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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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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