [577].
In my opinion it was entirely legitimate for the Judge to contrast the appellant’s various statements. This involved no breach of the Petty principle at all. Indeed it borders on the disingenuous to argue otherwise. This is not a case where there was any resort to the privilege against self-incrimination. The appellant chose to answer police questions and chose to give evidence. Her various accounts were there to be compared and contrasted. Even if the appellant’s jade jewellery explanation were seen as an entirely new and different explanation advanced as a source of funds for the first time at trial, the Judge would have been perfectly entitled to comment on the failure to raise it earlier. A new and different explanation is by definition one which was not earlier volunteered. To suggest that the appellant was exercising her right to silence in relation to that explanation at a time when she offered other explanations, is in my respectful opinion, a nonsense.
In fact the present case is even clearer. Here, the appellant at interview specifically disavowed making any significant amounts of money from jade trading. In other words, she directly contradicted the account which she later gave at trial.
This ground is without merit.
Grounds 3 and 4 – Adequacy of reasons for finding of guilt on count 42 and claim that the conviction is unsafe
Count 42 charged money laundering in relation to an amount of $150,000 in cash, which, on the appellant’s own evidence, was given to her by Tu Loan Le and stored by her for a time in her safe deposit box at the Commonwealth Bank in King William Street. On the appellant’s evidence it was later returned to Tu Loan Le. The charge alleged that the conduct occurred between 5 January 2012 and 17 May 2013.
The prosecution case on this count was based principally on the evidence of the conveyancer, John Clark, who gave evidence of a conversation he had with the appellant on 13 May 2013. This was four days after the police searched the appellant’s home. He said she telephoned him and told him that she was “in strife” and wished to see him immediately. She then attended at his home. She told him that her house had been raided by police. She said that “six, eight or more months” previously she had received $150,000 from Tu Loan Le. It was concealed in some knitting wool that Tu Loan Le had given her. She said she did not initially realise the money was there and had put the bag in her bedroom where it had stayed for quite some time. Later she discovered the money and tried to contact Tu Loan Le, finding she was in Vietnam. Then she put it in her safe deposit box. At Clark’s insistence, she went with him on the following day to see his solicitor. He was concerned that he was now implicated by what he had been told. Although they saw his solicitor, she did not attend a follow up appointment with a criminal lawyer, as the solicitor recommended.
On 22 May 2013 the appellant again came to Clark’s home. He said on this occasion they spoke about the $150,000 and she then told him that she had made a mistake in what she had earlier told him and that she had actually returned the money to Tu Loan Le some months before. Clark said he left the conversation at that. When he gave evidence of these conversations Clark was not challenged about them.
On the afternoon of 16 May, that is in between the dates of the two conversations related by Clark, police searched the appellant’s Commonwealth Bank safe deposit box, but located no cash. The appellant had already been to the deposit box earlier that day. On the prosecution case, she removed the $150,000 on that morning and then, several days later, spoke to Clark in an attempt to, in effect, recast what she had told him and to assert that she had, much earlier, returned the $150,000 to Tu Loan Le.
The prosecution also relied on a recorded face to face conversation which took place on 18 April 2013 between the appellant and Tu Loan Le. That conversation included mention by Tu Loan Le of having “already lost $500,000”, a reference which the prosecution suggested, and the Judge accepted at [156], arose from the police having apprehended Thanh Ta and Vinh Ta on the highway near Renmark on 24 March 2013, on their way back from Sydney. That amount was consistent with the value of methylamphetamine seized by police from their vehicle. In intercepted telephone calls there was also reference to “$500 dongs”, which the Judge inferred was a coded reference to the same amount of money: [175]. More importantly for present purposes, the appellant reminded Tu Loan Le that she had “150 dongs in the bank”. The prosecution suggested that this was a reference to the same cash which the appellant discussed with Clark. It was alleged that she kept and concealed that money for Tu Loan Le knowing it was tainted, only removing it after she became aware the police were investigating her involvement with Tu Loan Le.
In her evidence the appellant reiterated her claim that before Tu Loan Le went to Vietnam in March 2012, she brought knitting wool to the appellant’s house. A couple of weeks later the appellant looked in the bag of wool and found bundles of money. She counted one bundle, which was $10,000. She said that in a later conversation Tu Loan Le explained to her that the money was from casino winnings, cheques, an insurance payout and earnings. Tu Loan Le told the appellant she had nowhere to keep it, and asked if the appellant would put it in her safe deposit box until Tu Loan Le obtained her own. The appellant claimed to have replied that she would have to apply for a bigger box. She did so on 4 May 2012. She said she returned the money to Tu Loan Le well before her conversations with Clark. The appellant said that she did not know the source of the money aside from what Tu Loan Le told her.
In relation to her visit to the deposit box on 16 May 2013, the appellant said in evidence that she went there, not to remove the $150,000 (which on her case had already been retrieved) but to check that the jade she was storing there had been looked at by police, and, if so, correctly repacked.
The prosecution position in respect of the appellant’s statements to Clark and the Court that the $150,000 came to her hidden in knitting wool was that it was entirely implausible, indeed, that it defied logic.
The Judge drew the inference that the appellant’s reference to “150 dongs in the bank” was a reference to the $150,000 discussed by the appellant with Clark: [178] and [184]. His Honour rejected the appellant’s explanation in relation to that conversation:
[180]The accused gave a confusing, complex, inconsistent and, I find, a contrived explanation for the words ‘150 dongs in the bank’. The accused said she was trying to get Tu Loan Le involved in a new charity she was running in Vietnam. The accused said she started the charity when she felt uneasy about hearing her uncle in Vietnam was skipping or avoiding medical queues for cancer treatment by paying money. She decided to send him AUD$50 a month, which he then uses to provide a drink and banana to patients waiting to see the doctor. She said 150 dong was the price of the drink and 30 dong the price of the banana. She said a reference to a ‘bank’ was wrong and it should have been ‘kitty’.
The Judge’s analysis of the evidence going to count 42 was intertwined with the evidence about count 46, trafficking. His Honour also found that the reference to “losing $500” was indeed a veiled reference to the loss of the amphetamines seized by police at Renmark in March 2013: [184]. In an earlier call, on 7 April 2013 Tu Loan Le had referred in guarded terms to the plight of Tong [Ta] and to the loss of “500”, which the Judge inferred was Tu Loan Le confirming to the appellant that she had lost $500,000: [187].
The Judge referred to the appellant’s curiosity to know whether the (unspecified) incident occurred on the way (to Sydney) or on the way back, and the appellant’s failure to ask why the Ta brothers should be in custody: [192]. The Judge found that the appellant had a significant interest in what had occurred, because she knew that the plan was to buy drugs with drug money which she had held and arranged to have provided to the Ta brothers: [193].
Having made these findings in respect of count 46 and having already found that the $150,000 was the proceeds of earlier drug trading and having rejected the appellant’s evidence about the $150,000, it was a small step to find that the appellant was holding the $150,000 in her deposit box on behalf of Tu Loan Le; that it was Tu Loan Le’s drug money, and that the appellant knew it to be such: [165].
At this point it is relevant to mention that, at trial, the appellant’s defence was not that she did not know the money was tainted, but that the money was not in fact tainted. At the commencement of the trial defence counsel outlined the issues in dispute, as permitted by s 288A of the Criminal Law Consolidation Act. He told the Judge that the issue was whether the monies used for the purchase of the North Adelaide and Woodville North properties were or were not tainted. When defence counsel came to address the Judge at the end of the trial, again the issue was framed in terms of whether the prosecution had proved that the monies were tainted. He said “it seems after I think effectively 12 weeks of trial that the prosecution finally agree that the ultimate issue is the question of the source of the funds. I characterise it that way because it has probably always been the issue and flagged as such in my opening at the outset”. In his reasons for verdict the Judge referred to the “crux of the accused’s case being that the funds involved in the various charged transactions were not tainted”: [524].
It is against this background that the appellant’s claim in ground 3 that less than adequate reasons were given for the finding that the appellant knew that the $150,000 was proceeds of drug trafficking falls to be determined.
As mentioned, the appellant gave evidence that Tu Loan Le explained to her that the money had come from casino winnings, cheques, a car insurance payout and accumulated savings. It is implicit in her evidence that the appellant accepted Tu Loan Le’s statements and was asserting that she believed the money was not tainted. The Judge accepted the appellant’s evidence that Tu Loan Le gave her the money, an admission that she was arguably forced to make because of Clark’s evidence. But his Honour made no finding about the truthfulness of the appellant’s further assertion that it was hidden in wool and not located by her for a period.
In finding that the appellant knew the $150,000 was tainted, the Judge explicitly relied on:
·The rejection of the appellant’s evidence about what she meant in referring to 150 dongs in the bank, calling it “contrived”: [180].
·The later conversations between Tu Loan Le and the appellant regarding the Sydney shipment being seized and the level of knowledge and interest exhibited: [191]-[193].
·The evidence of Clark as to the conversations on 13 and 22 May 2013.
·The appellant’s attendance on the morning of 16 May to access the deposit box: [178].
·The rejection of the appellant’s explanation for going to the deposit box on 16 May and a finding that she went there instead to recover the $150,000: [161].
·The rejection of the appellant’s explanation as to the sources of the $150,000 and the finding that it was the proceeds of earlier drug trafficking: [162].
·The general finding about the appellant’s evidence at [289]: that it was “convoluted, confusing, contradictory and contrived”.
It is apparent that the appellant was unable to offer a credible, innocent explanation for her myriad clandestine and complicated dealings with large amounts of cash money. The keeping of large amounts of money in cash, away from bank accounts, the risks which were taken in moving those sums in the community, and the absence of any means by which such sums could have been honestly acquired either by Tu Loan Le or the appellant all pointed, not only to the money being tainted, but also to the conclusion that the appellant knew full well that the $150,000 was the proceeds of drug crime.
It is necessary to say a little more about Mrs Shaw’s argument that rejection of the appellant’s denial that she knew the money was tainted could not prove the contrary proposition, that she knew the money was tainted. This argument is also relevant to ground 5 where it is claimed that inadequate reasons were given for findings of knowledge on other counts.
As the High Court observed in Edwards v The Queen (1993) 178 CLR 193, ordinarily the finding that a person has lied does no more than affect the credibility of the lying person. However, a finding that a person has lied can involve acceptance of the contrary: Edwards at 208. Whether it does will depend on the subject matter of the assertion or denial. Where the subject matter is a particular state of mind, as opposed to, say, a history of events, rejection may imply the contrary of what is asserted. In Edwards the question was whether a rejection of Edwards’ evidence that he saw nothing could be used to corroborate the victim’s evidence that Edwards committed the offence of procuring another person to commit an act of gross indecency on him. The plurality said at 208:
There is a difference between the mere rejection of a person’s account of events and a finding that a person has lied. A lie is a deliberate untruth. To conclude that a statement is a lie is to conclude that the truth lies elsewhere. In some circumstances, a finding that a person lied will necessarily involve acceptance of the contrary [citing Steinberg v Federal Commissioner of Taxation]. However, the fact that a person has lied does not of itself establish a specific contrary proposition.
(Footnotes omitted)
It can be readily seen that the rejection of Edwards’ evidence was compatible with various alternative possibilities. It did not suggest more than that he had seen something.
In Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, the judge under appeal (Mason J) rejected the evidence of Mr Morris Steinberg concerning his purpose in buying land at Wanneroo. His Honour rejected Steinberg’s denial that his purpose was resale at a profit.
On appeal, Gibbs J (Stephen J agreeing) found that the reasons given by Mason J for rejecting that evidence were convincing. What, then, arose from that rejection? His Honour found that it was not always true to say that rejection of a witness’ evidence on a topic leaves no evidence on that topic. Where the truth must lie between two alternatives, rejection of one of them could support the alternative. Gibbs J said at 694:
The fact that a witness is disbelieved does not prove the opposite of what he asserted: Scott Fell v. Lloyd (1911) 13 C.L.R. 230, at p. 241; Hobbs v. Tinling (C.T.) & Co. Ltd. [1929] 2 K.B. 1, at p. 21. It has sometimes been said that where the story of a witness is disbelieved, the result is simply that there is no evidence on the subject (Jack v. Smail (1906) 2 C.L.R. 684, at p. 698; Malzy v. Eichholz [1916] 2 K.B. 308, at p. 321; Ex parte Bear; Re Jones (1945) 46 S.R. (N.S.W.) 126 at p. 128)), but although this is no doubt true in many cases it is not correct as a universal proposition. There may be circumstances in which an inference can be drawn from the fact that the witness has told a false story, for example, that the truth would be harmful to him; and it is no doubt for this reason that false statements by an accused person may sometimes be regarded as corroboration of other evidence given in a criminal case: Eade v. The King (1924) 34 C.L.R. 154, at p 158; Tripodi v. The Queen (1961) 104 C.L.R 1. Moreover, if the truth must lie between two alternative states of fact, disbelief in evidence that one of the state of facts exists may support the existence of the alternative state of facts: Lee v. Russell [1961] W.A.R 103, at p. 109.
(References incorporated)
Accordingly, Gibbs J dismissed the appeal so far as it related to that land. Barwick CJ, in dissent, said that rejection of the witness’s evidence did not provide evidence of the contrary; although his Honour left to one side the case of two mutually exclusive propositions. He said at 684:
I accept my brother Mason’s refusal to accept Mr. Morris Steinberg’s evidence of what was his purpose in relation to the land and of his denial that that purpose was resale at a profit. But disbelief does not afford evidence of the contrary of what is disbelieved, leaving on one side a doubtful case of a situation of two mutually exclusive possibilities, which the facts of this case certainly do not raise. See Jack v. Smail (1905) 2 C.L.R. 684, at 698; Scott Fell v. Lloyd (1911) 13 C.L.R 230, at p. 241; Lee v. Russell [1961] W.A.L.R. 103, at p. 109.
(References incorporated)
In the present case the assertion that the appellant did not know the $150,000 was tainted was one of two mutually exclusive possibilities or alternative states of fact. If the appellant’s evidence that she did not know the money was tainted were to be rejected, what else was left but a conclusion that she did know? The corollary of the rejection of the appellant’s evidence that she did not know that the $150,000 was tainted was, in this case, that it was to her knowledge tainted. I reject Mrs Shaw’s assertion that rejection of the appellant’s evidence left the appellant in a situation equivalent to not having given evidence at all.
Having said that, in his reasons the Judge said at least once that he was not treating the rejection of the appellant’s evidence as evidence of her guilt: [61]. The appellant argues that this was the correct position to take and, as indicated, I disagree with that. However, I accept that the adequacy of the Judge’s reasons has to be assessed without reliance on what might flow from that rejection. The same does not apply to an assessment of whether the verdict is unreasonable. There, any proper inferences arising from a rejection of the appellant’s evidence are available to this Court.
Unlike the jurisdictions in which the High Court cases of Fleming v The Queen (1998) 197 CLR 250 and AK v Western Australia (2008) 232 CLR 438 arose, the obligation upon a judge sitting alone to give reasons has not been embodied in statute in South Australia. However, the obligation under common law and that imposed in the two statutes under consideration in those cases would probably have much in common. In Douglass v The Queen (2012) 290 ALR 699 the High Court dealt with an appeal from this jurisdiction in which the reasons for verdict of a judge sitting without a jury came under scrutiny. The Court said at [8], referring to AK, that it was “common ground” that in this jurisdiction the Judge was obliged to give reasons sufficient to identify the relevant principles of law and his main factual findings.
The extent of the obligation had been earlier discussed in this Court in R v Keyte (2000) 78 SASR 68 at 78 ff. The Judge must state generally and briefly the grounds which have led to the conclusions reached concerning disputed factual questions and must identify the findings on the main contested issues. Reasons are not required to be lengthy or elaborate. What is required will vary from case to case and will depend upon the circumstances of the case and the issues raised. It is clear that reasons are to be read as a whole.
In this case the Judge gave very extensive reasons in a trial where the charges were many, the evidence extensive and in part technical, and where some complications were introduced by the fact that the principal actors did not speak English as a first language. The case was largely circumstantial. The main task for the Judge was to draw the facts together and determine what complexion important acts and words bore in the entire context. This his Honour did with evident mastery. I do not agree that there is any want of reasoning in relation to the Judge’s conclusion on count 42. This was not a case where the Court could simply list the competing considerations. As I have endeavoured to demonstrate, it was necessary to assess all the allegations, the chronology of the events and the accumulation of a number of quite bizarre explanations for matters, presented by the appellant in her evidence.
In considering her evidence about the $150,000 the Judge was entitled to take into account his overall assessment of the appellant’s credibility. Her conduct, throughout, was extraordinary. The way she dealt with large sums of money was suggestive of criminality. Once her explanations were rejected, the inferences arising from the proved conduct were compelling. When the matter is viewed as a whole it is quite apparent that the verdict of guilty on count 42 was well open to the Judge and that his reasons for reaching that verdict amply justify it. The ground is not made out.
Grounds 5 and 6 – Adequacy of reasons for findings of guilt on money laundering counts and claim that convictions are unsafe
These two grounds focus on proof of the appellant’s knowledge that the funds the subject of the money laundering counts (except count 18) were tainted. The grounds appear in the third amended notice of appeal as follows:
5.The Judge failed to provide any (or alternatively, adequate) reasons explaining his conclusions (at [291], [298], [299], [327], [352], [365], [501], [508], [515] and [522] and implicit in [430]-[431] and [468]-[470]) that the accused knew that each of the sums of money the subject of counts 1, 3, 5, 7, 9, 11, 13, 16, 22, 24, 28, 30, 32, 34, 36, 38, and 40, at the time when each of them was dealt with by her, was proceeds of drug trafficking by Tu Loan Le, with the consequence that the conviction on each of those counts must be set aside.
6.The conviction on each of counts 1, 3, 5, 7, 9, 11, 13, 16, 22, 24, 28, 30, 32, 34, 36, 38 and 40 was unsafe and unsatisfactory because the evidence was not capable of excluding the reasonable possibility that the accused did not know, at the time when the money the subject of each of those counts was dealt with by the applicant, was proceeds of drug trafficking by Tu Loan Le, with the consequence that an acquittal should be entered on each of those counts.
At [238] the Judge (again) correctly identified as issues requiring proof beyond reasonable doubt “whether the funds were tainted property and whether the accused was knowingly involved in a transaction knowing the funds were tainted”.
The appellant argues that in relation to all these counts, although intermediate findings were made, the Judge did no more than indicate that he rejected the appellant’s evidence on the count or counts under consideration and make a finding of guilt. Indeed in respect of count 16 the appellant argues that the Judge did not even make a finding of knowledge. It is said that there was no reasoning explaining the basis on which the Judge was prepared to find that the appellant knew the money dealt with was tainted. Mrs Shaw put that the conclusion of guilt “was often expressed immediately after the Judge indicated that he rejected the applicant’s evidence and it appeared to follow… inexorably from that rejection”. Counsel put that it was not as though the Judge made a finding on one count of a system or pattern of transactions which inferentially applied to all counts.
Mrs Shaw put that the defence case was that the appellant was effectively being used by Tu Loan Le, just as the Judge found Binh Pham and Khang Le were being used by the appellant: [288] and [427]. Since the case was circumstantial the prosecution had to prove that the appellant knew the money was tainted, and that was not proved by rejecting the appellant’s evidence that she did not have that knowledge. Mrs Shaw’s argument is that the rejection of the appellant’s evidence leaves the case on the same footing as if the appellant had given no evidence at all. Counsel argues that, in circumstances where the Judge failed to state on what basis he found knowledge, then this Court cannot be satisfied that he did not reason on an impermissible basis, such as propensity.
Ground 6 is a separate complaint but concerns the same counts as ground 5. The appellant argues that the evidence was not capable of excluding the reasonable possibility that the appellant did not know that the money the subject of each money laundering count was tainted. It is noted that all the charged money laundering transactions occurred not later than July 2012, whereas the trafficking offence, and its associated recorded conversations, occurred much later, in early 2013. This was said to raise the possibility that, even if the evidence could prove that the appellant came to know of Tu Loan Le’s criminal activities by the time of the trafficking offence, there was no proof that she knew much earlier, or, if she did, just when she acquired that knowledge. It is suggested the Judge might have unjustifiably reasoned backwards from the trafficking events to find that the appellant had the relevant knowledge much earlier.
The Judge dealt with the evidence relating to the money laundering counts at some length, commencing at [242], often in groups of related counts, or counts linked by the involvement of particular witnesses. In order to properly assess the appellant’s arguments in support of these grounds it is necessary to examine in more detail what was the appellant’s answer to the allegations comprising each count or groups of counts. That is because, contrary to counsel’s argument, the defence was not simply a denial that the appellant knew that monies received by her from Tu Loan Le were tainted.
Counts 1, 3 and 5 were concerned with dealings between the appellant and a 23 year old student called Binh Pham. Binh Pham said that in 2011 he was in Australia to study. He knew the appellant, mainly through his aunt who was renting a unit from her. He said that in 2011 the appellant asked him to put some money in his bank account to keep for her for a few months. She gave no reason. He identified on his ANZ bank statement a deposit of $5,000 which he believed represented the money provided by the appellant. He said, being a student, he had no funds of his own of this order. He identified a withdrawal of the same amount four days later on 21 December 2011. While he said he did not recall how that withdrawal came about, he did recall a time when he gave the appellant access to his account by means of internet banking. Bank records showed that on 21 December 2011 the amount of $5,000 was transferred from Binh Pham’s account to that of Susan Nguyen. From there it was paid, on 30 May 2012, into the trust account of the conveyancer, John Clark.
Binh Pham then identified a deposit of $10,000 into his account on 29 December 2011. This was relevant to count 3. Again, he believed that this money had come from the appellant. He recalled being in Vietnam and becoming aware that his parents were late in paying his school fees and he suggested to his parents that they could seek the appellant’s permission to utilise her funds, and then pay her back later. However, in the end that was not necessary as his parents were able to meet the school fees. He recalled later moving the $10,000 from his cheque account to an online saver account so that it would earn more interest. He said the appellant agreed to him keeping the interest from that money. Later, at the appellant’s request, he moved the $10,000 back to his cheque account. There were additional transfers between his two accounts, then $4,000 was paid to his aunt, Ha Nguyen. The balance was mixed with a further $8,000 from the appellant (relevant to count 5) which he believed to have been given to him by her in cash and which was then transferred to Binh Pham’s BankSA account. The balance of $10,000 was disbursed to one Hoa Tran (a person not known to Binh Pham) in two payments each of $5,000, and then $4,000 to the appellant.
The appellant’s evidence was that the count 1 money was Binh Pham’s own money which he gave to her in late 2010 just before she took him to the airport, saying that he could not take it back to Vietnam. She kept it for him. In March 2011 she gave the cash back to him when he returned to Australia and told him to bank it. In late 2011, she asked Binh Pham to lend the $5,000 to someone looking to buy a house. She said she would act as guarantor. He agreed and she provided the $5,000 to Susan Nguyen. The appellant said that the $5,000 remains with Susan Nguyen and when Binh Pham requires its return she will approach Susan Nguyen.
Regarding count 3, the appellant said that she banked $10,000 into Binh Pham’s account at the request of Binh Pham’s mother, as his mother was late in paying his school or university fees. She said she had this money as it was the proceeds of jade sales. This amount was then subject to a number of transactions in Binh Pham’s account, but the appellant denied knowledge of them. The appellant described the return of the $10,000 in this way:
AYes, with the $10,000 that he told me that his mum borrow for the school fee, they didn’t need it. She managed to get the money on time and pay the invoice for his school fee. So I said that ‘If you don’t need it, may I please have it back’ and at that time I couldn’t have the money transferred back into my name because that was the proceed from the jade so it was my brother, younger brother [Hoa] at the time that need the money so … I have $5,000 transferred to his ANZ account, which is a chequebook account, and $5,000 transfer into his Commonwealth Bank Account.
The appellant said that her brother was “into bonsai” and was going to add to his collection, but ultimately changed his mind. He also needed money to pay child support. However, he “sort his situation out” and told her he would give her back the cash. He eventually did so and the money went back into her jade account and into the North Adelaide property.
In relation to count 5 the appellant said that Binh Pham spontaneously gave her $8,000 in November 2011, telling her he wished to help his aunt by paying back some of the refurnishing expenses incurred by the appellant for her unit, where his aunt and Binh Pham lived. He told her he had accumulated these funds as he was staying with his aunt for nothing. The appellant said she did not accept the money, but told him she would hold it for him as he was going to Vietnam. Accordingly the appellant said she banked the money in Binh Pham’s account. She said that by arrangement between the two of them it was later divided into two amounts, half being transferred to the appellant for the furnishing expenses. The appellant said she did not know that the other half had gone to Binh Pham’s aunt. It can be seen that in relation to these three counts the appellant’s defence was that the money came, not from Tu Loan Le, but from Binh Pham himself.
The Judge dealt with the prosecution evidence relating to those counts at [242]-[271]. He then moved to counts 20, 24, 28, 30, and 32, about which Binh Pham also gave relevant evidence: [272]-[285]. The Judge then made a number of findings in relation to Binh Pham, including that he was a truthful witness and was being used by the appellant: [287]. At [288] the Judge found that appellant’s conduct in giving Binh Pham money to be banked by him and then transferred to Susan Nguyen’s account was “part of a pattern of behaviour of distancing herself from funds going towards the North Adelaide property”. The Judge then reiterated that he had found the appellant’s evidence to be “convoluted, confusing, contradictory and contrived”: [289]. He rejected the evidence given about these counts by the appellant.
Counts 7 and 9 relied on the evidence of Ngok Tan Mai, a 31 year old Vietnamese student. He met the appellant through Binh Pham’s brother and later rented a house from him. He described himself as a close friend of hers. Relevant to count 7 Mai identified a deposit of $10,000 into his Commonwealth Bank account, made on 20 December 2011. He said that he made the deposit with cash given to him by the appellant. By way of explanation she told him that “her account got some problems”. She told him that she wanted to transfer the money to her niece in Sydney. On 29 December, at the appellant’s request, Mai said he went to the appellant’s home and logged into his account and then the appellant transferred $9,500 of that money. On the bank statement the transferee appears as S Nguyen.
Mai said that on 30 December the appellant gave him a further $9,000 in cash (count 9) and asked him to deposit it into his account. He did so. She told him her own account still had problems and she needed to transfer the money to a friend in Sydney for a loan repayment. On 6 January 2012, at the appellant’s request, Mai said he again went to the appellant’s home and logged into his bank account. The appellant then transferred the amount of $9,500. On the bank statement the transferee appears as M Nguyen. Mai said he did not know an M or an S Nguyen.
In November 2014 the appellant spoke to Mai about the transfers. He had returned to Vietnam to live by then but was in Adelaide for a holiday. She drew him aside and wrote a note for him to look at. It said, if the police asked him where the two deposits had come from, to tell them from his parents, not from her, and that they had sent it to him from overseas.
The appellant said that in 2010 Mai was going to Melbourne, and, being unsure of the security in the house he rented from her, he asked her to hold $10,000 for him. Later, he gave her another $9,000 for her to look after. She said he asked her about investment opportunities in Australia and she told him she had two friends who needed money. He agreed to lend it to them on the basis she would act as guarantor.
When she gave evidence, the appellant agreed there was a conversation between Mai and herself in late 2014. She said she tried to explain why his money had been held up, which was because Susan and Michelle Nguyen were under police investigation. She told him he might need to go to court to explain that the $19,000 had come from his parents.
The Judge rejected the accused’s evidence on this topic. He found Mai to be an honest, reliable and intelligent witness and observed that Mai had been a student in Australia with limited means: [350]. The Judge found that the appellant attempted to get Mai to lie to the police about the source of the $19,000: [351]. The Judge said:
[352]I find the accused used cash money to give to Mr Mai on these two occasions, being Tu Loan Le’s money from drug trafficking and the accused knew that fact.
Counts 11 and 13 concern two amounts of $5,000. The prosecution alleged that the appellant gave these amounts to two persons, Mr Zitis and Mr Tassone, who, like her, worked within the Weeks Group. She did so by way of an advance of travelling expenses for business trips for that employer which they were to undertake in July 2012. A similar private arrangement between the appellant and the two men had been made previously, ostensibly because the employer did not pay expenses in advance and the two men had insufficient funds for the travel. The arrangement was that, later, upon their being reimbursed by their employer for expenses, they would repay the appellant. In satisfaction of both the Zitis advance (count 11) and the Tassone advance (count 13) it was arranged that the reimbursement would be paid by the employer direct to Susan Nguyen’s BankSA home loan account.
The appellant did not dispute making these advances. She said she had dealt with the two men in this way before. She said she would have had the cash from “the jade”. She had earmarked the money to be applied to reduce Susan Nguyen’s home loan, but was prepared to lend it to Zitis and Tassone to help them.
The Judge rejected the appellant’s evidence. He found that these amounts were not from jade dealings, but from Tu Loan Le’s drug trafficking and that the appellant knew that. This was a way of channelling money from drug profits to Susan Nguyen’s benefit, from an apparently legitimate source: [365].
Count 16 and 18 were based on the evidence of Khang Le, the owner of a restaurant in Kilkenny called Khang Le’s Noodles. His family and the appellant’s were well known to each other over a long period. In relation to count 16 the prosecution alleged that, at the appellant’s request, Khang Le took part in a scheme whereby cash monies provided by her to Khang Le were put through the restaurant books to falsely represent that Susan Nguyen was an employee and was being paid wages. Khang Le gave evidence that the appellant asked him to do this so that her friend’s daughter – Susan Nguyen – could support a home loan application by reference to what would appear to be an income. Count 16 concerned an amount of $37,500 paid to Khang Le in cash over a period of two and a half months by the appellant. The prosecution demonstrated the regular payment of amounts by Khang Le into Susan Nguyen’s bank account, some of which went towards the deposit for the North Adelaide property. Indeed, the prosecution led evidence tracing all the monies the subject of counts 1, 3, 5, 7, 9, 11, 13 and 16 into the North Adelaide property. (Count 18 is not relevant to grounds 5 and 6.)
The prosecution called two employees of Khang Le’s Noodles who said that Susan Nguyen never worked there. The prosecution alleged the $37,500 was drug money from Tu Loan Le.
The appellant said in evidence that she did not ever give money to Khang Le to pay Susan Nguyen’s wages. She believed Susan Nguyen worked at the restaurant full-time as the manager, and that she was properly paid. She said there was one incident involving $4,000 that Susan Nguyen had given her, the explanation for which was complicated, and need not now be related.
The Judge accepted the “core” of Khang Le’s evidence that he was given cash by the appellant to arrange false wages payments to Susan Nguyen: [427]. He accepted the evidence of the two genuine employees. He rejected the evidence of the appellant about the $4,000 and her denials regarding the larger total. He found that the appellant was funnelling Tu Loan Le’s drug profits to the woman’s daughter, Susan Nguyen, by the so called ghost employee scheme.
Counts 22 and 24 can be dealt with together. Count 22 concerned an amount of $9,860 in cash which was used to purchase a bank cheque from the Commonwealth Bank on 29 May 2012. (This was either done by the appellant herself or by a fellow employee, Richard Tomlinson, at her request.) The cheque was deposited in Tu Loan Le’s account. That amount was mixed with other funds, including a bank cheque purchased by Binh Pham in the sum of $9,950. This was the subject of count 24. Binh Pham gave evidence that, at the appellant’s request, he deposited $9,950 provided by her into his savings account and purchased a bank cheque payable to Tu Loan Le. Both cheques were paid to into Tu Loan Le’s account on 26 June 2012 and these funds were utilised to provide a bank cheque in the sum of $20,000 payable to the John Clark trust account, which went towards the Woodville North property.
In essence, the appellant’s explanation for these transaction was that a person known to Tu Loan Le needed money. Tu Loan Le asked the appellant to obtain money from the safe deposit box where the appellant had placed Tu Loan Le’s $150,000. The appellant told Tu Loan Le that she would rather transfer the money in bank cheques as she did not want to start a practice of constantly going to the deposit box. Therefore, as an alternative, the appellant provided the money from her own funds. She asked Binh Pham to obtain one cheque and then, finding that he could not do it straight away, told him not to worry about it. She then procured another similar cheque only to find that Binh Pham had gone ahead and met her request. Accordingly she had two bank cheques for a similar amount. These were paid into Tu Loan Le’s account.
The Judge described the appellant’s explanation in relation to the purchase of these cheques as “contrived” and “deliberately false”: [316]. The Judge noted that, as with most of the other bank cheques purchased with cash provided by the appellant, these cheques were just under the reportable amount of $10,000: [318].
Counts 28, 30 and 32 may be dealt with together. Binh Pham said that the appellant approached him with an envelope containing $10,000 in cash and asked him to purchase a bank cheque. Records show that he banked the money, then purchased a bank cheque from the ANZ at Woodville North for $9,990 on 2 July 2012. The bank fee was $10. He said he gave the cheque to the appellant. That cheque was paid into the John Clark trust account and went towards the Woodville North property.
Records show that on the same day Binh Pham purchased another bank cheque in the same amount from BankSA, Woodville. This too was made out to the John Clark trust account. Binh Pham said he did not specifically recall this cheque. Records further show that on 3 July Binh Pham purchased another bank cheque in the sum of $9,990 at the BankSA, Woodville branch, again made out to the John Clark trust account. Three cheques went towards the Woodville North purchase.
In evidence the appellant agreed that the cash for all three cheques was given by her to Binh Pham, although not all at once. She said the money came from jade sales. She said that she would have made three separate trips to Binh Pham’s house with the money, as she did not feel safe carrying more than $10,000. She said she could not remember when she took the bundles of cash to him, but that she told him there was no hurry to return the cheques to her. When she next saw him after each visit she did not enquire whether he had obtained the cheque from the last $10,000, “It just didn’t come up at all”. She did not specify a day by which the cheques were required.
The Judge dealt with this evidence in some detail in conjunction with the other Binh Pham counts. He pointed out various improbabilities in her evidence about her dealings with that young man. He said he did not accept her evidence. He rejected her explanation for not buying the cheques herself – that she was busy. He found that she was using Binh Pham to distance herself from the transactions. He found she chose amounts less than $10,000 advisedly. This was not jade money, he said, but cash entrusted to her by Tu Loan Le from drug trafficking and the appellant knew that this was its source: [324]-[327].
Count 34 related to a bank cheque in the sum of $9,990 which was purchased from the Rundle Mall branch of the Commonwealth Bank in cash. The appellant’s cousin, Dan Tran, gave evidence that she purchased the cheque with cash provided by the appellant. The cheque was payable to the John Clark trust account and went towards the Woodville North property. Dan Tran said that on this day, 7 July 2012, she and the appellant were planning to go to lunch together at Kilkenny. However they ended up near Rundle Mall. At the appellant’s request and while the appellant remained in the car, Dan Tran went to her own bank and bought the cheque the subject of count 34 as well as another cheque (for just under $10,000) which the appellant also wanted.
In her evidence the appellant agreed that they were to have lunch in the city. This was a chance for her to get to the bank. But Dan Tran changed her mind on the way and decided she wished to have meatballs at Kilkenny, rather than eat in the city. The appellant told her that they could get the cheques in the city without finding a parking spot and then go to Kilkenny. Dan Tran said she had Commonwealth Bank accounts and could get the cheques, and so they went there first. Accordingly, the appellant waited in a laneway near the Commonwealth Bank as Dan Tran ran in to get the cheques. The appellant said she was prepared to leave home with an amount as large as $20,000 on this occasion because she had her cousin with her. The appellant was cross-examined about why she was buying bank cheques on a Saturday, when usually those bought by her were bought on weekdays when she was working. She said she could not always go to the bank with a fellow employee.
The Judge rejected the appellant’s evidence that the cash used for these two cheques came from the sale of jade. He observed that this purchase was consistent with what happened on other occasions, that a third party was enlisted to buy a cheque for just under the reportable amount. He noted that if the appellant were able to buy cheques on a Saturday then there was little need to seek the assistance of other people to buy them. He concluded that the money used to buy the cheques was some of Tu Loan Le’s drug trafficking profits and that was well known to the appellant: [500]-[501].
Count 36 related to a bank cheque for $9,990 purchased with cash on 11 July 2012 at the Commonwealth Bank at the Elizabeth Shopping Centre. It was payable to the John Clark trust account and went towards the purchase of the Woodville North property. It was purchased by the witness Hayden Jones who said at that time he worked in the Weeks Group along with the appellant. He said he happened to mention that he was going to the bank and the appellant asked him to purchase a bank cheque for him. She provided him with cash, which she said she had brought from home. He purchased it and gave it to her. The witness Jones was not challenged about this interaction.
The Judge rejected the implicit assertion that this money too came from jade money. He found that the money was from Tu Loan Le’s drug profits and that this was known to the appellant: [507]-[508].
Count 38 concerned a bank cheque for $15,000 payable to the John Clark trust account, which also went towards the Woodville North property. Marc Nguyen gave evidence that he was an old friend of the appellant’s family. He said that in 2012 the appellant gave him a bank cheque, asking him to cash it and then to buy another bank cheque payable to that trust account. Bank records relating to his ANZ account show that $15,010 in cash was deposited into his account on 13 July 2012. Those funds were then used to purchase a bank cheque in the amount of $15,000 payable to the trust account. The appellant accepted that she provided $15,000 in cash to Marc Nguyen. She said she did so at her home. She asked him to purchase a bank cheque and said there was no urgency about it. She agreed that she could have obtained the cheque herself, but said she did not know when she would have opportunity to do so.
The Judge rejected the appellant’s evidence that she might not have opportunity to get to the bank before the settlement of the Woodville North property on 22 August 2012. The Judge also rejected the balance of her evidence about this count. He found that the appellant used Marc Nguyen to avoid triggering a reportable transaction notice in her name. Had the money come from the proceeds of jade sales she would not have been in fear of such a notice.
Count 40 concerned two bank cheques in the sums of $9,988 and $9,940 respectively. The first was from the NAB and second from the ANZ, both at Sefton Park. Each was dated 19 July 2012. The prosecution alleged that these were purchased by the appellant’s brother Andy Tran, with an amount of $19,500 in cash which she provided to him. Both cheques were payable to the John Clark trust account.
The appellant did not dispute that she provided the cash to her brother and asked him to obtain the bank cheques. She said she did not recall whether she asked him to buy two separate cheques. She said that, because she was busy at work, it was more convenient for the cheques to be bought by another. In any event she did not feel comfortable leaving the house with more than $10,000.
The Judge rejected the appellant’s evidence. He noted that notwithstanding her claim that she had no time to go to the bank, the appellant had plenty of time to distribute cash to other people. He found that the appellant was interposing other people and other bank accounts to distance herself from the cash and the purchase of the Woodville North premises: [522].
This rather lengthy summary of those counts of money laundering which are raised by grounds 5 and 6 serves to explain and put in context the Judge’s findings on these counts. As has been seen, with respect to a number of the counts – 1, 5, 7, 9, and 16 – the appellant denied providing money to the relevant witness and instead said that it was the witness who had provided money to her, or, in the instance of count 16, that the payments made by Khang’s Noodles to Susan Nguyen had nothing to do with her. For those counts the first issue was whether it was proved that the appellant did provide the money. If she did, then what was its source? If it were found that the appellant was the immediate source, then could the inference be drawn that Tu Loan Le had originally provided it, and that the appellant knew it was tainted? In relation to the balance of the counts, where the appellant acknowledged providing the cash, the issues were limited to whether it was proved that it was not the appellant’s money, but money from Tu Loan Le’s unlawful activities, and that the appellant knew it was tainted.
This ground is not made out.
Ground 7
Ground 7 is premised on the basis that one or more of grounds 1 to 6A are made out. Since each of those grounds has failed it is unnecessary to deal with ground 7.
Appeal against sentence
I now turn to the application for permission to appeal against sentence. This application was administratively referred to this Court. The appellant fell to be sentenced for 19 counts of money laundering (maximum penalty imprisonment for 20 years), one count of dishonestly dealing with documents (maximum penalty imprisonment for 10 years) and one count of trafficking in a large commercial quantity of methylamphetamine (maximum penalty a fine of $500,000 or imprisonment for life, or both).
In his remarks on sentence the Judge noted that the appellant’s offences were sophisticated and were committed over an extensive period, being from December, 2011 until May 2013. He examined her involvement in the offending as compared with that of Tu Loan Le and noted that the appellant’s participation was “crucial” in dealing with the illegal profits of Le’s activities. His Honour observed that the appellant brought to the operation accounting skills and a “bevy of contacts”. He said the appellant had substantial participation in the money laundering. He said that her money laundering would have continued had it not been for the arrest of the Ta brothers. The sum of $385,000 was laundered and the profits were considerable.
The Judge referred to the appellant’s previous good character and her involvement in the Vietnamese community. However, he noted that her “good character diminished quickly after the first money laundering offence”. He said there had been ample time for the appellant to reflect on her conduct and to withdraw from the operation, but that greed had got the better of her.
The Judge proceeded pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one penalty for the money laundering and dishonestly dealing with a document offences. That penalty was one of nine years imprisonment. For the trafficking offence he also selected a sentence of nine years imprisonment, but reduced it by six months to reflect the time the appellant had already spent in custody and on home detention bail. The two sentences were ordered to be served cumulatively. A pecuniary penalty of $50,000 was also imposed. Therefore the sentence to be served was 17 and a half years imprisonment. The Judge fixed a non-parole period of 11 years and six months.
There are two main complaints about the sentence. First, it is said that the sentence is simply too long, and that argument includes contentions that this was due to the accumulation of individual sentences and the failure to adequately reflect totality. Then, it is said that the Judge had insufficient regard to the parity principle and that the appellant is left with a justifiable sense of grievance when her sentence is compared with that of Tu Loan Le. It was argued that the relevant comparison was between the 10 year “starting point” for Tu Loan Le’s money laundering, trafficking and documents offences. Counsel for the appellant noted that Tu Loan Le’s sentence for those offences was wholly concurrent, it included additional offences with which the appellant was not charged and Tu Loan Le’s “starting point” for money laundering offences was less than that imposed on the appellant for the money laundering and document offences only. Counsel puts that, had the parity principle been correctly applied, the appellant’s total head sentence would have been no more than 10 years.
In respect of the first argument attention is drawn to the structure of the sentence. It is put that, since all offences formed part of a course of conduct, all should have been ordered to be served concurrently. This argument may be disposed of readily. It is trite to say that the way in which sentences are arranged is a matter for the sentencing Judge. What is necessary is that the final sentence is proportionate to the gravity of the total course of conduct. As King CJ said in the Attorney-General v Tichy (1982) 30 SASR 84 at 85:
The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence.
More recently the High Court expressed the principle in Nguyen v The Queen (2016) 256 CLR 656, in the reasons of Bell and Keane JJ at [37]:
The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant’s offending behaviour.
In the reasons of Gageler, Nettle and Gordon JJ, at [64] it was said:
Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.
(Citations omitted)
In my view the way his Honour chose to structure the sentence was open to him. In particular, it was appropriate that the money laundering offences be grouped together in a single sentence under s 18A. The trafficking offence represented a new and different facet of the offending and the order that it run consecutively was justified. However, whether the combination of the length of each sentence and the accumulation of them led to a manifestly excessive sentence is a separate issue.
The appellant also relies on the failure to reduce the sentence by reference to the totality principle. However, totality is not a principle to be invoked routinely: R v B, RWK (2005) 91 SASR 200, and here the Judge fixed one sentence for all the money laundering offences, so that the scope for error in accumulating the sentences was reduced. In any event, again, the question is whether the final sentence is manifestly excessive.
In considering what was the appropriate range of sentences available to the Judge, it is necessary to recall that the maximum penalty represents the worst possible case of that particular type of offending and is a “yardstick” against which the severity of the sentence before the Court can be gauged: Markarian v The Queen (2005) 228 CLR 357 at [30]-[31]. Of course here the appellant was found guilty of 19 counts of money laundering, each of which attracted a maximum penalty of 20 years imprisonment, as well as the other two single offences. Each money laundering offence represented a separate criminal operation, although some could be grouped together, in terms of timing and the persons used to commit the offences.
The Court was told that there are no decisions of this Court dealing with money laundering and drug offending of the order of seriousness of these crimes. It was suggested that decisions involving offences against the Commonwealth money laundering provisions could be of assistance. In R v Ly (2014) 241 A Crim R 192 the New South Wales Court of Criminal Appeal heard an appeal by the Director of Public Prosecutions against a sentence imposed in the District Court. The respondent was charged with one offence against s 400.4(1) of the Criminal Code 1995 (Cth) alleging that between January 2008 and November 2008 she dealt with money that she believed to be the proceeds of crime, the amount being more than $100,000. The maximum penalty for such an offence was 20 years imprisonment or 1200 penalty units ($204,000) or both.
The respondent’s conviction had followed a 20 day trial. The offence comprised a series of frauds committed on the Australian Taxation Office, involving the theft of the identity of 21 taxpayers and the lodging of 24 false income tax returns in their names, resulting in tax refunds sent to the respondent totalling over $350,000. The respondent was originally sentenced to imprisonment for three years and six months with a non-parole period of two years and four months. The Court found that sentence to be manifestly inadequate. It adjudged the respondent’s criminality to be “somewhat above the mid-range of objective seriousness”: [144]. It set aside the original sentence and imposed instead one of imprisonment for eight years with a non-parole period of four years and six months. During the course of its consideration of the matter the Court considered several cases dealing with sentences for broadly similar offending. The brief details of those cases are set out at [53] of the reasons of the Court. In each case considered the amount of money concerned was more than $100,000 and up to $550,000. In those cases starting points of between seven years and 11 years had been either taken by the sentencing judge, or considered to be appropriate by the Court of Criminal Appeal. This can provide some guidance as to the possible range of sentences available here.
Bearing in mind that in the present case the starting point selected by the Judge for the money laundering and dishonest dealing with a document offences was nine years, and remembering that this conduct occupied an extensive period and was only interrupted by the apprehension of the Ta brothers, I cannot say that the appellant’s sentence for these offences, standing alone, was manifestly excessive. It is fair though, to say that such a sentence was probably at the upper end of the available range.
The trafficking offence attracted a maximum penalty of life imprisonment. It involved a very large shipment of drugs and the appellant’s conduct in making available $280,000 of Tu Loan Le’s drug trading profits was critical. Nonetheless, bearing in mind the appellant’s limited role, I think had this crime stood alone it would have been difficult to justify a sentence of nine years imprisonment. While this offence certainly represented a separate criminal incursion, it was closely linked with the appellant’s other activities with Tu Loan Le and the money was being put back into the unlawful business activity, as opposed to being channelled into ostensibly legitimate projects. I consider that, standing alone, a sentence of six years imprisonment before deduction for time in custody and on home detention bail was appropriate.
However, neither of these sentences stood alone. The Judge chose to order that they run consecutively. If that were to be the order, then I consider that the penalty for the trafficking offence should have been reduced, to recognise that it was part of a long and multi-faceted but single course of conduct, involving dealing with tainted monies.
The comparison between the offending of the appellant and Tu Loan Le is not straightforward, because each was convicted of some different offences and in some cases like offending was reflected by differing numbers of counts. No doubt because of her preparedness to plead guilty, Tu Loan Le was able to negotiate a leaner set of charges.
The offences common to both the appellant and Tu Loan Le were first, trafficking a large commercial quantity of methylamphetamine. Tu Loan Le’s offence was more serious because she was the purchaser of the drug and the total purchase price was almost double the amount of funds provided by the appellant. Then, both the appellant and Tu Loan Le pleaded guilty to money laundering offences, although Tu Loan Le’s offences were only six in number, as compared with the appellant’s 19 offences. However, Tu Loan Le’s offences involved monies totalling about $600,000. Each was convicted for one offence of dishonestly dealing with a document. Tu Loan Le pleaded guilty to further offences, namely participating in a criminal organisation, contrary to s 83E of the Criminal Law Consolidation Act (maximum penalty 15 years imprisonment), one separate count of trafficking in methylamphetamine and two counts of trafficking in heroin, all three offences carrying a maximum of 10 years imprisonment.
In sentencing Tu Loan Le a different District Court Judge took a starting point of five years imprisonment for the offence of participating in a criminal organisation. For the other offending he took a starting point of 10 years imprisonment. He ordered that those sentences be cumulative, but then he deducted 30 per cent in recognition of the pleas of guilty, leaving a final head sentence of 10 years and six months. He fixed a non-parole period of seven years. This sentence was described by the Court of Criminal Appeal as merciful: R v Le [2015] SASCFC 152 at [48].
The appellant argues that in comparing the two sentences, the starting point of five years for the criminal organisation offence should be put to one side, since there was no parallel conviction against the appellant, and it comprehended other, uncharged criminal acts. I do not accept that argument. All the offences of both women were committed in the context of multiple offenders playing a part in organised criminal activity. That Tu Loan Le was specifically charged with such an offence is a matter not to be overstated, since the sentence selected for the balance of her offences must have strictly set aside that fact, being one which would otherwise have amounted to a circumstance of aggravation. In addition, as already stated, the appellant faced many more separate offences, even if the total of money involved was not as much as in relation to Tu Loan Le.
It is true that, unlike Tu Loan Le, the appellant had no prior convictions when this course of offending commenced. However, the length of time over which it continued and the entrepreneurial way in which the appellant operated rather diminished any credit she could expect on account of that.
There is a limit to the value of a minute dissection of all the charges faced by each woman. While Tu Loan Le’s sentence was known to the Judge and could provide some general guidance to him, through the weeks of evidence he heard, the Judge must have acquired a profound understanding of the level of criminality involved in the appellant’s offending in all its facets. Since I would reduce the appellant’s sentence for the trafficking offence, both because I consider it to be manifestly excessive and also to reflect that it will be served after the lengthy sentence for money laundering, I do not think it is necessary to do more than ensure that in broad terms the final sentence of the appellant is consistent with that of Tu Loan Le; or to put it differently, that to the extent that there can be a comparison, there is no undue disparity.
I would allow the appeal against sentence and set aside the sentence imposed by the District Court Judge. I would start with a single sentence of nine years imprisonment in relation to the money laundering offences and the dishonest dealing with a document offence. I would take off six months on account of time in custody and on bail. I would impose a sentence of four years for the trafficking offence, cumulative upon the first sentence. In relation to the total head sentence of 12 years and six months I would set a non-parole period of seven years.
Conclusion
For the reasons already given I would dismiss the appeal against conviction.
In relation to the appeal against sentence I would make the following orders:
1grant permission to appeal and allow the appeal;
2set aside the sentence imposed in the District Court;
3in its place impose a single sentence of eight and a half years imprisonment for the money laundering and dishonest dealing with a document offences, and four years imprisonment for the trafficking offence, to be served cumulatively. In relation to the total head sentence of 12 years and six months set a non-parole period of seven years. Impose a pecuniary penalty of $50,000; and
4order that the sentence is to be taken to have commenced on 23 November 2016.
KELLY J: I agree that the appeal against conviction should be dismissed for the reasons given by Vanstone J. I agree that the appeal against sentence should be allowed for the reasons given by Vanstone J and I agree with the orders she proposes.
DOYLE J: In relation to the appeal against conviction, I would dismiss the appeal. I agree with the reasons of Vanstone J, save for one aspect of her Honour’s reasons relating to the evidence of discreditable conduct.
I agree with Vanstone J that the trial judge correctly identified and explained the permissible use of the evidence of discreditable conduct, namely as probative of a series of acts or transactions disclosing a pattern or system of money laundering that was in turn probative of the true character of individual transactions conforming to, or sharing the characteristics of, that pattern or system. I also agree with her Honour that the trial judge’s directions as to the permissible and impermissible uses of that evidence were sufficient to comply with trial judge’s obligations under s 34R(1) of the Evidence Act 1929 (SA).
I thus agree with Vanstone J that it was not necessary in the circumstances of this case for the trial judge to go further than he did, and expressly warn himself against the bare or general propensity reasoning proscribed by s 34P(1) (that is, using the wording of the “impermissible use” identified in that subsection). While the trial judge was obliged under s 34R(1) to identify and explain the uses that “may, and may not” be made of the evidence of discreditable conduct, the extent of this obligation is not to be determined in the abstract, and does not extend to identifying or explaining every conceivable or theoretical line of impermissible reasoning. The nature and extent of the directions required by s 34R(1) will be dictated by the circumstances of the case, and the real issues in the trial.[1] What is necessary will depend upon the forensic issues in the case, and the cases of, and addresses by, the prosecution and defence.[2] The issue is ultimately whether the directions are sufficient to ensure that the fact-finder understood the permissible use of the evidence of discreditable conduct, and that there was no occasion for concern that the evidence of discreditable conduct might be used for an impermissible use.[3]
[1] Perera-Cathcart v The Queen (2017) 91 ALJR 411 at [53], [62], [66]; R v Taheri [2017] SASCFC 92 at [37].
[2] R v Golubovic [2016] SASCFC 144 at [80].
[3] Perera-Cathcart v The Queen (2017) 91 ALJR 411 at [57]-[58], [66].
While a direction that reflects the wording of the impermissible use identified in s 34P(1) will often be required, that will not always be so.[4] In R v Forrest,[5] the absence of such a warning bespoke inadequacy and error because the prosecutor’s address had left open, if not encouraged, bare or general propensity reasoning of the proscribed type, and the trial judge’s directions did not clearly identify the quite limited and particular permissible use of that evidence. Similarly, in R v Golubovic,[6] it was significant that the trial judge did not ever properly identify the permissible use of the evidence of discreditable conduct. By way of contrast, in the present case, the trial judge clearly and accurately described the permissible use that might be made of the evidence of discreditable conduct. The line of reasoning that this permissible use engaged was quite distinct from the general or bare propensity line of reasoning that s 34P(1) proscribes. The former turned upon an overall consideration of the evidence of the charged and uncharged conduct so as to deduce a pattern or system that might assist in characterising individual transactions. It did not employ the sequential reasoning from particular discreditable acts that is the hallmark of the impermissible bare or general propensity reasoning.
[4] Perera-Cathcart v The Queen (2017) 91 ALJR 411 at [52].
[5] R v Forrest (2016) 125 SASR 319 at [44]-[47].
[6] R v Golubovic [2016] SASCFC 144 at [69], [70], [80], [86]-[87].
In circumstances where (i) the trial judge made abundantly clear the permissible use of the evidence of discreditable conduct; (ii) that permissible use engaged a line of reasoning that did not give rise to any risk of, or occasion for, bare or general propensity reasoning; and (iii) the addresses of the parties did not otherwise invite or suggest such reasoning, it was not necessary for the trial judge to go further than the general warning he gave himself against inferring guilt of any particular charge from mere satisfaction that the appellant engaged in the uncharged acts.
However, I would stop short of a conclusion that it would have involved error for the trial judge to have gone further and given himself a direction warning against bare or general propensity reasoning of the type proscribed by s 34P(1); or that this would have involved the trial judge denying himself the permissible use of the evidence of discreditable conduct that justified its admissibility (and cross-admissibility). Even if the permissible use of the evidence of discreditable conduct in this case did rely to some extent upon a particular propensity or disposition,[7] I consider this permissible use was distinct from the bare or general propensity reasoning proscribed by s 34P(1).
[7] See, for example, the discussion in R v Soteriou (2013) 118 SASR 119 at [21]-[31], and the cases referred to therein, of the reliance upon a form of propensity reasoning in cases where there is evidence of an involvement in, or interest in, a particular line of business or trade (in that case, the drug trade).
It is not unusual for a trial judge to warn against general or bare propensity while at the same time directing a jury that it may rely upon some more specific or particular propensity (with the appropriate degree of probative force) that arises on the evidence.[8] While there may be some superficial inconsistency or tension between the two, this can usually be addressed through appropriate direction. Indeed, to the extent that there is a risk of confusion in a particular case between impermissible general propensity reasoning, and permissible reasoning based upon some more specific propensity, the existence of that risk suggests a need for such a direction. If appropriate directions cannot adequately distinguish between, or disentangle, the two, then s 34P(3) will likely operate to render the evidence inadmissible.
[8] HML v The Queen (2008) 235 CLR 334 at [345]-[347].
Here, there was in my view no difficulty in distinguishing between impermissible general propensity reasoning (that is, inferring guilt or a likelihood of guilt from the mere fact of one or more instances of discreditable conduct) and the permissible mode of reasoning (that is, using the fact of a pattern or system apparent from a consideration of the discreditable conduct as a whole to infer the existence of the relevant mental state in respect of particular charged acts). The former involves what is sometimes referred to as simplistic “bad person” reasoning; or reasoning that the defendant is “the sort of person” who might have committed the offence or offences charged regardless of any probative connection between the discreditable conduct and the charged offending. The latter involves reasoning from the existence of a pattern or system of conduct of a particular character revealed by a consideration of the evidence of discreditable conduct as a whole, and then using that as probative of the appellant’s state of mind in the respect of the charged acts that conform to that pattern or system. Indeed, it is the fact that these two modes of reasoning are so conceptually distinct (combined with the fact that there was no real occasion for the sequential reasoning inherent in the former given the way the present case was presented and approached) that in my view meant that proper identification of the latter adequately addressed any risk of the trial judge engaging in the former. But I do not consider it necessary to go as far as concluding that it would have involved error had the trial judge taken the cautious approach of expressly warning against the former.
In relation to the appeal against sentence, I would grant permission to appeal and allow the appeal. I agree with the reasons of Vanstone J, and the fresh sentence she has proposed.
- AGLC
- R v Tran [2017] SASCFC 99
- Case
- [2017] SASCFC 99
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were the admissibility and proper use of evidence of "uncharged acts" or "discreditable conduct" led by the prosecution. This evidence was presented to demonstrate a pattern or system of money laundering engaged in by Ms Tran, thereby proving the character of the charged transactions. The court was required to determine whether the trial judge's directions to the jury regarding the permissible and impermissible uses of this evidence were sufficient under section 34R(1) of the *Evidence Act 1929* (SA). Additionally, the court considered the appeal against the sentence imposed, specifically the grounds of error and disparity.
The Court of Criminal Appeal dismissed the appeal against conviction. The judges agreed that the trial judge had correctly identified and explained the permissible use of the discreditable conduct evidence as proof of a system of money laundering, which in turn was probative of the character of the individual charged transactions. They found the trial judge's directions to be sufficient, noting that the extent of such directions is dictated by the circumstances of the case and the forensic issues, and does not necessitate an exhaustive explanation of every theoretical impermissible use. However, the appeal against sentence was allowed.
The Court of Criminal Appeal set aside the original sentence and imposed a new head sentence of eight and a half years imprisonment for the money laundering and dishonest dealing offences, and four years imprisonment for the trafficking offence, to be served cumulatively, resulting in a total head sentence of 12 years and six months. A non-parole period of seven years was set, and a pecuniary penalty of $50,000 was imposed. The sentence was backdated to commence on 23 November 2016.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: VANSTONE J
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