Yacoub v The Queen - [2021] NSWCCA 166

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Yacoub v R [2021] NSWCCA 166
Hearing dates: 12 July 2021
Date of orders: 19 July 2021
Decision date: 19 July 2021
Before: Basten JA at [1];
Walton J at [46];
Adamson J at [47]
Decision:
(1)   With respect to the application for leave to appeal against the conviction:
(a)   grant the applicant an extension of time to file the application to 7 January 2021;
(b) refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
(2)   With respect to the application for leave to appeal against the sentence:
(a)   grant the applicant an extension of time to file the application to 7 May 2021;
(b)   grant the applicant leave to appeal from the sentence imposed on him in the District Court on 8 May 2020;
(c)   dismiss the appeal.

Catchwords:
CRIME – conviction appeal – jury direction – burden of proof – dealing with proceeds of crime – “reasonable grounds to suspect” – accused’s defence that no reasonable grounds – disbelieving accused insufficient to discharge prosecution burden – whether need for Liberato direction – direction given as sought – leave required under Criminal Appeal Rules
SENTENCING – appeal – dealing with proceeds of crime – purpose identified as money laundering – whether judge referring to different offence – whether inflation of objective criminality – whether De Simoni error

Legislation Cited:
Crimes Act 1900 (NSW), ss 193A, 193B, 193C, Pt 4AC
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
LN v R [2020] NSWCCA 131
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31

Category: Principal judgment
Parties: Simon Yacoub (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr G D Wendler (Applicant)
Ms G Wright (Respondent)
Solicitors:
Stephen Modder (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/65291
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

08 May 2020

Before:

Townsden DCJ

File Number(s):

2017/65291

Judgment

BASTEN JA: On 1 March 2017 the applicant, Simon Yacoub, was apprehended by police whilst in possession of $499,850 in cash. He was charged with one count of dealing with property valued at more than $100,000, there being reasonable grounds to suspect that the property was the proceeds of crime: Crimes Act 1900 (NSW), s 193C(1). The offence carried a maximum penalty of imprisonment for 5 years.
On 4 November 2019 he was arraigned before Judge Townsden and a jury on an indictment jointly with his brother Bourack Raad. On 13 November 2019 the jury returned verdicts of guilty in respect of each. On 8 May 2020 the applicant was convicted and sentenced to imprisonment for 3 years with a non-parole period of 2 years and 3 months. On 7 January 2021 the applicant filed an application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yacoub v The Queen

Details

AGLC: Yacoub v The Queen [2021] NSWCCA 166
Case: [2021] NSWCCA 166
Decision Date: 19 July 2021

CaseChat Overview and Summary

In the case of Yacoub v The Queen, the appellant, a defendant convicted of dealing with the proceeds of crime, appealed against his conviction and sentence. The central dispute revolved around the adequacy of the jury direction provided by the trial judge concerning the burden of proof and whether the prosecution had discharged its obligation to prove beyond reasonable doubt that the accused had no reasonable grounds to suspect the funds he dealt with were proceeds of crime. The appeal was heard by the High Court of Australia.

The primary legal issue before the court was whether the trial judge’s direction to the jury was sufficient to address the burden of proof required for a conviction under the relevant statute. Specifically, the court had to determine whether it was enough for the jury to disbelieve the accused's claim that he had no reasonable grounds to suspect the funds were proceeds of crime, or whether there was a need for a Liberato direction that required the jury to be satisfied that the accused’s belief was unreasonable. The court also had to consider whether the trial judge inadvertently referred to a different offence when discussing the objective criminality of the act, potentially inflating the seriousness of the offence.

The court found that the jury direction was adequate as it aligned with the requirement that the prosecution must prove beyond reasonable doubt that the accused had no reasonable grounds to suspect the funds were proceeds of crime. The court emphasised that disbelieving the accused's assertion was sufficient to discharge the prosecution burden. Regarding the sentencing appeal, the court held that the trial judge had not inflated the objective criminality by referring to money laundering, and there was no De Simoni error. The court concluded that the trial judge's remarks did not lead to an improper assessment of the seriousness of the offence.

The final orders of the court were that the appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The conviction and sentence of the appellant were affirmed.

Orders