Criminal law – Money laundering – Criminal offence under s 400.3(1) of Criminal Code (Cth) to deal with property intending it will become “instrument of crime” – Appellant dealt with shares intending not to declare resulting capital gain – Whether shares “instrument of crime”.
Words and phrases – “instrument of crime”, “money laundering”, “used in the commission”, “used to facilitate”.
Criminal Code (Cth), ss 134.2, 400.1(1), 400.2(1), 400.3(1).
CRIME – murder – special hearing – partial defence of substantial impairment by abnormality of the mind
“6. There was no cross-examination of any of the witnesses. All the statements were tendered without objection. The Crown and the defence agreed to waive the rules of evidence. Section 184 of the Evidence Act 1995 permits an accused in a criminal proceeding to admit a matter of fact or to give a consent “if advised to do so by his or her lawyer”. Section 190 of the Evidence Act permits the rules of evidence to be waived; however the defendant’s consent in criminal proceedings is not effective unless the defendant has been advised to consent by his or her lawyer. Mr Winch, who appeared for the accused, confirmed that he had given him the requisite advice. The procedure adopted is not inconsistent with s 21(1) of the Mental Health (Forensic Provisions) Act: R v Zvonaric  NSWCCA 505; 54 NSWLR 1 at 6 - , per Spigelman CJ, with whom Sully J agreed.”
CRIMINAL LAW – APPEAL AGAINST CONVICTION – money laundering – (s 400.3(1) Criminal Code (Cth)) – dishonestly obtain gain from Commonwealth (s 135.1(1) Criminal Code (Cth)) – money laundering involving creation and misuse of offshore structure – dishonest obtaining offence involving deception of accountants and lodgement of false tax return – failure to declare capital gain – share swap designed to hide capital gain – transfer of legal ownership of shares with retention of the beneficial ownership – whether there was evidence to support the first charge – whether trial judge correctly refused verdict by direction – whether the shares involved in the transaction were intended by the offender to facilitate the commission of an offence – meaning of “used to facilitate” – whether facts capable of constituting money laundering offence – whether trial judge failed to give essential directions – whether a miscarriage of justice occurred – whether verdicts were unreasonable – whether capital gains event occurred in relevant financial year or later.
CRIMINAL LAW – SENTENCE APPEAL – not guilty plea – grossly understated capital gain in false tax return – separate criminality in each of two related offences – loss to revenue of at least $1.9 million in capital gains tax – assessment of overlapping criminality – whether sentencing judge erred in assessment of criminality – whether totality principles correctly applied – whether sentences imposed reflected double punishment – substantial aspects of criminality in each offence – need for substantial sentences for each offence – importance of general and special deterrence in revenue avoidance offences – whether sentences were appropriately accumulated – whether good character overlooked – whether facilitation of the course of justice overlooked – whether sentences were manifestly excessive.
CRIMINAL LAW – jurisdiction, practice and procedure – real or substantial question raised about fitness to plead in the Magistrates Court – committed to the Supreme Court for trial.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offences.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – accused ordered to submit to the jurisdiction of ACAT.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offence.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – what orders can be made.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – whether bail can be granted to submit to the jurisdiction of ACAT – no apparent power.
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused found unfit – special hearing – accused engaged in conduct required for charged offences.
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming unfit during trial – election for trial by judge alone – need for court to indicate whether accused can elect for trial by judge alone – expression of opinion by guardian – need for proper method of expressing opinion.
CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused unfit to plead – special hearing – accused found to have engaged in conduct required for charged offences – disposition – whether other orders available – orders when multiple offences involved.
CRIMINAL LAW – trial by judge alone – double murder – self-defence – effect of intoxication – whether the accused perceived threat – response beyond what was necessary – accused’s statements to friend evidencing an intent to kill – verdict of guilty.
Evidence Act 1995 (Cth), s 184
CRIMINAL LAW – sentence – relevant factors – nature and circumstances of offence – gravity of offence – generally – parity between co-offenders – grounds for discrimination between co-offenders – degree of criminality.
DEFENCE AND WAR – appeal against service conviction by General Court Martial on ground that conviction unsafe or unsatisfactory – defences of involuntary intoxication and honest and reasonable mistake pursuant to Criminal Code 1995 (Cth) clearly raised by the evidence – only defence of honest and reasonable mistake raised at trial – submissions invited on question of involuntary intoxication on appeal – prosecution did not discharge onus of proof beyond reasonable doubt – whether appellant was conformably charged with offence under the Defence Force Discipline Act 1982 (Cth) (“the Act”) – proper construction of procedural steps pursuant to s 87 of the Act to be taken in charging person with service offence – powers of Director under the Act to be widely construed – intention of Act to grant independent statutory discretion to Director in prosecuting service offences – appellant charged conformably with the Act
unlawful administration and supply of drug to procure miscarriage
interlocutory rulings on questions of evidence
whether Crown ought be permitted during opening to provide contentions of law in writing
construction of “unlawfully” in Crimes Act 1990 s83
test of proportionality objective
manslaughter by criminal negligence
duty of care to child once born alive
evidence relevant to credibility of accused and to asserted facts
Crown permitted to cross examine prosecution witnesses
evidence of medical opinion as to whether baby born alive
whether expertise established
use of medical report prepared for Health Care Complaints Commission
whether evidence from report admissible
evidence of medical practitioner admissible
whether disclosure of report unlawful
consciousness of guilt
conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt
discharge of one juror on medical evidence
order that trial proceed with jury of eleven