R v Tran

Case [2017] SASCFC 99

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…

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R v Tran [2017] SASCFC 99
Case
[2017] SASCFC 99
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, Court of Criminal Appeal, heard an appeal by Ms Tran against her convictions and sentence for money laundering and trafficking methylamphetamine. The prosecution's case was that Ms Tran acted in league with another individual, Tu Loan Le, to launder the proceeds of drug transactions through property purchases and a noodle business. Ms Tran was convicted on numerous money laundering counts and one count of trafficking a large commercial quantity of methylamphetamine. She also sought leave to appeal her sentence, arguing a lack of parity with the sentence imposed on Ms Le.

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

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J
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; and4order 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].

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

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