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Key decisions

  • Xue v R [2021] NSWCCA 270
  • Ah Keni v R [2021] NSWCCA 263

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.

Ah Keniv R [2021] NSWCCA 263

Accessory after the fact – active steps necessary – silence insufficient

In this decision, the CCA has found that in order to be guilty of being an accessory after the fact, an offender has to take active steps to assist the principal offenders. It will not be enough to simply fail to report the offence to the police – although silence might sometimes be relevant to objective seriousness, provided it occurs in the context of taking active steps to assist.

The appellant was convicted of being an accessory after the fact to murder. The deceased (a solicitor) was shot and killed whilst sitting at a Bankstown café. The appellant’s husband was a principal in the murder, in that he directly assisted the shooter commit the offence: he conducted surveillance of the location to check that the deceased was there, he gave the shooter a jacket, and after the offence he drove a getaway van. The appellant was in the van when it was used for surveillance before the offence and when it was driven away after the offence, but there was no allegation that she knew about the offence before or during its commission.

The sentencing judge found that she knew by no later than the following day that her husband and the shooter had been the perpetrators of the offence (as well as the identity of the shooter). With that knowledge, over the course of about six weeks she then took steps to assist the principal offenders, including: going back to check the scene of the crime for any CCTV cameras; making arrangements to move to New Zealand with her husband and their family; transferring ownership and registration of the van (which was in her name at the time of the offence) to conceal its use on the day of the murder; changing her name and her husband’s name in New Zealand; agreeing with her husband that the shooter’s legal fees would be paid for and his family looked after; and giving false and misleading information in an interview following her arrest.

Relevantly, in considering the extent to which the appellant’s actions impeded the investigation, the sentencing judge found the most significant factor was that the appellant did not go to police at an early stage and provide assistance, and she lied in her police interview after arrest.

The appellant appealed on grounds including that the sentencing judge erred in finding the appellant’s failure to go to the police at an early stage and provide assistance was relevant to the objective seriousness of the offence. The CCA here consisted of Bathurst CJ, with whom Simpson AJA and Bellew J agreed (with Simpson AJA offering a very significant short observation as part of her agreement).

An offence of being an accessory after the fact can be contrasted with the offence of ‘concealing a serious indictable offence’ (found in Crimes Act 1900, s 316). The former involves active assistance, whereas the latter involves failing to inform the authorities; authority emphasises that being an accessory after the fact requires the taking of active steps to assist the principal offender (at [76]). Silence may be relevant to objective seriousness where an offender remains silent as to the offence whilst providing active assistance, but silence in isolation cannot constitute the offence (at [80]). In one decision (R v Waters [1999] NSWSC 893) Simpson J had stated that accessorial liability could be constituted by non-disclosure of an offence, but Bathurst CJ’s judgment considered that conclusion was wrong. Having been the author of the judgment in the earlier decision, Simpson AJA was also a judge in this case. Perhaps unusually, in addition to concurring with the Chief Justice, her Honour confirmed here that her conclusion in Waters was wrong (at [128]).

In this case, the offence as stated in the indictment was to receive, harbour, maintain and assist the principal offenders. That required taking active steps, and a mere failure to report the offence does not fall within the description (at [85]). That said, silence may be taken into account in assessing objective seriousness, when the silence is associated with acts of active assistance. Further, silence when it has the propensity to mislead the investigator may constitute the offence, provided the other elements are made out. But a mere failure to report which does not occur in the context of giving such assistance does not make out the offence (at [86]). In this case, despite counsel’s concession at first instance, it was not appropriate for the sentencing judge to take into account that the appellant did not go to the police at an early stage and provide assistance; such failure does not hinder an investigation and render a person liable as an accessory (at [87]).

Accordingly, this ground of appeal was made out (the others failed) and the appellant was resentenced to 2 years and 1 month, with a non-parole period of 1 year and 3 months.

Thomas Spohr
is a solicitor, Legal Aid NSW and a member of the Law Society of NSW Criminal Law and Ethics Committees.