Robert CHIBWE v Regina

Court of Criminal Appeal (NSW)|2011-08-11|Before: Allsop P, Latham J, Rothman J

Judgment 1ALLSOP P: I agree with Rothman J 2LATHAM J: I agree with Rothman J 3ROTHMAN J: Robert Chibwe was charged with recklessly dealing with the proceeds of crime worth over $100,000, contrary to section 400.4 (2) of the Criminal Code Act 1995 (Cth) . A jury convicted him after a trial of over two weeks conducted before Ainslie-Wallace DCJ (as she then was). Her Honour sentenced Mr Chibwe to a term of imprisonment of two years and six months, to be released on recognisance after one year and six months, thus requiring him to be of good behaviour for a further 12 month period. The recognisance period commenced on 6 August 2010 and the overall sentence concluded on 5 August 2011. 4The appeal was heard after the sentence had been concluded, because the first time that the matter was listed for hearing, Mr Chibwe sought and obtained an adjournment and the notice of appeal had not been filed until 28 January 2011. 5Mr Chibwe appeals the conviction, but not the sentence. The grounds of appeal are: "1. The guilty verdict of the jury was marred by prejudices, and bias; 2. The credibility of the jury was tarnished, when the trial judge allowed a juror to study who declared after five days into the trial and voir dire, that he works in the bank; 3. Racial slurs and homophobia were prevalent throughout the trial; 4. The jury relied mostly on circumstantial and coincidental evidence to arrive at their verdict. Thus could not have arrived at their verdict beyond reasonable doubts (sic)." 6In order to convict Mr Chibwe, the Crown needed to prove beyond reasonable doubt that: Mr Chibwe dealt with money or property of an amount greater than $100,000; the money or property was proceeds of crime; and at the time that Mr Chibwe dealt with the money or property, he was reckless as to whether the money or property was proceeds of crime. The offence is a serious one for which the maximum penalty is 10 years' imprisonment or a fine of $66,000 or both. 7Mr Chibwe was represented at the trial by experienced counsel. The Crown prosecutor, also a person experienced in the criminal law, conducted the matter fairly and appropriately. I make the foregoing comment because of the nature of some of the grounds of appeal. Her Honour's conduct of the trial and her summing up were impeccable and beyond criticism. Certainly, Mr Chibwe makes no criticism of her Honour.

Unreasonable verdict 8At least one of the grounds of appeal raises the unreasonableness of the verdict. It is necessary to deal briefly with the principles to be applied in such circumstances. 9The approach to be taken by an intermediate court of appeal where the unreasonableness of the verdict has been raised, has been dealt with by the High Court of Australia on a number of occasions. This Court is required to assess the evidence independently and to consider its sufficiency, quality and nature and if, having so considered the evidence, it experiences a doubt as to the guilt of the appellant, it is a doubt which, generally, a jury also ought to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving such a doubt that the Court may conclude that no miscarriage of justice has occurred: M v R [1994] HCA 63; (1994) 181 CLR 487 . 10This approach was considered in SKA v R [2011] HCA 13. Just prior to the judgment of the High Court in SKA , this Court, in Brendon Singh v R [ 2011] NSWCCA 100, had occasion to deal with the test expressed by the High Court in both M and MFA v R [2002] HCA 53; (2002) 213 CLR 606 . After reciting passages from the joint judgment in M , this Court said: "[10] The focus must be on the unreasonableness of the verdict, and the term "unsafe and unsatisfactory", although sometimes still used, ought not be. Further, whether the verdict was "open to the jury" does not itself, answer the question. The focus of the examination is whether the jury ought to have experienced a reasonable doubt, which is answered by whether the appellate court has a reasonable doubt that cannot be answered by paying regard to the jury's advantage in seeing and hearing the evidence. See also R v Nguyen [2010] HCA 38 ; (2010) 85 ALJR 8. [11] Concentration on the expression as to whether it was open to the jury to be satisfied beyond reasonable doubt may lead to some confusion. The focus of the enquiry is not whether there is evidence upon which a jury could have convicted (ie whether there was evidence of each element of the offence),but whether it was open to be satisfied beyond reasonable doubt (ie whether, on all of the evidence, it was open to be satisfied that there was no reasonable hypothesis consistent with innocence)." 11In SKA , the High Court unanimously confirmed the approach in M and MFA , with which the foregoing approach is consistent, even though the judges of the High Court differed in the application of those principles.

Evidence at the Trial 12The offence was said to have been committed on 27 April 2006. The Crown case was relatively simple. Mr Darren Cranshaw and Mr Jonathan Marven were said to be members of an Identity Crime Syndicate. 13On 27 April 2006, Messrs Cranshaw and Marven fraudulently transferred $315,000 from the bank account of a company in the name of Boomdell Pty Ltd. The money was transferred from the Boomdell account to a bank account controlled by Mr Chibwe, in the name of "Robert Chibwe t/a Auscam Investments". 14Mr Cranshaw committed the fraud by attending the Martin Place branch of the Westpac Bank and falsely assuming the identity of the account holder, Mr William Sheridan. Mr Cranshaw then electronically transferred the money from the Boomdell bank account to Mr Chibwe's account referred to above. 15Shortly after the funds arrived into Mr Chibwe's bank account, he transferred $312,808.97, in two transactions, at two separate Westpac branches, to a bank account controlled by a money exchange business called City Forex (Aust) Pty Ltd. A co-accused, Cyril Ihem eje, then went to City Forex and purchased US $200,000 and €25,000. Mr Ihemeje then provided a proportion of the foreign currency to Mrs Cranshaw and Marven. 16The foregoing was not in issue at trial. Mr Chibwe was an associate of Mr Ihemeje, who operated a money exchange business in the city, called CC Money Exchange. 17On 30 March 2006, Mr Chibwe registered a business name, "Auscam Investments", and utilised that name to open a bank account with Westpac. On the same day, Mr Chibwe opened another bank account with Westpac. On 10 April 2006, Mr Chibwe opened a further bank account with St George Bank and another with ANZ. 18On 20 April 2006, $80,000 was dishonestly appropriated from a bank account in the name of Edwin Shirley Staging Pty Ltd and transferred into Mr Chibwe's account at St George Bank. St George Bank was notified of the fraud by the police and reversed the transaction. 19The fraud syndicate, who had been provided with Mr Chibwe's bank account details and informed that the $80,000 had not arrived into his account, requested his statement, which confirmed that the transfer had been unsuccessful. Mr Ihemeje called Mr Chibwe on seven occasions during the course of the day. 20On 27 April 2006, the fraudsters dishonestly appropriated $315,000 from the Boomdell Pty Ltd bank account. This amount was transferred to the account of Mr Chibwe at Westpac. It was not alleged that Mr Chibwe participated in the fraudulent removal of the funds from Boomdell. 21Mr Chibwe admitted that he had dealt with the funds. The only real issue was his state of mind on 27 April 2006 when he transferred the amounts referred to above. 22The Crown case was that Mr Chibwe received a commission to deal with the funds and was reckless as to the fact that the money or property was the proceeds of crime. 23Documents, being Western Union records, disclose that Mr Chibwe sent $31,555 in international money transfers to various overseas locations between 17 April 2006 and 8 August 2006. During that time, Mr Chibwe was receiving social security payments. 24As already stated, the evidence disclosed that Mr Chibwe was an associate of Mr Ihemeje, who operated a money exchange business in the City called CC Money Exchange. 25Messrs Cranshaw and Marven were members of an identity crime syndicate that fraudulently took money from financial institutions. Both admitted the fraud on financial institutions that gave rise to the money transferred by Mr Chibwe. A member of the identity crime syndicate known as "Fung" provided Mr Cranshaw with instructions and identification in the name of William Sheridan. Mr Cranshaw was instructed to use his false identification to assume the identity of Mr Sheridan and falsely transfer funds from the Boomdell bank account into Mr Chibwe's bank account. 26At 12:11 pm on 27 April 2006, Mr Cranshaw entered the Martin Place branch of Westpac and fraudulently transferred the aforesaid $315,000. 27At 1:53 pm Mr Chibwe attended the Westpac Bank branch on the corner of Market Street and Clarence Street and transferred $270,270.27 from his bank account to the account in the name of City Forex. 28At 2:27 pm, Mr Chibwe went to the Surry Hills branch of the Westpac Bank and transferred $42,538.70 from his account to the City Forex account. This transaction is captured on CCTV foot age. Mr Ihemeje was seen in the vicinity and entering the bank at about the same time. 29Later that day, Mr Ihemeje attended the offices of City Forex and purchased US $200,000 and €25,000. 30Mr Ihemeje retained 40 percent of the foreign currency as commiss ion and provided the balance to members of the identity crime syndicate. 31As was required under law, Mr Ihemeje submitted a cash transactions report to AUSTRAC. That report falsely claimed that Mr Ihemeje had received $312,809 in cash from a person by the name of Maxwell Howard in exchange for the full amount of US dollars and euros. Maxwell Howard is a false name. 32Mr Marven received about 5 percent of the foreign currency and handed over to Mr Cranshaw US $28,000. 33The Crown case was, as revealed above, simple. It consisted of surveillance evidence showing Mr Chibwe transferring funds. Technical evidence was also adduced which traced the transfers to and from Mr Chibwe's accounts and to and from those consciously engaged in the fraud and the victims thereof. Those engaged in the fraud gave evidence disclosing the means by which the fraud was perpetrated and Mr Chibwe's role in transferring moneys. 34Mr Chibwe complains that the jury ought not to have believed those involved in the fraud. Her Honour warned the jury in appropriate terms as to the approach to be taken to the evidence of these offenders. Moreover, the Crown does not suggest that Mr Chibwe was knowingly concerned in the fraud. Were the Crown to have done that, far more serious offences would have been involved. Instead, the Crown alleged a reckless involvement, which does not require that Mr Chibwe knew of the fraud. 35M r Chibwe's case was straightforward. Mr Chibwe arrived in Australia from Zambia in 2003 and sought asylum in Australia because of his sexuality. He was granted permanent residency. He could not look for work until the end of 2005. 36In Zambia, Mr Chibwe ran a business as a tourist operator. His intentions were to set up a similar business in Australia. Mr Chibwe maintained that he did not know and did not suspect that the money with which he was dealing was proceeds of crime. 37Mr Chibwe said that he wanted to set up a business in Australia to sell mobile phones. It is for that reason, he says, that he registered the name "Auscam Investments". He estimated that the establishment cost of the business was approximately $45,000. 38Mr Chibwe also said that he had met Mr Ihemeje at the latter's business premises in early 2006. They became good friends described by Mr Chibwe as "like brothers". 39Mr Chibwe regularly spent time at Mr Ihemeje's office, CC Money Exchange, where he was introduced to a builder by the name of "Maxwell Howard" ("Max"). "Max" expressed the view that he was interested in providing the start-up capital of $45,000 to Mr Chibwe, as a result of which Mr Chibwe provided Mr "Howard" with his banking account details. 40On 27 April 2006, Mr Ihemeje rang Mr Chibwe and told him that "Max" was at CC Money Exchange and wanted to see him. Mr Chibwe went to CC Money Exchange, met "Max", who told him he had found the money for his business. 41Mr Chibwe and "Max" then went to Westpac Haymarket branch and Mr Chibwe used the ATM to check if the funds had arrived. Mr Chibwe says he was surprised to find $315,000 in his account. "Max" told Mr Chibwe that he was prepared to invest all of that money in Mr Chibwe's business on certain conditions. The conditions were unacceptable to Mr Chibwe and he decided to return the money. 42Mr Chibwe and "Max" went to the Westpac Bank branch at the corner of Market Street and Clarence Street. "Max" gave Mr Chibwe a piece of paper with instructions as to the amount of money ($270,270.27) that he would be required to transfer and the bank account into which it was to be transferred. Mr Chibwe carried out the instructions he was given, while "Max" waited outside the bank. 43After that Mr Chibwe and "Max" went to the Surry Hills branch of Westpac and "Max" gave him another piece of paper with similar instructions, this time to transfer $42,538.70 to another account. Again, Mr Chibwe carried out the instructions given. An amount of $2,191.03 from the original $315,000 remained in Mr Chibwe's bank account. 44Of that remaining amount, Mr Chibwe claims that he gave $800 to Mr Ihemeje. 45As a result of the foregoing, there is still an amount of $31,555, which Mr Chibwe transferred overseas through Western Union between 17 April 2006 and 8 August 2006, which remains unresolved. In the proceedings, Mr Chibwe claimed that a significant proportion of those funds were derived from money he earned in exchange for sexual favours. In short, Mr Chibwe maintained that he had been paid the aforesaid sum as a prostitute. 46The foregoing is an accurate summary of the transcript of the proceedings before the court below. It is taken largely (but not entirely) from the summary of proceedings provided by the Crown on the appeal. That summary was not the subject of challenge and Mr Chibwe accepted the accuracy of the summary. Having read the transcript, so do I, but I have added some remarks to clarify the nature of the evidence adduced. Because the summary was not disputed, it is appropriate, to the extent possible, to repeat it, or, at least, to rely on it as an agreed summary. Whether or not it was agreed, it is an accurate summary.

Ground 1: Miscarriage As a Result of Prejudice and Bias

Ground 3: Racial Slurs and Homophobia 47I will deal with grounds 1 and 3 together. 48During the course of the trial one of the witnesses, called by the Crown, described Mr Chibwe as a "fat black man" and as a "black guy". This was Mr Marven's evidence. It was part of the recital of a telephone conversation with a co-offender Mr Dowling. Part of the conversation included the description of Mr Chibwe as "a black guy", "big, big guy and fat". 49Mr Marven was overseeing the withdrawal of money and was describing to one of his cohorts the movement of Mr Chibwe. The phone call was played in Court. Mr Marven made clear that he did not know Mr Chibwe's name, and knew him only as a black guy and by the descriptions already given. 50The colour of Mr Chibwe's skin was a distinguishing feature in his identification. The term "black" was not used insultingly. Even if it were, in the context of the trial as a whole, it could not be said that the description given to Mr Chibwe during the course of this evidence occasioned either prejudice or bias. Nor were the descriptions used as a racial slur. 51The allegation of "homophobia" to which Mr Chibwe refers in his written submissions is a reference to what Mr Chibwe perceived was the "squeamishness" of the jury in relation to his sexual preferences and the amount of money that he could earn providing sexual services to other people. 52The evidence as to Mr Chibwe's sexual preferences is evidence adduced in Mr Chibwe's case, not by the Crown. There is no evidence, fresh or otherwise, to suggest that the jury reacted in a way which was visible or audible. No evidence is adduced from Mr Chibwe's solicitor or counsel at the trial as to the reaction of the jury during the trial. 53At best, Mr Chibwe's assertions are suspicions with no basis in fact. There is no basis upon which this Court could find that the race or sexual preference of Mr Chibwe was a factor affecting the jury during the course of its deliberations or during the trial itself. These two grounds are rejected.

Ground 2: A Juror Worked in the Bank 54On Friday 27 March 2009, evidence was adduced relating to the role of Group Security of the Commonwealth Bank. An employee of the Commonwealth Bank had processed a transaction of some $80,000 for a co-offender of Mr Chibwe, which unbeknown to the employee was fraudulent. The employee had received a telephone call from Commonwealth Bank Group Security, after which the employee had reversed the relevant transaction. When this evidence was adduced at trial, a juror indicated, through the sheriff's office, that he worked for the Commonwealth Bank. This note was given, apparently, as the juror was leaving on the Friday afternoon. 55Her Honour consulted counsel on the Monday morning and had already taken the steps to sequester the juror on arrival on the Monday morning. The after some discussion, the juror was called and gave evidence on the voir dire. The note was in the following terms: "I want to advise that I am employee of the Commonwealth Bank of Australia staff (sic). My job is computer systems although I do not know Shane or Greg Walton or anyone at the Maitland branch. I do have contact with Group Security for my job. Group Security was mentioned today by Greg." 56Her Honour asked whether the juror knew "anything about this trial or the facts of this trial other than that which you have heard during court"? The juror replied in the negative. No counsel sought to ask a question. 57Her Honour also warned the juror not to make enquiries or to seek to have enquiries made. To that warning the juror responded: "Yes of course and I have not done so." 58No application was made thereafter for the disqualification of the juror or the discharge of the jury. Plainly, the note was written as a matter of abundant caution and displays the seriousness with which the juror approached the task before the Court. 59As the discussion between her Honour and counsel disclosed, the operations of the Commonwealth Bank were at best peripheral to the charges before the Court. There was no application for disqualification or discharge. Nor could any such application have been successful, as it had no basis. 60The issue was dealt with appropriately by her Honour and by Mr Chibwe's legal representatives. There is no basis for this ground of appeal.

Ground 4: Reliance on Circumstantial and Coincidence Evidence and Unreasonable Verdict 61No application was made during the course of the trial to adduce evidence under section 98 of the Evidence Act 1995. Given that Mr Chibwe is, on this appeal, unrepresented, the absence of coincidence evidence, in a formal sense, ought not to be taken as conclusive against the ground of appeal upon which Mr Chibwe relies. 62It seems that Mr Chibwe uses the term "coincidence" as emphasis of the term "circumstantial" and is referring to the absence of direct evidence as to Mr Chibwe's state of mind at the time of the transactions. 63The Crown case at trial was not unusual for this kind of case. Rarely is there direct evidence of the state of mind in a charge that requires the proof of recklessness. Ordinarily, a jury is asked to infer recklessness from the conduct of the accused. This case is no different. 64There was sufficient evidence before the jury from which the inference of recklessness could be drawn and the mere fact that the Crown relied upon circumstantial evidence does not vitiate the jury's verdict. 65Otherwise, the ground relies upon the proposition that the verdict of the jury was unreasonable. I have earlier recited the principles that should be applied in determining whether the verdict of the jury is unreasonable. 66I have read the entirety of the transcript and accept the general accuracy of the Crown summary of the evidence and of the cases led by the Crown and the defence. Having read the evidence, I do not have a doubt of the kind described by the High Court in M v R. I have weighed the competing evidence adduced at trial and I am satisfied, beyond reasonable doubt, on the evidence, that Mr Chibwe committed the offence of which he was convicted. This ground of appeal is also rejected.

Orders 67Before this Court, Mr Chibwe did not seek leave to appeal. An appeal as of right arises only when the appeal "involves a question of law alone". No ground of appeal raised by Mr Chibwe involves a question of law alone. Each ground raises, in one form or another, a miscarriage of justice or the reasonableness of the verdict. 68As a consequence, leave to appeal is necessary: Krishna v DPP [2007] NSWCCA 318; Alramadan v DPP [2007] NSWCCA 322. This appeal involves an appeal against conviction and, even though the applicant has already served the sentence imposed upon him, the importance of his reputation, particularly in circumstances where he had no prior convictions, is sufficiently important to warrant leave. 69As a consequence of the foregoing, I propose that the Court make the following orders: (i) Leave to appeal granted; (ii) Appeal dismissed.

Amendments 08 February 2012 - Counsel's name was incorrect Amended paragraphs: Appearances 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: 08 February 2012

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