R v Zhang

[2023] NSWDC 427

District Court

New South Wales

Medium Neutral Citation:

R v Zhang [2023] NSWDC 427

Hearing dates:

28 September 2023

Date of orders:

28 September 2023

Decision date:

28 September 2023

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

See [14]

Catchwords:

CRIME – s 400.9(1AB) – money laundering – elements of offence – “proceeds of indictable crime” – alternative routes of prosecution

Legislation Cited:

Crimes Act 1900 (NSW), s 193C(1)

Criminal Code Act 1995 (Cth) ss 400.1, 400.9(1), 400.9(1AB), 400.9(2)

Cases Cited:

LinvR [2015] NSWCCA 204

XuevR [2021] NSWCCA 270

Category:

Procedural rulings

Parties:

Rex (Crown)
Liang Zhang (Accused)

Representation:

Counsel:
Mr Searson (Crown)
Mr Thomas (Accused)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
International Lawyers Co-operative (Accused)

File Number(s):

2022/00122559

Judgment EX TEMPORE

Judgment on Voir Dire 5

1. Pursuant to indictment, the Crown proceeds against the accused on the following charge: between 17 January 2022 and 28 April 2022, in Sydney and elsewhere in the State of New South Wales, did deal with money, it being reasonable to suspect the money was proceeds of indictable crime and at the time of dealing, the value of the money was $1,000,000 or more. The provision upon which this charge arises and is prosecuted is s 400.9(1AB) Criminal Code Act 1995 (Cth) (“Criminal Code”).

2. The issue for determination in this voir dire is discrete. It is whether the Crown is required to prove an element of the offence expressed in the terms “proceeds of indictable crime”. That question on consideration of the statute arises from the use of reference to “indictable” crime both in the provision prosecuted and in s 400.9(2) of the Criminal Code. s 400.9(1AB) of the Criminal Code provides as follows:

“(1AB) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

(c) at the time of the dealing, the value of the money or other property is $1,000,000 or more.”

3. s 400.9(2) of the Criminal Code commences with these words:

“For the purposes of this section, it is taken to be reasonable to suspect that money or other property is proceeds of indictable crime if:”

4. Following those words are several sub subsections providing for instances of what I might broadly describe as conduct. In this case, the Crown proceeds under s 400(2)(c) of the Criminal Code. That conduct is in the following terms:

“the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure over a reasonable period within which the conduct occurs.”

5. It is common ground that I am bound by two decisions of the Court of Criminal Appeal. Voir Dire 5 arises following my offering of my preliminary views in relation to the import of those two decisions. The two decisions are Lin v R [2015] NSWCCA 204