Criminal law: December 2021

Xuev R [2021] NSWCCA 270

Proceeds reasonably suspected to be proceeds of crime – no requirement to particularise serious offence

In this decision, the Court of Criminal Appeal (‘CCA’) has held that when prosecuting an offence of dealing with property that there are reasonable grounds to suspect are proceeds of crime, the Crown can rely upon a non-specific ‘serious offence’ as the source of the proceeds. This is to be contrasted with the other ‘deal with proceeds of crime’ offences in both the NSW and Commonwealth regimes (variously requiring knowledge, intention, or recklessness) which do require the Crown to specify a class of indictable offence from which the proceeds were derived.

The applicant was convicted after a judge-alone trial of several counts of dealing with property (valued at $100,000 or more) which there are reasonable grounds to suspect are proceeds of crime. The applicant was in China when most of the offending occurred. The case against him was largely based on the evidence of a co-conspirator to the effect that the applicant asked him to collect amounts ranging between $158,000 and $700,000 from other people, then transfer that money to the applicant’s account. Relevantly to this summary, the applicant appealed on grounds including that the trial judge misdirected herself that the Crown could allege that the proceeds came from a non-specific ‘serious offence’ or offences.

At issue is the offence of dealing with property reasonably suspected to be proceeds of crime (Crimes Act 1900 (NSW), s 193C). That offence is indictable (in this case it was in the District Court), but it is more commonly seen in the Local Court, often as a backup to a larceny or robbery. The provision requires that a person ‘deals’ with property (where ‘dealing’ is defined very broadly) which there are reasonable grounds to suspect are ‘proceeds of crime’. ‘Proceeds of crime’ basically means property that came from a ‘serious offence’, and ‘serious offence’, in turn, is relevantly defined as including offences which are capable of being dealt with on indictment. In other words: are there reasonable grounds to suspect that the property came from an indictable offence? In 2016, this NSW offence provision was amended to bring it into line with a Commonwealth provision (Criminal Code (Cth), s 400.9). Those amendments made the offence indictable, set different maximum penalties based on the value of the property dealt with, and also provided for a list of circumstances under which it will be reasonable to suspect that the property is proceeds of crime.

There is previous authority, in the context of the Commonwealth version of this offence, looking at the question of whether the Crown can allege a non-specific ‘serious offence’ (Lin v R [2015] NSWCCA 204 (‘Lin’)). The effect of Lin was that, in the Commonwealth context, the Crown need not prove the ‘predicate’ offence – in other words, a non-specific allegation of an indictable offence or offences will do.

The Court here (N Adams J, with whom Beech-Jones CJ at CL and R A Hulme J agreed) considered that the decision in Lin answered the question in this case (at [183] and [186]) – which is to say, Lin decided that it was not necessary to particularise the indictable offence(s) from which the property was derived. The Commonwealth and State offences which allow the Crown to particularise ‘reasonable suspicion’ are distinguishable from the other offences of ‘dealing with proceeds of crime’, in that those other offences variously require knowledge, intention, or recklessness (at [184]-[185]). Those offences do require particularisation of a particular class of indictable offence from which the property is alleged to have been derived (at [195]).

The applicant had sought to distinguish the authority of Lin, but the Court did not accept that argument. The Commonwealth offence and s 193C are relevantly similar in their terms (at [188]), and there is no effective difference insofar as the elements of the offences are concerned (at [194]). It is apparent from the legislative history that the intention of the 2016 amendments was that s 193C of the Crimes Act would reflect s 400.9 of the Criminal Code (at [193]). Moreover, an argument that Lin was plainly wrong and should not be followed was similarly rejected (at [197]).

The appellant also failed on his other grounds of appeal, so that the appeal was dismissed.