Chen v Director of Public Prosecutions

Statutory scheme 4On 11 May 2010 the Director of Public Prosecutions (Cth) ("the Director") laid a charge that the appellant "[b]etween about 1 January 2003 and about 30 September 2004 at Sydney in the State of New South Wales, dealt with money that he intended would become an instrument of crime and at the time of the dealing the value of the money or property was $50,000 or more". Such conduct was a contravention of s 400.5(1) of the Criminal Code . That section provides: " 400.5 Dealing in proceeds of crime etc. - money or property worth $50,000 or more (1) A person is guilty of an offence if: (a) the person deals with money or other property; and (b) either: (i) the money or property is, and the person believes it to be, proceeds of crime; or (ii) the person intends that the money or property will become an instrument of crime; and (c) At the time of the dealing, the value of the money and other property is $50,000 or more. Penalty: Imprisonment for 15 years, or 900 penalty units, or both." 5Various parts of this provision involve defined terms. The charge in this case relied on paragraph (1)(b)(ii). Section 400.1(1) contains a definition of "instrument of crime": " instrument of crime : money or other property is an instrument of crime if it used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence)." 6Section 400.1(2) provides, for avoidance of doubt, that a reference to " money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value". There is a further significant definition in s 400.2 (as in force at the time of the conduct the subject of the charge): " 400.2 Meaning of dealing with money or other property (1) For the purposes of this Division a person deals with money or other property if: (a) the person does any of the following: (i) receives, possesses, conceals or disposes of money or other property; (ii) imports money or other property into, or exports money or other property from, Australia; (iii) engages in a banking transaction relating to money or other property; and (b) the money or other property is proceeds of crime, or could become an instrument of crime, in relation to an offence that is a Commonwealth indictable offence or a foreign indictable offence." 7Section 400.2(2) provided a further definition of dealing with money or other property, involving the same conduct as that set out in sub-s (1)(a) but including, in (b), "by means of a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution": s 400.2(2)(b)(ii). (The curious reference to pl 51(xx) has been amended to refer to pl 51(v).) 8Before considering the nature of the offence as presented to the jury, it is necessary to identify more precisely the manner in which the prosecution alleged that the money would become an instrument of crime. That was, primarily, by way of an offence against s 31 of the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act"), which provides: " 31 Offence to conduct transactions so as to avoid reporting requirements (1) A person commits an offence against this section if: (a) the person is a party to 2 or more non-reportable cash transactions; and (b) having regard to: (i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following: ( A) the value of the currency involved in each transaction; (B) the aggregated value of the transactions; (C) the period of time over which the transactions took place; (D) the interval of time between any of the transactions; (E) the locations at which the transactions took place; and (ii) any explanation made by the person as to the manner or form in which the transactions were conducted; it would be reasonable to conclude that the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that: (iii) would not give rise to a significant cash transaction .... ... (3) A person who commits an offence against this section is punishable, upon conviction, by imprisonment for not more than 5 years." 9The term "cash transaction" is defined to mean "a transaction involving the physical transfer of currency from one person to another": s 3(1), " cash transaction ". The term "significant cash transaction" in par (b)(iii) is defined to mean "a cash transaction involving the transfer of currency of not less than $10,000 in value": s 3(1), " significant cash transaction ". The principal object of the Act is defined as being "to facilitate the administration and enforcement of taxation laws": s 4(1). 10Read by itself, s 400.5 appears to require a single "time of the dealing", at which time the value of the money can be identified. However, s 400.12 must be considered in this respect: " 400.12 Combining several contraventions in a single charge (1) A single charge of an offence against a provision of this Division may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Division. (2) If: (a) a single charge is about 2 or more such instances; and (b) the value of the money and other property dealt with is an element of the offence in question; that value is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances."

Particulars of offence 11There were no written particulars provided by the Director, but the case was opened in the following terms to the jury (Tcpt, 31/05/10, p 16): "You will hear evidence, this will be produced largely through documents, that there were between those 2 critical dates 1 January 2003 and 30 September 2004, 150 transactions whereby money was transferred overseas on behalf of the accused and that that 150 transactions came to a total of just over $1 million. Now I say that on behalf of the accused the Crown doesn't say that he personally went to the bank on each of these 150 occasions and presented cash amounts that could be transferred to overseas accounts. Rather the Crown case is that there were 150 occasions where this was done either by him or by other people on his behalf. Of those 150 transactions 142 of them were of an amount less than $10,000 and I will come back to the relevance of that figure of $10,000 later, it probably doesn't sound much of an amount but it is important and I will come back to that to explain why. The total of those 142 transactions came to just less than $1 million - $957,080. Now of those 142 transactions the Crown alleges ... that 13 of these were in fact carried out by the accused himself. In other words, there were 13 occasions on which he personally went to the bank and conducted this transaction leading to money being sent to an overseas account. ... And those transactions in particular are the transactions that are the subject of the charge before you. Those 13 transactions where he himself went to the bank and remitted money in an amount of less $10,000 to go ... overseas." 12The Director did not suggest that the money constituted proceeds of crime. On the contrary, it was fully explained to the jury that the applicant ran an extensive business involving the sale of telephone cards allowing consumers to make cheap international telephone calls: Tcpt, p 15(1). In 2004, the business, which was conducted through two companies controlled by the applicant, failed, leaving the companies insolvent and certain telecommunication carriers as substantial unsecured creditors. 13Adopting the language of ss 4 and 5 of the Criminal Code , counsel for the Director then explained the "physical elements" and "fault elements" of the offence. The first physical element was said to be that "the accused dealt with money": Tcpt, p 19(40). The prosecutor continued: "The definition that deals with money provides that it includes engaging in a banking transaction relating to money or other property." The prosecutor said: "these remissions of money were made overseas and on 13 occasions ... the handwriting goes with the pieces of paper that accompanies those sendings of money overseas was that of the accused": Tcpt, p 20(5). 14The prosecutor then identified the "fault element", namely that "at the time he dealt with the money ... [he] intended that that money would become an instrument of crime": Tcpt, p 20(18)." There was reference to the definition of the phrase "instrument of crime" and the opening proceeded (Tcpt, p 21): "It is enough that the Crown is able to satisfy beyond reasonable doubt that the money was intended by the accused to become an instrument of crime in the sense that it would be used in the commission of an offence. Whilst the prosecution do not need to prove that the accused intended that the money be used in the commission of one particular offence, they need only prove that he intended the money used in the commission of an offence. Obviously if the prosecution can point to a particular offence that the accused did intend to use the money in the commission of, that makes it more straightforward when considering whether or not it can be proven beyond reasonable doubt that he held the necessary intention, which was an intention to use the money in the commission of an offence. The prosecution can and do intend to point to evidence that it is anticipated will be led here that goes to the commission or the intention to commit a particular offence by the accused, through the use of this money.... That particular offence ... is an offence against section 31 of the Financial Transaction Reports Act. ... ... I should say in the alternative bearing in mind the prosecution need not prove that the accused intended that the money be used in the commission of a particular offence, in the alternative the prosecution says you would also be satisfied beyond reasonable doubt that the accused intended that the money be used in the commission of offences again[st] the revenue. In other words, offences related to the non-payment of tax. I will return to that later, but suffice it to say for now that the Crown does [not] need to say what exactly that offence might have been in terms of an offence against the revenue because it doesn't have to prove that the accused intended to commit by the use of that money a particular offence." 15Next, the prosecutor explained the offence created by s 31 of the FTR Act, colloquially referred to as a "structuring offence". The jury were told that the FTR Act required that banks report to the government cash transactions of $10,000 or more and that it was an offence for a person to break a transaction down into amounts of less than $10,000 to avoid the reporting requirements. The prosecutor then returned to the alternative basis and stated (Tcpt, pp 23-24): "As I have said before while the Crown need not prove that he intended that a particular offence be committed with the use of that money, the Crown says may include a taxation offence, such as for instance the intention to dishonestly cause a loss to the Commissioner of Taxation by the failure to declare income. The Crown does not say that is the particular offence that he intended to commit. That is just an example of the type of offence that might arise as an offence against the revenue. 16Finally, the prosecution turned to a further physical element (Tcpt, p 25(11): "The second physical element, and again you will see quite clearly from the indictment, that at the time of the dealing the value of the money or property was $50,000 or more. That's a relatively straightforward matter of calculation. The Crown anticipates that you will hear evidence that those 13 transactions, if you add them all up you come to a sum in the amount of $81,030. In other words, an amount more than $50,000 which is the figure on the indictment."

Nature of offence as charged 17The drafting of these provisions has a superficial simplicity which is belied by any attempt to apply them. As explained by Simpson J in Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 at [15], in relation to the similarly structured s 400.3: "The distinguishing feature between the first and second offence in each pair is temporal: the first is an offence where an indictable offence has already been committed, yielding the money or property as proceeds; the second is an offence where an indictable offence is envisaged or contemplated in the future."

(a) offence in contemplation - FTR Act, s 31 18Where the dealing is a single act, that is no doubt so; where there is a series of acts charged as a single offence the temporal dichotomy becomes difficult to identify. For example, in the present case, the first transaction relied upon, being for an amount of less than $10,000, would not have constituted an offence against s 31 of the FTR Act, because it involved only one non-reportable cash transaction. At that stage, it may have been appropriate to say that the applicant intended the money to become an instrument of crime, at some point in the future. However, there would not have been a contravention of s 400.5 at that stage because the dealing did not involve $50,000 or more. On the other hand, where a single charge is laid in respect of a number of instances of conduct, engaged in at different times, the value of the money is to be calculated, pursuant to s 400.12, at the time of the last transaction: before that, the sum of the values of the money cannot be known. Yet at no time was the money the subject of any particular transaction properly describable as proceeds of a crime committed in the past, because the crime had not been committed until that transaction was complete. 19The key problem in this regard is that the dichotomy identified in Ansari is not readily applied in respect of multiple transactions engaged in over a period of time. Once it is accepted that these provisions, including s 400.5, speak of past offences and future offences respectively, it follows that they do not speak of current offences. The dichotomy is exhaustive because it flows from the language of the statute. 20As the case was opened to the jury (as set out above) it would seem that, had the prosecution been required to particularise the acts constituting the dealing with money for the purposes of s 400.5 and the relevant transactions, for the purposes of s 31 of the FTR Act, the conduct would in each case have been the same. However, s 400.5 does not contemplate that the dealing with money, being the primary physical element of that offence, can itself be the physical element of the "second tier of inchoate crime", to use the language of Simpson J in Ansari at [24]. Referring to the offence under s 400.3 as a "money laundering offence", she noted that the "money laundering offence is, for relevant purposes, committed where a second crime is in contemplation". That case involved a conspiracy to commit a criminal act, her Honour explaining in that context that: "... where the criminal act alleged to be the subject of the agreement is money laundering, the Crown must also prove that the person accused has in contemplation a second crime. That is because money laundering is, by definition, committed where another crime is envisaged - and is not committed unless some other crime is in contemplation (or has been committed)". 21That analysis cannot apply where the money laundering offence and the second tier inchoate crime are one and the same. Despite s 400.12, it is not possible to read the operative provision, in this case s 400.5, as being engaged where there is only one physical element. The fact that the same physical element may give rise to separate crimes does not overcome the problem that s 400.5 requires contemplation of a future crime involving the same money. 22Nor is this analysis undermined by the statement in the Criminal Code that a "physical element ... may be" a result of conduct, or a circumstance in which conduct or a result of conduct occurs: s 4.1(1). Although an offence may be inchoate until a number of steps have been taken, each step is nevertheless a physical element of the completed offence. At least, that approach is open and was the way this case was put to the jury. 23The consequence of this reading of the section is that, as a matter of law, and accepting as proved all the facts relied upon by the prosecution, no offence was committed under s 400.5 in respect of any future offence, if the latter offence were identified by reference to the operation of s 31 of the FTR Act on the same transactions.

(b) offence in contemplation - tax evasion 24It follows that the conviction can be upheld only if there was some other second tier inchoate crime upon which the prosecution could and did rely. As noted above, the alternative basis was said to be some offence relating to the evasion of income tax. The prosecution in Ansari relied upon a similar alternative, described by Simpson J as use of the money "in the commission of a tax evasion offence": at [27]. That alternative was apparently included in the course of the trial: see [54] (Howie J). The sufficiency of a crime so identified was not, however, discussed in Ansari , either in this Court or in the High Court. 25The prosecution asserted that it was entitled to rely upon an unparticularised crime as vaguely expressed as the evasion of tax, in part because such a course was permitted by s 400.13 of the Criminal Code . That section provides: " 400.13 Proof of other offences is not required ... (2) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that money or property will be an instrument of crime, to establish that: (a) an intention or risk that a particular offence will be committed in relation to the money or property; or (b) an intention or risk that a particular person will commit an offence in relation to the money or property." 26For present purposes, the reference to "risk" may be put to one side: that element would be relevant to the lesser offence under s 400.5(2). There is a fault element which the prosecution recognised as having to be proved beyond reasonable doubt for the purposes of s 400.5. In opening, the prosecutor stated, "according to the legislation that creates this offence, intention is defined as where a person means money to become an instrument of crime": Tcpt, p 20(27). He continued: "The phrase 'instrument of crime' is also defined. That might be less clear in terms of every day use but the definition in the legislation that creates this offence provides that money will be an instrument of crime if it is used in this commission of, or used to facilitate the commission of an offence against a law of the Commonwealth that may be dealt with as an indictable offence." 27Having been told so much, the jury needed to know what precisely the prosecution identified as the relevant indictable offence. So far as the jury was aware, the money was all the proceeds of business, being legitimate revenue acquired by the appellant's companies. The first transmission relied upon was dated 6 May 2003, in an amount of $5,000. All the remaining transactions took place, it appears, in the 2003-2004 tax year. The jury was told that the companies defaulted in payment of their creditors in early 2004. There was no evidence to support the view that any of the companies failed to disclose their income to the Commissioner in any particular year or years. Nor was there any evidence that the appellant himself had failed to disclose his true income to the Commissioner in any particular year or years. Nor were the jury told of the circumstances in which a failure to disclose income would constitute an offence, nor whether such an offence was necessarily an indictable offence. 28As already noted, the jury were told that an amount of approximately $1 million had been transmitted to China by means of approximately 142 "structured transactions". Given the inability of the companies to pay their debts by early 2004, an inference may have been available that the appellant was attempting to remove assets from the jurisdiction so as to render the companies incapable of paying tax as assessed. Whether that conduct constituted "tax evasion", and if so if it were an indictable offence, was another matter not explained to the jury. 29The treatment of the alternative intention in the prosecution's opening, stands in stark contrast to the care with which the nature of the structuring offences was explained to the jury. If the jury were to be permitted to rely upon the alternative basis, a similar course should have been undertaken. That is not to require more than the statute requires of the prosecution, reading s 400.13 with the relevant operative provision. First, the proper approach to questions of construction would not readily permit a person to be rendered liable to imprisonment for 15 years (or more, in relation to greater sums) by dealing with money with an intention that it will become an instrument of crime, without some conduct capable of constituting an indictable offence being relied upon. To this end, it is unnecessary to identify a particular offence, either in terms of timing or of individuals involved. So much is clear from s 400.13. On the other hand, an intention that the money will be used in the course of conduct constituting an indictable offence must be properly proved. 30Had the alternative basis been squarely analysed before it was left to the jury, there is a real doubt as to whether it should have been so left. It is sufficient for present purposes to consider whether the matter was left with proper instructions and whether a conviction based on this ground (being the only ground available at law) would be an unreasonable verdict, or one that cannot be supported having regard to the evidence: Criminal Appeal Act 1912 (NSW), s 6(1), first limb. 31It is necessary, therefore, to consider the way in which this issue was left to the jury. His Honour dealt first with the possible crime under the FTR Act: Summing up, 10/06/10, pp 13-15. He dealt with the second alternative more briefly, stating (pp 15-16): "Alternatively the Crown says another crime that can be identified in the conduct of the accused in the making of these overseas transfers was because of the intention to avoid the reporting requirements or avoid having to make a report, to adopt the language of the legislation, the accused's intention was to divert sums of money away from the attention of the Taxation Office in order to avoid payment of income tax for which the accused would have otherwise been liable. Now I am not going to burden you with a detailed exposition of the relevant provisions of the income tax legislation. You can accept that the deliberate hiding of or diversion of funds in a manner which removes them from the scrutiny of the Taxation Office is an offence against the relevant income tax legislation, and, therefore, again if you are satisfied beyond reasonable doubt that this was an intention of the accused in the conduct of these overseas transfers, that would make out the intention ingredient of the offence. I have been at pains to emphasise that alternative because that was given far less attention, for very obvious reasons, in the evidence and in the address of both counsel. Much of their attention was directed at the first of those two, but it is important to keep in mind that the Crown has attempted to make a case on either or both, as the case may be." 32His Honour referred again (at p 19) to the evidence of large sums being transferred by way of remittances to Hong Kong as a basis for concluding "that the intention behind the process was to avoid the reporting requirements of the Commonwealth legislation and therefore the intention to commit an offence, either under that legislation or against the Taxation Revenue Legislation of the Commonwealth". The matter was addressed again at pp 31-33, in largely repetitive terms. His Honour returned to the question in reminding the jury of submissions made by counsel for the accused (pp 34-35): "Another point in this general context which was made by Mr Jamieson [for the accused] was that the ultimate collapse of the two telephone companies, Sun City and General Online, meant that by the end of the 2003/2004 financial year there was no tax issue that might have been in some way connected with the purpose of sending the money overseas in a way which escaped the reporting requirements. Because the companies were in liquidation there was, at that stage, no prospective tax implications to be pursued so that you might therefore think that it would difficult to infer, as the Crown invites you to infer, that when the money was sent overseas in the first place it certainly did not have any illegal intention with regard to income tax associated with it. I would however make the point that what Mr Jamieson had to say about that did direct your attention to what I will call the ultimate outcome of the story, which does not offer you a great deal of assistance when it comes to what you might conclude, by way of inference, the accused had in mind when all the money was being sent because certainly at that stage the companies were still operating, and the ultimate taxation implications were not known." 33This was an inadequate basis for leaving the alternative prospective criminality to the jury. 34When the matter came before the trial judge for sentencing, his Honour referred to the alternative basis of conviction in the following terms (Judgment on sentence, 03/11/10, pp 7-8): "The alternative Crown case was that the other criminal intent was the evasion of and breach of relevant provisions of the income tax legislation which was evidenced by the ultimate return of a very substantial proportion of the funds transmitted overseas in toto for the purpose of the purchase of the family home. When that broader picture was examined it was the Crown case that the jury might also be persuaded beyond reasonable doubt that a further criminal intent accompanying the pattern of transfers overseas was to divert moneys that would otherwise have been subject to income tax but had the ultimate intention of returning for the purpose of the purchase of the family home in Australia. That aspect of the Crown case was more open to doubt, I have to acknowledge, on the evidence than the first alternative and, as Mr Glissan [for the accused] submitted, the jury may well have reached its verdict of guilty without being persuaded beyond reasonable doubt that there was an intention based on that larger body of evidence to subvert the revenue laws of the Commonwealth. There was, for example, the temporal problem, and I am not here raising any matters that were not addressed comprehensively in addresses to the jury. There was what I will call the temporal aspect of the ultimate return of the money to Australia. At the time that the moneys were transferred overseas there was some evidence that their immediate purpose was to establish a financial resource in China for the purpose of the expansion of the telephone card business into that country and that therefore the return of the money to Australia was only an aftermath of the collapse of the telephone card business as a result of which the moneys were no longer needed in China for that purpose. It hardly needs to be said - and I only use this by way of example - that if the jury's assessment of that evidence was to at least raise some reasonable doubt in their mind about the initial purpose of the transfer of the larger sums of money and therefore the absence of any necessary criminal intent at the relevant time that they would not have been persuaded beyond reasonable doubt of the guilt of the accused on that alternative basis. But in my own assessment of the evidence I certainly have no corresponding difficulty in accepting that the jury were persuaded beyond reasonable doubt of the association between the transfer of the sums of money specifically referred to in the indictment and an intended breach of s 31 of the Financial Transaction Reports Act in that more direct and limited sense." 35His Honour proceeded to sentence on the basis that the anticipated criminal activity was the intention to breach s 31 of the FTR Act: Judgment, p 10. 36There are available arguments as to the possible contemporaneous operation of money-laundering and structuring offences, as described by Simpson J. The conceptual framework is, however, complex, if not legally fraught. It raises questions which were not expressly analysed before the jury, nor indeed as to their legal availability, in this Court. They do not need to be addressed, because the case was not left to the jury in these terms. Had it been, the applicant would undoubtedly have had grounds to challenge such directions. The case must be disposed of on the basis of the way the Director particularised the charge and the way the trial judge left it to the jury.

Conclusions 37It is clear from a reading of the addresses by each party, together with the summing up, helpfully summarised by his Honour in the passage from the judgment on sentence extracted above, that the primary basis on which the matter was left to the jury was an intention that the money be an instrument of crime, being a contravention of s 31 of the FTR Act. Not only was that ground at the forefront of the case, but it was clearly made out. Because the primary basis upon which the matter was left to the jury was unavailable in law, the appeal should be upheld. As the relevant ground involves a question of law alone, leave is not required. 38It is unlikely that the jury would also have been satisfied of the alternative, for which the relevant inferences were less readily capable of being drawn, which it did not need to address if the first alternative were accepted and which was treated in the prosecution case as a back-up position. In any event, the failure to particularise the nature of the offence, across a range of possibilities, would have rendered a conviction based on that alternative unsupported by the evidence. 39The conclusion with respect to the operation of s 400.5 in relation to s 31 of the FTR Act arises because of the commonality between the conduct relied on for each offence. Given the range of possible ways in which conduct might constitute dealing in money, and in which one or more offences under s 31 of the FTR Act could be identified, the relevant offences could arguably be particularised in many different ways: Arora v Commonwealth Director of Public Prosecutions [2011] NSWSC 552, at [18]-[20] and expanded upon by her Honour below. However, there is no reason to permit the Director to run a different case at a retrial. Accordingly, the conviction should be set aside and an order for acquittal substituted. 40In these circumstances, it is not necessary to address an additional ground upon which the conviction was challenged, nor to address questions relating to the severity of the sentence. If the fine has been paid, the money must be reimbursed. 41The Court should make the following orders: (1) Allow the appeal and set aside the conviction and sentence entered on 3 November 2010. (2) In lieu thereof, acquit the appellant of the charge laid under s 400.5(1) of the Criminal Code (Cth). (3) Direct that the appellant be reimbursed the amount of the fine, if paid. 42SIMPSON J : I have read in draft the judgments of Basten JA and Garling J. I have come to a different conclusion in respect of the issue that has been determined, which was never articulated as a ground of appeal. My reasons are as follows. They depend substantially upon the construction of various provisions of the Criminal Code (Cth) ("the Code"). 43The relevant parts of the Code commenced on 1 January 1997. Over the years, it has been progressively expanded by the enactment of additional provisions. Chapter 2, which commenced on 15 December 2001, is entitled "General principles of criminal responsibility". It brought with it radical new terminology for traditional concepts of the criminal law. What had formerly been known as the " actus reus " of crime was relabelled "the physical element(s)". What had formerly been known as " mens rea " or " the mental element" was relabelled as "the fault element". 44Since 15 December 2001 these concepts have applied, not only to offences against the Code, but to all offences against laws of the Commonwealth (Code, s 2.2). 45The physical element(s) of an offence may be: "(a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct occurs." (s 4.1(1))" "Conduct" is expansively defined to mean: " ... an act, an omission to perform an act or a state of affairs." (s 4.1(2)) The fault elements for a particular physical element many be:

• intention;
• knowledge;
• recklessness; or
• negligence 46The appellant pleaded not guilty to an indictment presented on behalf of the Commonwealth Director of Public Prosecutions ("the Director") in the following terms: "For that he between about 1 January 2003 and about 30 September 2004 at Sydney in the State of New South Wales dealt with money that he intended would become an instrument of crime and at the time of the dealing the value of the money or property was $50,000 or more." Put very briefly, the Director alleged that, over the period specified in the indictment, the appellant, by himself or an agent, engaged in multiple transactions in which he deposited into bank accounts cash, in sums less than $10,000, for transfer overseas. 47The charge in the indictment is an allegation of the offence shortly known as "money-laundering". Because the total value of the money with which the appellant was alleged to have dealt was $50,000 or more, the offence charged is one of the six created by s 400.5 (part of Div 400) of the Code, and one of 37 created by Div 400 of the Code, which is part of Ch 10 (entitled "National Infrastructure"). Both Part 10.2 (of which Div 400 is part) and Div 400 are entitled "money-laundering". 48In Ansari v R [2007] NSWCCA 204; 70 NSWLR 89, at [10] - [15] I analysed the structure of six of those offences, those created by s 400.3. (The thirty-seventh, created by s 400.9, is of a different kind, of receiving, possessing, concealing, or disposing of or importing into or exporting from Australia, money or property in circumstances in which it would be reasonable to suspect that it is the proceeds of crime. That offence is presently immaterial.) 49The remaining offence-creating sections of Div 400, s 400.3, s 400.4, s 400.5, s 400.6, s 400.7 and s 400.8 are all concerned with offences of money-laundering of the same kind; they vary one from the other only in respect of the value of the money or property involved. They are precisely parallel to the offences created by s 400.3. Assuming that my analysis in Ansari was correct, it applies equally to s 400.5. 50Within each of these offence-creating sections are six separate offences. Three are offences of dealing in money or property to the requisite value that is the proceeds of crime (ie crime already committed). Three are offences of dealing in money or property to the requisite value that is intended to, or as to which there is a risk that it will, become an instrument of crime (ie crime to be committed in future). Within each trio, the offences vary one from the other in respect of the mental state of the offender (ie the fault element) - in descending order of gravity, intention, recklessness, and negligence. 51This is fully explained in [11] and [12] of Ansari , and does not need repetition. 52For the purposes of this appeal, the relevant provisions of the Code are to be found in s 400.1, s 400.2, s 400.5, s 400.12 and s 400.13. They are as follows: " 400.1 ... instrument of crime : money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence). 400.2 Meaning of dealing with money or other property (1) For the purposes of this Division a person "deals with money or other property" if:

Amendments 15 November 2012 - Reference to 2010 added to second last sentence. Amended paragraphs: 52 15 November 2012 - References to s 400.1 changed to s 400.2 Amended paragraphs: 55 15 November 2012 - References to s 4.2 changed to s 4.1 Amended paragraphs: 60 28 August 2013 - "HCA" inserted after "[1985]" Amended paragraphs: 61 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2013