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Court of Appeal of New Zealand |
Last Updated: 28 April 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA377/2009CA384/2009[2010] NZCA 130
BETWEEN KEITH RICHARD MARSH AND JAMES JOSEPH
KAPA
Appellants
Hearing: 10 March 2010
Court: Ellen France, Miller and Allan JJ
Counsel: K R Marsh in person
M A Edgar for Appellant Kapa
K J Raftery for Respondent
Judgment: 20 April 2010 at 10.30 am
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JUDGMENT OF THE COURT
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REASONS OF THE COURT
(Given by Allan J)
[1] Together with a third co-accused, Mr Van Wakeren, the appellants stood trial in the Auckland District Court on various counts of burglary and associated counts of money laundering. The trial, before Judge Hubble and a jury, commenced on 23 February 2009 and concluded on 12 March 2009.
[2] The following verdicts were returned:
[3] On 3 June 2009 Judge Hubble sentenced Mr Kapa to three and a half years imprisonment and Mr Marsh to two and a half years imprisonment.[1]
[4] Mr Kapa now appeals against his conviction on count 1 (relating to the burglary of the Westgate Tenpin bowling centre), and his convictions on the money laundering counts. Mr Marsh appeals against each of his convictions, and against sentence.
Background
[5] The indictment contained seven counts of burglary which covered the period between 15 November 2003 and 24 July 2004. They concerned the alleged burglary of ten pin bowling centres and taverns for the purpose of stealing the contents of gaming machines situated within those premises. Each accused also faced a number of money laundering charges arising from the alleged payment of criminal proceeds into the offenders’ bank accounts. In all, the indictment contained some 28 counts.
[6] Mr Kapa faced all seven burglary counts. Mr Van Wakeren was alleged to have been his co-offender in relation to counts 1 and 7. It was alleged also that he was the co-offender in relation to count 2. On that occasion, he was caught by the police in the course of the burglary, and having pleaded guilty, was convicted and sentenced to a short term of imprisonment. The jury was not asked to return a verdict against Mr Van Wakeren on count 2. The Crown case was that, following Mr Van Wakeren’s release on 1 April 2004, he was also a participant in the burglary that was the subject of count 7.
[7] Mr Marsh was also originally named in count 1, but was discharged under s 347 of the Crimes Act 1961 on 27 February 2008. In the result, he faced only those burglary charges which appeared in counts 3–6 inclusive.
[8] In a previous judgment concerning severance, we set out in tabular form the various burglary counts: R v Kapa.[2] For ease of reference we reproduce the table here.
Count Offence Date Premises Accused
1 15.11.03 Westgate Tenpin Kapa and Van Wakeren
2 30.11.03 Link Drive Tenpin Kapa and Van Wakeren
3 19.12.03 Golden Rudder Bar Kapa and Marsh
4 13.02.04 Golden Rudder Bar Kapa and Marsh
5 22.02.04 Eastside Tavern Kapa and Marsh
6 04.03.04 Prince Albert Tavern Kapa and Marsh
7 24.07.04 Whangaparaoa Tenpin Kapa and Van Wakeren
[9] The Crown alleged that the offenders targeted gaming machines in premises to which entry could be gained through the ceiling, either by cutting through the roof itself, or by secreting themselves in the ceiling during business hours.
Burglary conviction appeal: Mr Marsh
[10] Mr Marsh was found guilty on counts 3 and 5 which related to the alleged burglary of the Golden Rudder Bar and the Eastside Tavern respectively. He was acquitted on count 4, which involved a later burglary of the Golden Rudder Bar. On count 6, which concerned the alleged burglary of the Prince Albert Tavern, the jury was unable to agree.
[11] In respect of count 3 Mr Marsh argues that:
(a) The verdict was not supported by the evidence;
(b) The elements of the charge were not proved because the Crown failed to identify the precise role ascribed to Mr Marsh;
(c) The guilty verdict was inconsistent with his acquittal on count 4.
[12] In order to place these contentions in their proper context, it is necessary to discuss the nature of the Crown case against the appellants.
[13] The Crown relied upon a number of similarities to establish a pattern, and so to support the proposition that the appellants were involved in each of the burglaries with which they were charged. In other words, the Crown case depended substantially upon propensity reasoning.
[14] In respect of count 3, the Crown alleged that there was a remarkable similarity in respect of mode of entry to the target premises in counts 3, 4 and 6. In each case, entry was effected through the roof, a section of roofing iron having been cut away.
[15] Further, all of the premises which were the subject of the seven alleged burglaries had dedicated gaming areas, and the contents of the gaming machines were targeted. In the case of several of the burglaries (including counts 3 and 5), steps were taken to disable surveillance cameras, either by covering them with a plastic cover or by turning them away from the scene.
Count 3
[16] With respect to count 3, the Crown relied in particular on two key points:
(a) surveillance footage; and
(b) subsequent cash deposits in the appellants’ bank accounts.
[17] Mr Marsh is heavily critical of the identification evidence, both in respect of the deployment by the Crown of the surveillance footage itself, and as to the weight to be attached to the evidence of Crown witnesses.
[18] The police investigating the burglary viewed surveillance footage from the evening prior to the burglary when the appellants were alleged to have been in the Golden Rudder Bar. Unfortunately that tape was not retained (we do not know why), but still shots from the footage were produced at trial. The still shots depicted a small man with a moustache, wearing a white tee shirt. This man was claimed by the Crown to bear a marked similarity to Mr Kapa. The shots also depicted a larger man wearing a red tee shirt. The Crown case was that this man was similar in appearance and build to Mr Marsh.
[19] Descriptions of the footage of the previous evening were given by Constables Boyd and Brown, who viewed the tape before it became unavailable. There was also evidence from a Mr Coupe, who was the bar manager. All three witnesses gave descriptions of the persons who were in the bar on the previous evening. There were discrepancies between the various descriptions given and, in some instances, between those descriptions and the persons appearing in the still shots that were retained.
[20] The Crown case was that the two men depicted in the photographs appeared to be uninterested in gambling and paid particular attention to the layout and security features of the premises. Mr Coupe was the only witness who actually saw the persons concerned at the time. He also viewed brief surveillance footage from the night of the burglary itself. He gave evidence that this footage (not produced to the jury because the tape was damaged) disclosed two persons entering the premises, a man crawling across the floor, and then the camera going blank. Before it did so a second man could be seen on camera. Mr Coupe thought that the two men depicted in the surveillance footage looked like the two men he had seen the previous evening, one a large man and the other short.
[21] Mr Marsh argued that Mr Coupe’s evidence was unreliable because he was shaken on matters of detail; for example he accepted that his estimates of the passage of time might have been inaccurate. He thought Mr Marsh was the man in the red shirt who appeared on the surveillance tapes and who had been on the premises the previous evening. Mr Marsh complains that he does not own a red shirt, and that the description Mr Coupe gave of the man in the red shirt (about six feet tall with a shaven head, in his early thirties and with light brown skin) was completely at odds with Mr Marsh himself (in his fifties with grey hair and very fair skin).
[22] Mr Marsh contends that the evidence of Constable Boyd was also unreliable in that it was based upon his recollection of the surveillance tapes viewed some five years previously, and that it was at odds with that of Mr Coupe. Constable Boyd’s recollection of the videotape of the prior evening was to the effect that the two men concerned entered the bar together and stood about continuously looking towards the ceiling security cameras and alarm sensors, leaving the bar together within five minutes. Mr Coupe thought they had arrived separately and may have been there for more than half an hour.
[23] The evidence given by Constable Brown was rather more limited than that of the other two witnesses. She was unable to identify the persons depicted on the second tape as being the same as those appearing on the first. Moreover, she thought the two men appearing on the first tape did not speak to each other for about half an hour after their arrival.
[24] At trial, Mr Marsh accepted that video footage obtained from the site of the Eastside Tavern burglary (count 5) depicted him and Mr Kapa. But he now claims that, given the unreliability and inaccuracy of the identification evidence relied upon in respect of count 3, the jury must simply have assumed that, because Mr Marsh was admittedly with Mr Kapa at the Eastside Tavern, he must also have been a participant in the Golden Rudder Bar burglary.
[25] In addition to the identification evidence, the jury had evidence about the making of cash deposits by Mr Marsh. Approximately $4,500 was taken in the Golden Rudder Bar burglary (count 3). On 19 December 2003, the day of the burglary, Mr Marsh deposited $420 into his account, although it is unclear whether or not the deposit involved a large quantity of coins. Several days later, on 22 December 2003, Mr Marsh deposited a further $400 in coins into his account.
[26] In our view there was plainly sufficient evidence upon which the jury could properly conclude that Mr Marsh was guilty on count 3. All of the points raised by Mr Marsh go essentially to questions of weight, reliability, and credibility. The Crown relied upon the identification evidence, the bank deposits, and, as propensity evidence, Mr Marsh’s admitted presence at the Eastside Tavern with Mr Kapa (count 5). The weight to be accorded this evidence was a matter for the jury. We are satisfied that there were sufficient grounds for count 3 to be left to the jury.
[27] Mr Marsh makes two further criticisms of his conviction on count 3. The first concerns his claim that the Crown was bound to identify him either as a principal offender or as a party, and that, because the Crown simply ran its case on the footing that he must have been one or the other, he ought to have been acquitted.
[28] In opening, counsel for the Crown told the jury:
The Crown do not need to prove who did what exactly, just that they were both involved. The Crown say that they both assisted each other, even if you find one of them was a lesser player than the other. That other, the lesser player, is just as liable.
[29] Mr Marsh complains that there was no evidence as to what part, if any, he played in the first Golden Rudder Bar burglary (count 3), or the degree of assistance he provided if he was a party. He claims that his conviction on count 3 was, accordingly, flawed.
[30] Section 329(4) of the Crimes Act 1961 requires that an indictment:
... shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.
[31] But it is not necessary in every case to specify whether the accused is charged as a principal or as a party. Section 343 of the Crimes Act provides:
343 Indictment of parties
Every one who is a party to any crime may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.
[32] In a particular case, the necessity under s 329 properly to inform the accused of the case against him or her may require the Crown to indicate in the indictment whether it alleges the accused was a principal or a secondary party. The test will be whether the accused was given a fair opportunity to understand the Crown case against him and to answer it: R v Shaw.[3]
[33] In the present case the Crown’s approach was consistent throughout. It alleged that Mr Marsh was criminally liable, either as a principal or as a party. The Crown was unable to distinguish the respective roles of the accused, but ran its case on the basis that Messrs Kapa and Marsh were sufficiently involved in the events relied upon to justify a finding of guilt, whether as a principal offender or as a party. Mr Marsh could not have been in any doubt as to the Crown’s case against him. Mr Raftery says that is a sufficient compliance by the Crown with ss 329(4) and 343.
[34] We agree. Mr Marsh well knew that the Crown contended that either he or Mr Kapa entered the premises, and that the other played a supporting role sufficient to render him liable as a party. There was evidence upon which it was open to the jury to convict. Whether Mr Marsh was guilty either as a principal or as a secondary party was a matter for the jury.
[35] The other complaint raised by Mr Marsh concerns his acquittal on count 4. That count related to a later burglary of the Golden Rudder Bay. Mr Marsh says that the jury could not credibly find him guilty on count 3 and not guilty on count 4. We reject that contention. Mr Kapa was also acquitted on count 4. That verdict is consistent with a conclusion that the Crown had not established beyond reasonable doubt that the second burglary of the Golden Rudder Bar could be laid at the door of the appellants. Rather than undermining the verdict on count 3, the count 4 acquittal simply demonstrates that the jury was undertaking its duties in a conscientious manner.
[36] As something of a side issue, Mr Marsh raises with the Court a point that arose during the trial. It emerged that Constable Boyd was acquainted with a member of the jury. The pair had met in the context of their joint involvement with a sporting organisation. On the information available to this Court it appears that the issue was identified by counsel and taken up with the Judge, but nothing formal was done. In particular, there is no minute from the Judge and it seems there was a measure of agreement to the effect that the acquaintance was not sufficient to justify the standing down of the juror.
[37] On appeal Mr Marsh does not press the point to the extent of claiming that the convictions ought to be quashed on that ground alone. There was nothing before us to indicate that the nature of the acquaintance was such as to have warranted any further investigation. We consider that, the issue not having been pursued by Mr Marsh’s counsel at the time, it should simply be set aside.
Count 5
[38] We turn to Mr Marsh’s conviction on count 5, which concerned the Eastside Tavern. Again Mr Marsh contends that the guilty verdict was not supported by the evidence. Here, surveillance footage was available. It was played to the jury. Mr Marsh is critical of the fact that the jury saw only the period between 11 pm and 11.50 pm; it did not see the earlier period between 9 and 11 pm when Messrs Kapa and Marsh were in the bar, nor did it depict the later period between 11.50 pm and 12.30 am when Mr Marsh says he left the premises.
[39] Mr Marsh accepts that he was with Mr Kapa over a period of some hours at the Eastside Tavern on the night of the burglary and that he is the person identified on the tape. The Crown case was that Mr Kapa twice moved towards the motion sensor, holding an object in his hand while doing so. Following the burglary, it was discovered that the motion sensor had been disabled by the use of a plastic cover (as had also been the case in counts 1 and 2).
[40] Mr Marsh’s point is that, during the whole of the tape shown to the jury, he remained in his seat. Although he spoke to Mr Kapa on numerous occasions he did not “actively incite or participate” to use Mr Marsh’s own words. At about 11.45 pm he accompanied Mr Kapa out of the hotel to the carpark. Mr Kapa left. As depicted on the videotape, Mr Marsh then returned alone to the tavern.
[41] The plastic mask which covered the alarm sensor was later destroyed and could not be produced as an exhibit. A shoeprint, identified directly below a broken window above a gaming machine, was not investigated, and in particular no dimensions were taken so as to determine the relevant shoe size. Mr Marsh complains that, had police investigations been undertaken more thoroughly, he may well have been exculpated.
[42] Approximately $5000 in coins was taken in the burglary. On 24 February 2004, two days after the burglary, Mr Marsh deposited $600 in coins into his bank account. Three days later, on 27 February 2004, he deposited a further $400 in $2 coins into his account.
[43] Mr Marsh argues there is no evidence to implicate him in the burglary. In advancing that submission, we suspect that he both misunderstands the scope of the law relating to parties to criminal offences, and overlooks the proper place of inferences in the process of determining culpability. Section 66 of the Crimes Act provides:
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) Actually commits the offence; or
(b) Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
[44] It was not necessary that the Crown establish that Mr Marsh “actively incited or participated”. Any act or omission falling with s 66 will suffice. We accept Mr Raftery’s submission that there was plainly a sufficient basis upon which a jury could reasonably reach a conclusion of guilt. The points raised by Mr Marsh were matters for the jury, and do not bear upon the sufficiency of the available evidence.
Subsidiary points
[45] It is necessary to comment only briefly upon several other points raised by Mr Marsh in his written material, but not accorded particular primacy by him at the hearing before us.
[46] First, he expressed concern at the deployment of a chart, prepared by counsel for the Crown, and referred to by counsel during the trial. The chart referred to some 30 burglaries, including the seven which were the subject of the charges against the appellants, and was intended to support the Crown case that certain of the deposits made by the accused into their bank accounts may have been the proceeds of burglaries other than those with which they had been charged. The chart was not produced by the Crown and was not referred to in the closing address of Crown counsel to the jury. But it was produced as a defence exhibit on behalf of Mr Kapa, through the officer in charge, Detective Wilson. That seems to have been done for the tactical purpose of watering down the propensity evidence relied upon by the Crown.
[47] Counsel for Mr Marsh indicated that he did not at the time consent to the exhibit being produced, but without then giving any reasons for his opposition. The Judge was not asked to provide a formal ruling. Mr Marsh considers he may have been prejudiced by the availability of the chart, in that the jury may well have inferred that he and his co-offenders were likely to have been guilty of some or all of the offences occurring in the chart, so adding weight to the Crown’s propensity argument.
[48] The Judge considered that counsel for Mr Kapa was entitled to have the chart produced for tactical reasons, unless counsel for Mr Marsh could advance good reasons to the contrary. No such grounds were advanced. In those circumstances, we agree that the chart was properly admitted. But in any event, we do not consider the impact of the introduction of the chart was such as to give rise to a risk of a miscarriage of justice.
[49] An allied point concerns the role of Mr Van Wakeren in the trial. Mr Marsh complains that he was prejudiced by the fact that the trial included a large number of counts faced by his co-accused, but not by him. That situation is however commonplace where there are joint offenders. The question of severance was dealt with by this Court in R v Kapa. No good basis was advanced for relitigating the issue.
[50] Finally, we refer to the question of delay. The trial took place about four years after the last of the alleged offences. On any view such a delay is undesirable. Mr Marsh says that the proceeding ought to have been stayed. Just prior to the trial Mr Van Wakeren did make an application to Judge Hubble. The Judge concluded that there was no basis for a stay. In particular, he found, the delay could not be laid at the door of the Crown, all adjournments and vacated dates having been at the request of counsel for the accused.
[51] The question of undue delay was recently considered in Williams v R,[4] decided after Judge Hubble made his determination (although the Judge expressly referred to Asher J’s judgment in the High Court). In Williams the Supreme Court said:[5]
The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory, or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a Court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If however the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.
[52] Mr Marsh received a six month reduction in sentence on delay grounds. We consider that discount, as Mr Raftery submits, to have been “a reasonable and proportionate response” to such delay as occurred in the present case.
Conclusion
[53] We are satisfied that Mr Marsh’s appeals against conviction on counts 3 and 5 must fail.
Appeal against conviction: Mr Kapa
[54] Mr Kapa appeals against conviction on count 1, but not against conviction on counts 3, 5 and 7. Count 1 concerned the burglary of the Westgate Tenpin Bowling Centre.
[55] The Crown case against Mr Kapa on count 1 was, in keeping with the rest of the Crown case, entirely circumstantial. It was principally based upon the following circumstances:
(a) All of the premises which were the subject of the seven burglaries had dedicated gaming areas incorporating gaming machines, which were the offenders’ target. The burglaries alleged in counts 1, 2 and 7 each involved tenpin bowling premises;
(b) All seven burglaries involved entry through the roof or ceiling. Four entailed the cutting away of a portion of the iron roof; in the remaining three access was gained by an offender who hid in the ceiling;
(c) In three of the seven burglaries (including count 1), similar plastic covers were placed over the alarm/motion sensors in order to disable them. The security footage from count 5 depicted a person bearing a strong resemblance to Mr Kapa (admittedly at the scene on the night in question) climbing up to a corner where the motion sensor was positioned, and carrying what appeared to be a plastic cover;
(d) Recorded electronic data disclosed that the offending occurred between about 3 and 5 am. During this period 12 calls passed between Mr Kapa’s mobile phone and that of Mr Van Wakeren;
(e) Approximately $9000 in notes and $3000 in coins was taken in this burglary. Two days later, on 17 November 2003, Mr Kapa deposited $1,400 in cash into his account.
[56] Mr Edgar submits that the deposits into Mr Kapa’s bank account must be discounted for present purposes. He was acquitted on count 8, which alleged the laundering of money that the Crown says reflected the proceeds of the Westgate burglary. If the bank deposits are put to one side, Mr Edgar contends, the jury was left only with general propensity evidence and the telephone communications during the period of the alleged burglary.
[57] We do not accept that the jury verdict against Mr Kapa on count 1 was unsafe, or that otherwise lacked a proper evidential foundation. It is not known precisely why the jury acquitted Mr Kapa on count 8, given the Crown contention that the bank deposits which formed the foundation of that count were derived from the proceeds of the burglary alleged in count 1. But, even if the bank deposits are put aside for present purposes, there remained ample evidence upon which the jury could properly convict. Without engaging in undue speculation, the jury might very well have thought it remarkable that Mr Kapa, a co-offender with Mr Van Wakeren on another occasion (count 5, not the subject of appeal by Mr Kapa), should have been in telephone contact with Mr Van Wakeren every few minutes between 3 and 5 am, at the very time at which the burglary was being undertaken. That circumstance, along with the other surrounding evidence relied upon by the Crown, clearly constituted a sufficient basis for the jury’s verdict.
[58] Mr Kapa’s appeal against conviction on count 1 must accordingly be dismissed.
Money laundering
[59] The money laundering counts were based upon evidence that each appellant had on various occasions, usually within days of an alleged burglary, paid into his ordinary bank account substantial cash sums. In certain instances there was evidence that the deposit consisted entirely of coins. In other cases the denominations were unknown.
[60] The Crown case was that these deposits were effected in order that the bank notes and coins concerned might be concealed from investigation or discovery, for example upon the execution of a search warrant. On the other hand, the appellants argued at trial that the purpose of depositing the money into their bank accounts was simply to facilitate the meeting of ordinary living expenses. They used their existing bank accounts and took no particular steps to conceal the deposits. Although various bank branches were used, that was simply dictated by reason of geographical proximity and personal convenience at the time. The deposits were made over the counter in the usual way.
[61] During the course of his summing up, Judge Hubble provided a written direction to the jury on the essential ingredients of the money laundering counts. He said there were four such ingredients:
First, dealing with the money. This would include banking it, so that if you are satisfied that the Crown has proved beyond reasonable doubt that each of the accused did bank money, then that ingredient is proved. I do not understand that there is any real dispute about this element.
Secondly, you must be sure that the money which was so banked came from the burglaries in this case. The Crown do not have to prove that the money came from a particular burglary but you must be satisfied that the money was the product of burglaries either by the accused themselves or by third parties.
The third element is that each particular accused must have knowledge that the money was the product of burglaries. In this case the Crown claims a connection with, for example, counts one to seven. Of course, if you were to find that one or more of the accused were involved in the burglaries and the monies dealt with were from those burglaries, you’d have little difficulty in concluding that they have knowledge of their own actions.
The fourth essential element of a money laundering charge is that the Crown must prove that the intention of each accused, on the occasion of each of the bankings, was to conceal it, not just by hiding it but by laundering it. Conceal in this context, means converting the money from one form to another or disguising the nature or source of the money. You must however be satisfied that the accused had an intention to conceal by this laundering process. Thus a person does not money launder simply by hiding the money in a sack or by hiding it in a tin at the bottom of the garden.
The classic means of money laundering is often by changing it for chips at a casino and funds can then be identified as possible proceeds of wins at the casino. Another example is by changing it from one currency to a different currency. However, a person does not necessarily engage in laundering by simply buying some article and keeping it for themselves. Such activity could amount to money laundering if it is found that goods are being traded and then re-traded. In the same way just banking money need not necessarily be money laundering. You need to be satisfied that there is an intention to conceal.
[62] No specific criticism is levelled by Mr Marsh and Mr Edgar at the summing up. Rather, as we understand it, the contention is that the mere act of paying the proceeds of the burglaries into the appellant’s existing bank account could not in law amount to concealment for the purposes of s 243, and so the money laundering charges ought never to have been left to the jury.
[63] Section 243(4) of the Crimes Act 1961 provides:
(4) For the purposes of this section, a person engages in a money laundering transaction if, for the purpose of concealing any property or enabling another person to conceal any property, that person—
(a) deals with that property; or
(b) assists any other person, whether directly or indirectly, to deal with that property.
[64] This Court has recently engaged in a detailed analysis of the law relating to money laundering.[6] That case involved s 12B of the Misuse of Drugs Act 1975, but it is common ground that s 12B is materially identical to the provisions of s 243 of the Crimes Act.[7]
[65] Following a detailed review of prior authority, O’Regan J, delivering the judgment of the Court, said:[8]
Drawing these threads together, we consider that the intention of Parliament in enacting s 12B and its equivalents was not to criminalise all dealing with criminal proceeds. Miller J accurately set out the four elements of the offence in the extract quoted at [82] above. The crucial factor is that element (d) stipulates the purpose for which the dealing in the proceeds occurred: the section does not make it an offence to conceal proceeds, but rather to deal in proceeds with the purpose of concealment. Nor does it make it an offence to deal with proceeds in a way which happens to involve concealment (such as wrapping up a pile of banknotes or using coded messages). Concealment must be the purpose of the dealing.
[66] We return to the present case. The Crown led evidence that established a number of payments by the appellants into their personal bank accounts of substantial sums of money (sometimes consisting entirely of coins and at other times of unknown denominations) on dates that were proximate to preceding burglaries. It was therefore open to the jury to conclude that the appellants were thereby dealing in the proceeds of the burglaries.
[67] But the Crown was bound to go further and to show beyond reasonable doubt that the purpose of the bank deposits was that of concealment. It was not sufficient to show that the proceeds had been dealt with in a way which happened to involve concealment (in the sense for example that the bags of coins were removed from the appellant’s house or car in order that they might be deposited in the bank and thereby taken beyond the reach of a potential search warrant).
[68] The Crown was obliged to establish that concealment was the very purpose of the making of the deposits. But at trial, the Crown relied simply on the deposits themselves. No other concealment was identified. We were told from the bar (without objection from Mr Raftery) that the appellants simply took the cash (including on occasion heavy bags of coins) into a geographically convenient bank branch, and there deposited the sums concerned into their existing bank accounts, the intention being to meet ordinary living expenses and to “pay the bills” as Mr Marsh put it.
[69] Although these deposits no doubt constituted a “dealing” for the purposes of s 243, the purpose of concealment was in our view absent. Instead, the appellants’ purpose appears to have been to facilitate the subsequent use of the funds.
[70] We consider therefore that there was no evidence of “concealment” for the purpose of s 243(4), and that the money laundering counts ought not to have been left to the jury. It follows that the appeals against the money laundering convictions must be allowed.
Appeal against sentence: Mr Marsh
[71] Mr Marsh is a recidivist burglar with a long and unfortunate criminal history. He himself described his record as “shocking”. There is no possible basis upon which the sentence of two and a half years imprisonment imposed upon him could be questioned on ordinary principles. Mr Marsh was inclined to suggest that the sentence might be considered manifestly excessive by reason of a period spent on bail but subject to a nightly curfew, and by reason also of an asserted disparity with the sentences imposed upon his co-offenders. Neither of these grounds is of any substance.
[72] We do consider however that some adjustment is necessary to his overall sentence in order to reflect this Court’s decision to quash the money laundering convictions. The Judge imposed end sentences of two and a half years imprisonment on the burglary charges and 18 months imprisonment on each of the money laundering charges, all to be served concurrently. In doing so he observed that the money laundering charges should be dealt with on the basis that they are:
... a modest aggravating feature overall. But I think, as I indicated during the course of the hearing, they do introduce a degree of multiplicity of punishment when viewed in relation to the burglaries which have taken place.
[73] We think it is a proper inference that the Judge regarded the money laundering charges as adding little to the overall culpability of the appellants, and so calling for a modest uplift only on the lead charge (the burglaries) in order to achieve an appropriate totality outcome.
[74] In all the circumstances we consider that the appropriate sentencing result is to reduce Mr Marsh’s sentence to two years imprisonment. We note that Mr Kapa did not appeal against sentence.
Result
[75] The appellants’ appeals against conviction on the money laundering charges (counts 17–24 for Mr Marsh and counts 9–16 for Mr Kapa) are allowed, and their convictions on those counts are quashed.
[76] Mr Marsh’s appeal against sentence is allowed. We quash the concurrent sentences of two and a half years imprisonment imposed upon him on each of the burglary counts and substitute concurrent sentences of two years imprisonment.
[77] The appeals are otherwise dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
[1] R v Kapa
DC Auckland CRI-2006-004-00948, 3 June
2009.
[2] R v
Kapa [2008] NZCA 374 at
[4].
[3] R v
Shaw CA159/05, 22 November 2006 at [37] and
[43].
[4]
Williams v R [2009] NZSC 41, [2009] 2 NZLR
750.
[5] At [18]
(footnotes
omitted).
[6] R v
Rolston [2008] NZCA
431.
[7]
Rolston at
[81].
[8] At
[105].
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