R v Elkhouri [2020] NSWDC 741

District Court New South Wales

Medium Neutral Citation: R v Elkhouri [2020] NSWDC 741 Hearing dates: 16 July 2020; 22 July 2020; 1 October 2020 Date of orders: 1 October 2020 Decision date: 01 October 2020 Jurisdiction: Criminal Before: M Adams QC ADCJ Decision: Not Guilty Verdicts Catchwords: TRIAL BY JUDGE ALONE - knowingly deal with proceeds of crime Legislation Cited: Crimes Act 1900 Category: Principal judgment Parties: Office of Director of Public Prosecutions (Crown) Christopher ELKHOURI (Accused) Representation: Counsel: J Bowers of C (Crown) T Hughes of C (Accused)

Solicitors: ODPP (Crown) Sayad Sahinovic Legal (Accused) File Number(s): 2015/98606 Publication restriction: None

Judgment

INTRODUCTION 1. Chris Elkhouri stands charged with offences connected with rebirthing of motor vehicles and dealing with the proceeds of stolen goods. The particulars of the charges are as follows – (i) Between 29 July 2014 and 6 August 2014, in Alexandria and Concord in the State of New South Wales, he did facilitate car rebirthing activity that was carried out on an organised basis, knowing that it was a car rebirthing activity and it was carried out on an organised basis. (ii) Between 29 July 2014 and 6 August 2014, in Alexandria in the State of New South Wales he did deal with the proceeds of crime, namely two Compair brand Superlight mobile lighting towers knowing that they were the proceeds of crime. (iii) On 6 August 2014, in Concord in the State of New South Wales, did deal with the proceeds of crime namely a red Ferrari knowing that it was the proceeds of crime. (iv) On 6 August 2014 in Concord in the State of New South Wales did deal with the proceeds of crime, namely a maroon VN Holden Commodore SS Group A sedan, knowing that it was the proceeds of crime. 1. The first charge alleged an offence under s154G of the Crimes Act 1900 (unless otherwise indicated, all statutory references are to this Act), whilst the other three charges allege offences under s193B(2). 2. Mr Elkhouri elected to be tried by Judge alone. 3. So far as the first count is concerned, s 154G provides as follows – 154G FACILITATING ORGANISED CAR, BOAT OR TRAILER REBIRTHING ACTIVITIES (1) A person who facilitates a car, boat or trailer rebirthing activity that is carried out on an organised basis knowing that – (a) it is a car, boat or trailer rebirthing activity, and (b) it is carried out on an organised basis, is guilty of an offence. Maximum penalty--imprisonment for 14 years. (2) For the purposes of this section, a car, boat or trailer rebirthing activity is an activity involving one or more of the following – (a) the stealing of a motor vehicle, vessel or trailer or the receiving of a stolen motor vehicle, stolen vessel or stolen trailer, (b) the interference with a motor vehicle, vessel or trailer, or a part of a motor vehicle, vessel or trailer, or a unique identifier, for the purpose of concealing the fact that a motor vehicle, vessel or trailer, or any part of a motor vehicle, vessel or trailer, is stolen, (c) the affixing of stolen parts to a motor vehicle, vessel or trailer, (d) the interference with a unique identifier, being a unique identifier that wholly or partly identifies a motor vehicle, vessel or trailer for registration under a law of any jurisdiction, for the purpose of disguising or misrepresenting the identity of a motor vehicle, vessel or trailer, (e) the registration, in this or any other jurisdiction, of a stolen motor vehicle, stolen vessel or stolen trailer, or of a motor vehicle, vessel or trailer that has had stolen parts affixed to it, (f) the supply of, or offering to supply, a stolen motor vehicle, stolen vessel or stolen trailer. (3) A person facilitates a car, boat or trailer rebirthing activity if the person – (a) takes, or participates in, any step, or causes any step to be taken, that is part of the activity, or (b) provides or arranges finance for any step that is part of the activity, or (c) provides the premises in which any step that is part of the activity is taken, or allows any step that is part of the activity to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management. (4) A car, boat or trailer rebirthing activity is carried out on an organised basis if – (a) it is planned, organised, structured or otherwise carried out in such a manner as to indicate that the activity is carried out on more than one occasion and involves more than one participant, and (b) it is carried out for profit or gain. (5) In proceedings for an offence against this section, for the purpose of proving that an activity was carried out on an organised basis, or that the accused knew it was carried out on an organised basis, it is not necessary to prove – (a) that the accused knew any of the participants in the activity or that any of the participants knew each other, or (b) that the activity was planned, organised, structured or otherwise carried out under the direction of any particular person or persons or in any hierarchical manner, or (c) that the same participants were involved on each occasion on which the activity was carried out. 1. So far as the other three counts are concerned the relevant provision is as follows – 193A DEFINITIONS In this Part – deal with includes – (a) receive, possess, conceal or dispose of, or (b) bring or cause to be brought into New South Wales, including transfer or cause to be transferred by electronic communication, or (c) engage directly or indirectly in a transaction, including receiving or making a gift. … proceeds of crime means any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. … 193B MONEY LAUNDERING (1) … (2) A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence. Maximum penalty--imprisonment for 15 years. (3) … (4) … 1. Although s193B is headed "money laundering" the definition of "proceeds of crime" makes it clear that it is not confined to the possession of or dealing with money. 2. The impugned cars and car parts that are alleged to have been involved in count 1 were discovered by police on the execution of search warrants on 29 July 2014 at a warehouse in Alexandria and on 6 August 2014 at residential premises in Concord. The lighting towers and Ferrari respectively referred to in counts 2 and 3 were found at the former location and the Commodore referred to in count 4 at the latter. Aside from descriptions of those items and the improper changes and proof of theft, the case focused essentially on the evidence which, the prosecution submitted, linked Mr Elkhouri with them in ways that demonstrated his guilt of the charged offences. 3. The Crown must prove beyond reasonable doubt that Mr Elkhouri knowingly facilitated a car rebirthing activity that was carried out on an organised basis. In respect of the particular matters specified in s154G(2) it is alleged that he did one or more of the following things, showing that he was involved in car rebirthing: receiving stolen motor vehicles; interfering with unique identifiers for the purpose of disguising or misrepresenting the identity of a vehicle (or parts of a vehicle); or supplying or offering to supply stolen motor vehicles. Pursuant to s154G(3) the Crown alleges Mr Elkhouri facilitated the rebirthing activity by allowing steps that were part of the activity to be taken in premises of which the accused had care, control and management. The steps alleged to have been taken by the accused are one or more of those listed above. The Crown's opening was somewhat wider. It was submitted that the accused and his sister "ran this business together in which they sold partially stripped vehicles and car parts". 4. Under s154G(4) a car rebirthing activity is carried out on an organised basis if the activity is carried out on more than one occasion, involves more than one participant, and is carried out for profit or gain. 5. I should state at the outset that there can be no doubt that car rebirthing activities were carried out at one time or another involving interference with identifying features of vehicles and parts that were found at the warehouse and Concord. Whether those activities were actually carried out at either place is unproved, though it is at least reasonably possible that this was so to a greater or lesser extent. When those activities occurred is (relevantly) incapable of determination. (I return to the question of timing in due course.) It is clear that the items alleged to have been stolen were actually stolen, and the issue is, essentially, what Mr Elkhouri knew about this. The Crown alleges that Mr Elkhouri and his sister Lilian Elkhouri were jointly involved in the car rebirthing activity and had joint possession and control of the vehicles and parts found during the searches of the warehouse on 29 and 30 July 2014 and the premises at Concord on 6 August 2014. 6. There was no direct evidence of any transactions connecting Mr Elkhouri with the acts forming any of the elements of any of the offences. The Crown case is a circumstantial one, which relies on the inferences said to be available from a number of proved, indeed uncontroversial, facts. The Crown case can be understood as consisting of a collection of strands which, it is submitted, combine to make a cable that establishes Mr Elkhouri's guilt of each count beyond reasonable doubt. 7. It can be accepted that the prosecution has proved facts that are consistent with Mr Elkhouri having care, control and management of the warehouse and that this was also possibly true of Concord. The knowing storage of altered parts pending further relevant activity will suffice to prove the offence. The essential problem in this respect is whether the evidence goes further than mere consistency to proof beyond reasonable doubt. An additional problem is the necessity to establish that Mr Elkhouri had care, control or management of the premises in which any step that is part of the activity is taken when there is no evidence as to when or where the improper interference occurred and no direct evidence that he was aware of any particular interference. A cognate problem is whether there is proof to the requisite standard that Mr Elkhouri's involvement occurred within the time frame specified in each charge.