Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205 Hearing dates: 28 July 2011 Decision date: 06 September 2011 Before: Basten JA at 1; Simpson J at 42; Garling J at 78 Decision: (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. Catchwords: CRIMINAL LAW - conviction appeal - dealing with money intended to become an instrument of crime - whether same conduct can constitute the intended crime - identification of intended crime - manner in which charge particularised - Criminal Code (Cth), s 400.5 WORDS & PHRASES - "instrument of crime" - "deals with money" - "physical elements" - Criminal Code (Cth), ss 400.5(1), 400.1(1) Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Code Act 1995 (Cth), ss 2.2, 4, 5, 400.1, 400.2, 400.3, 400.4, 400.5, 400.6, 400.7, 400.8, 400.9, 400.12, 400.13; Div 400, Ch 10 Financial Transaction Reports Act 1988 (Cth), ss 3, 4, 7, 31 Cases Cited: Ansari v R [2007] NSWCCA 204; 70 NSWLR 89 Ansari v The Queen [2010] HCA 18; 241 CLR 1299 Arora v Commonwealth Director of Public Prosecutions [2011] NSWSC 552 He Kaw Teh v The Queen [1985] 43; 157 CLR 523 R v Saengsai-or [2004] NSWCCA 108; 61 NSWLR 135 Sloggett v Adams (1963) 70 WN (NSW) 206 Category: Principal judgment Parties: You Qing Chen - Appellant Director of Public Prosecutions (Cth) - Respondent Representation: Counsel: Mr J L Glissan QC/Mr A G Jamieson - Appellant Mr N J Adams/Mr M Hassall - Respondent Solicitors: Pryor Tzannes and Wallis - Appellant Commonwealth Director of Public Prosecutions - Respondent File Number(s): CCA 2006/16537 Decision under appeal Date of Decision: 2010-11-03 00:00:00 Before: Phegan ADCJ File Number(s): 2006/16537 Judgment 1BASTEN JA : On 10 June 2010 the appellant was found guilty by a jury in the District Court of an offence under the Criminal Code Act 1995 (Cth) of dealing with money intended to become an instrument of crime, the value of the money being in excess of $50,000. On 3 November 2010 he was convicted and sentenced to a period of imprisonment for 2 years, 6 months to date from 25 October 2010. His Honour also fixed a non-parole period of 1 year, 6 months which is due to expire on 24 April 2012. In addition, the appellant was ordered to pay a fine of $25,000. 2On 21 March 2011 an application for leave to appeal against conviction and sentence was filed. By that stage he had served almost 5 months of the 18 month non-parole period. The notice contained six grounds of appeal against conviction. On the same date, 21 March 2011, written submissions were filed in support of the appeal, although neither the grounds nor the submissions adequately articulated the two bases upon which senior counsel for the appellant ran the appeal against conviction. Nevertheless, and quite properly in the circumstances, the Commonwealth Director of Public Prosecutions raised no objection to the first ground as then identified. 3For reasons set out below, the first ground has been made good and the conviction must be set aside. The appellant is entitled to an acquittal. Accordingly, it is not necessary to address the second ground or the separate challenge to the sentence. 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: * (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." 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. 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. 400.13 Proof of other offences is not required (1) ... (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." (The definition of "instrument of crime" and s 400.2(1) are reproduced in the form in which they stood in 2003 and 2004, the period during which it was alleged that the appellant committed the offence. They were amended in 2010 and 2006 respectively to take their present form. The variations are immaterial to this appeal.) 53The appellant was not charged with an offence involving the proceeds of crime. There was no suggestion that the money with which he dealt was otherwise than legitimately obtained through a business that he conducted. The offence with which he was charged was that identified in s 400.5(1)(b)(ii). It was an offence containing the following elements: * that the appellant dealt with money; * that the appellant intended that the money would become an instrument of crime; * that, at the time of the dealing, the value of the money was $50,000 or more. 54Since the prosecution allegation was that the "dealing" was constituted by multiple instances of the appellant engaging in the conduct alleged, by s 400.12(2), the value of the money was taken to be, not the amount involved in any individual transaction, but the total of the money involved in the various transactions upon which the Director relied. 55It is now necessary to identify the manner in which the Director opted to put his case. As can be seen from the definition of "deals with money ..." in s 400.2, dealing with money can be constituted by a number of forms of conduct. They include receiving, possessing, concealing and disposing of money (s 400.2(1)(a)(i)); importing or exporting money (s 400.2(1)(a)(ii)); and engaging in a banking transaction relating to money (s 400.2(1)(a)(iii)); the legislative references being references to the provisions as in force at the date of the offences. These are the available physical elements of an offence of money-laundering. 56In his opening to the jury, the Crown prosecutor unequivocally elected to particularise as the physical element of the offence upon which the Director relied "engaging in a banking transaction relating to money". The transcript records that he said: " ... the first physical elements [sic] of the indictment is that the accused dealt with money. ... The definition that deals with money provides that it includes engaging in a banking transaction relating to money or other property. So it is relatively straight forward in this case and it is relatively clear what the Crown is alleging here in terms of how the Crown makes it [sic] case, that Mr Chen dealt with money. ..." 57Although, by s 400.13(2), it was not necessary that the Director prove an intention on the part of the appellant to commit any particular crime, the Crown prosecutor nevertheless identified as the primary allegation an offence against s 31 of the Financial Transaction Reports Act 1988 (Cth) ("the FTR Act") as the crime of which he asserted the appellant intended the money to become an instrument. That is an offence shortly known as "structuring", a shorthand term that I will adopt. Section 31 is in the following terms: "(31) (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; or (iv) would give rise to exempt cash transactions. (2)... (3)..." 58For present purposes, it is sufficient to note that a 'non-reportable cash transaction" is a cash transaction involving an amount less than $10,000: see the explanation in Arora v Commonwealth Director of Public Prosecutions [2011] NSWSC 552 at [9]. A cash transaction in an amount of $10,000 or more is a "significant cash transactions", and attracts mandatory reporting provisions: s 7, FTR Act. 59The offence of structuring is committed where two or more cash transactions, each involving an amount less than $10,000, are made in circumstances that warrant a conclusion that they are so structured in order to avoid the mandatory reporting conditions. A structuring offence is an indictable offence. (As set out in the judgment of Basten JA, the Director adopted an alternative scenario, a proposition that the crime of which the appellant intended the money to become an instrument was an unspecified taxation offence. Having regard to the view to which I have come in relation to the assertion concerning a structuring offence, it is unnecessary to delve further into the difficulties associated with that proposition: see Ansari v The Queen [2010] HCA 18; 241 CLR 1299 at [43].) 60The language in which the physical element of an offence against s 31 is expressed is significant. It is expressed in the passive voice. The physical element of an offence of structuring is being a party to two or more non-reportable cash transactions with the requisite characteristics. I repeat that the physical element of an offence may be: * conduct; * a result of conduct; or * a circumstance in which conduct or a result of conduct occurs (s 4.1(1) of the Code), and "conduct" may be: * an act; * an omission to perform an act; or * a state of affairs (s 4.1(2)). 61Being "a party to a transaction or transactions" may be seen to be conduct in the conventional sense; but to my mind, it fits more readily into the concepts of "a result of conduct" or "a state of affairs" as envisaged in the extended meaning given to "conduct" by the definition. See the judgment of Brennan J (as he then was) in He Kaw Teh v The Queen [1985] HCA 43; 157 CLR 523, and the discussion thereof by Bell J, when a member of this Court, in R v Saengsai-or [2004] NSWCCA 108; 61 NSWLR 135 at [58] - [60]. Those physical elements are not coextensive with the physical element(s) of a money-laundering offence. 62It was not necessary that the Director opt for "engaging in a banking transaction" as the physical element of the offence of money-laundering on which he relied. It would have been sufficient to have opted for "possession" of the money, immediately before engagement in the banking transaction: see Arora . Had he done so, the anomaly identified by Basten JA (at [20]) would not have arisen. However, the Director took the course that he did, and cannot now avoid the consequence of that particularisation. 63Having regard to the various statutory provisions and definitions, and the manner in which the Crown prosecutor stated the Director's case to the jury, what was alleged against the appellant could accurately be formulated as follows: "Between 1 January 2003, and 30 September 2004 the appellant engaged in a series of banking transactions relating to money, to a total value of $50,000 or more, intending that the money the subject of the transactions would be used in the commission of, or to facilitate the commission of, a structuring offence contrary to s 31 of the FTR Act". 64As I understand his Honour's judgment, the flaw Basten JA finds in the manner in which the Director put his case lies in the asserted identity of what was alleged to have been the physical element of the money-laundering offence (engaging in a banking transaction, or a series of banking transactions) and the physical element of the crime (structuring) of which the appellant was alleged to have intended the money to be the instrument (being party to, or engaging in, two or more banking transactions of the requisite value) (at [20]). 65That was precisely the argument that was advanced in Arora, which I found it unnecessary to decide, because, at the point which that prosecution had reached, it was open to the Director to revise his particularisation of "dealing" in order to rely on the possession of money, rather than the engagement in a banking transaction. That avoidance is not here open, and, as I have said, the Director is bound by the way his case was put to the jury. 66Basten JA accepts a "dichotomy" identified by me in Ansari (NSWCCA) (at [15]) in relation to the "pairs of offences" created in each relevant section of Div 400 of the Code. That dichotomy is temporal, and concerns offences of (put briefly) dealing in money that is the proceeds of (past) crime; and dealing in money intended to (or that might) become the instrument of (future) crime. That dichotomy was (I hope) apt in the circumstances of the issues that arose in Ansari . It was not intended to be, or at least can now be seen not to be, exhaustive or definitive. The dichotomy is inadequate to deal with offences involving multiple transactions undertaken over a period of time. But that is not only because the banking transactions constituting the "dealing" (ie the physical element of the money-laundering offence) were undertaken over a period of time. It is to do with the nature of the offence of structuring. 67I am now of the view that there is a third alternative to those I proposed in Ansari . The third alternative arises where the crime of which it is said the money is intended to be an instrument is an offence of a continuing, or accumulating, or ongoing, or incremental, nature. Section 31 of the FTR Act creates an offence of that kind. A structuring offence against s 31 may be complete when a person has been party to a second non-reportable cash transaction having the requisite characteristics; but there is no upper limit on the number of such transactions that may together constitute a single offence. In alleging that a person has committed an offence against s 31, the Director is not confined to alleging that the offence is constituted by two transactions: he may allege (and prove) a single offence constituted by multiple - any number of - transactions. Equally, in alleging that a person contemplates a crime of structuring (for the purpose of proving a money-laundering offence) the Director is not confined to alleging a contemplated offence constituted by two transactions. The contemplated structuring offence may be constituted by multiple (envisaged) transactions. 68While an offence of structuring might not be seen to be "continuing" in the same sense as, for example, a conspiracy, or an offence of possession of prohibited items, I perceive an analogy. In Sloggett v Adams (1963) 70 WN (NSW) 206 at 208, Street CJ said: "The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me is one which was prescribed in Ellis v Ellis [(1896) P 251 at 254], by Sir Francis Jeune, who said, 'the test whether an offence is to be treated in law as continuing is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue'." 69Although no consideration appears to have been given to the analysis of what the Director intended to allege, it is, in my opinion, clear that what he alleged (and proved) was that the appellant contemplated the structuring offence within the same temporal parameters as the money-laundering offence pleaded in the indictment - that is, between 1 January 2003 and 30 September 2004. The structuring offence upon which the Director relied was not complete until the last of the banking transactions in which the appellant engaged. That is not to say that the Director could not have prosecuted, and prosecuted successfully, at an earlier time. But it was open to him to treat the contemplated structuring offence as one constituted by ongoing or cumulative or incremental transactions. The element of futurity in s 400.5 (and the parallel sections of Div 400) is as to the use that will be made of the money (or property). It is not essential that the entirety of the crime of which it is intended will (or as to whether there is a risk that it will) become an instrument is in the future. It may be intended that it will become an instrument of crime that is, at the time of the dealing, in the process of commission. It is in this respect that the "dichotomy" mentioned in Ansari is non-exhaustive. 70The money involved in each banking transaction could have become an instrument of the ongoing structuring offence. The physical elements of the money-laundering offence and the physical elements of the contemplated structuring offence, could be seen to be of the same or similar kind, but they were not the same conduct: each banking transaction involved a subsequent increment to the contemplated structuring offence. That is on the assumption that the physical element of the structuring offence is conduct of engaging in the banking transactions. The point is stronger if the physical element of that offence is either the result of conduct (the banking transaction) or a state of affairs (being a party to the relevant number of transactions). 71If that alone is unpersuasive, it is supported by the expansive definition of "instrument of crime" in s 400.1. Money is an instrument of crime if it is, inter alia , used to facilitate the commission of an offence against a law of the Commonwealth. In my opinion, having regard to the jury verdict, it is clear that the money the subject of each banking transaction was intended by the appellant to be used to facilitate the accumulating or ongoing incremental offence of structuring. 72I therefore do not accept that there was relevant identity of the physical element of the alleged money-laundering offence and the physical element of the alleged contemplated structuring offence. 73Even if that were wrong, and the physical element of the structuring element offence is taken to be engaging in banking transactions, it is still not co-extensive with the physical element of a money-laundering offence. A single banking transaction does not, and cannot, constitute the physical element of a structuring offence: there is no physical element of the structuring offence unless and until (at least) a second transaction has been completed. 74I appreciate that no offence against s 400.5 was committed by the appellant by any of the individual banking transactions, because none reached the commencement point of $50,000 for an offence against that section (see Basten JA at [18]). That does not mean that no money-laundering offence was involved in those transactions. Each transaction undertaken with the requisite intent constituted a money-laundering offence, against either s 400.7 or s 400.8 (respectively, dealing in money to the value of $1,000 or more, or of any (unspecified) value). It was when the accumulation reached the value of $50,000 that those transactions, together, constituted the offence against s 400.5. 75I do not accept that this analysis is inconsistent with the way in which the Crown case was conducted at trial. I do accept that no specific attention was given to the question of the ongoing nature of the structuring offence. But that the structuring offence on which the Crown relied was made up of multiple transactions is, in my opinion, clear. In opening to the jury, the Crown prosecutor referred to 142 transactions, amounting to just under $1 million. He told the jury that, in 13 of those transactions, it was the appellant himself who physically made the deposits. In his final address, he said (as recorded in the transcript): " ... each and every one of those 13 transactions that were carried out by the accused was in an amount of under $10,000. ... Now the Crown says that is a pretty good starting point for finding that it is reasonable to conclude he acted as he did to avoid those reporting requirements, given the amount of cash that was coming into his company. ... you've heard on a number of occasions that there were no less than 150 transactions carried out by the accused or his associates, whereby money was sent overseas during the charge period that is between 1 January 2003 and 30 September 2004. And of those 150 transactions, no less than 142, including those 13 of the accused, were in amounts of less than $10,000. There must be a system at play here. It's no coincidence that a 142 [sic] out of a 150 [sic] transactions in terms of the sending of money overseas are in amounts of less than $10,000. I suggest to you that you would not accept that evidence; 142 out of 150 I would suggest is relatively obvious evidence that there is a design at play in terms of the selection of a figure below which to send money overseas." (AB 358) 76In summing up his Honour directed the jury to s 31 of the FTR Act and then said: "So to tie all of that together, what s 31 of the [ FTR ] Act is saying is that it is a crime to conduct a series of transfers, two or more, in Australian dollars overseas in a way that it would be reasonable to conclude was conducted for the sole or dominant purpose of ensuring or attempting to ensure that no report would have be [sic] made. Now to tie that together in what I will call 'laymen's language' and the way in which the Crown has quite sensibly presented it to you. What that means is on the Crown case the offence in the indictment, that is the offence of dealing with money with the intention it would become an instrument of crime, is established in this case, because the evidence shows that the accused was engaged in a series of transfers in a manner which had the sole or dominant purpose of avoiding the reporting requirements of the [FTR Act], and that is a crime as defined in that Act." (AB 473) 77I am of the opinion that the appellant's argument on this issue should fail. Ordinarily, that would require consideration of the remaining grounds of appeal as pleaded, and of the application for leave to appeal against sentence. I am highly conscious, however, that this is a minority view, and that, on the opinion of the majority, the appellant is entitled to acquittal, and to release from custody. In those circumstances, it seems to me that the interests of justice are best served by my not taking further time to consider the other grounds of appeal, which would be no more than an academic exercise. 78GARLING J : I agree with the orders proposed by Basten JA. I desire to add some observations of my own. 79The Commonwealth Director of Public Prosecutions charged the appellant with an offence against s 400.5(1) of the Criminal Code Act 1995 (Cth). That offence, "money laundering", is a very serious one, which carries a maximum penalty of 15 years' imprisonment or a fine, or both. 80The Director, on the proved facts, could have charged the appellant with an offence against s 31 of the Financial Transactions Reports Act 1998 (Cth). This offence, "structuring" is less serious than money laundering and carries a maximum of five years imprisonment. 81No doubt, the more serious offence was charged because the Director thought that the criminality of the appellant was such as to warrant imposition of the more serious penalties. 82Unfortunately, the Director has, in proceeding in this way on the facts proved here, not adequately addressed the elements of the more serious offence which are required to be proved. 83Simpson J recorded in Arora v Commonwealth Director of Public Prosecutions [2011] NSWSC 552 at [19], the plaintiff's argument that: "...sub-para (1)(b)(ii) of s 400.3 ...require(s) an intention that the money the subject of the dealing will (that is in the future) become an instrument of crime. But...when the dealing is completed, the offence of structuring is also completed. There is no scope for a crime to be committed in the future. The dealing and the structuring, being, in effect, identical transactions are necessarily simultaneous." 84Although her Honour described the argument as " ... perhaps rest[ing] on a firmer foundation ..." , she did not explicitly accept it, as it was not necessary for the determination of the issues posed in that case. However, I find the logic of that argument, when applied to the facts proved in this case, persuasive. 85Because the terms of s 400.3(1)(b)(ii) are identical, except for the sum of money, to the terms of s 400.5(1)(b)(ii), I am satisfied that the argument as summarised by Her Honour, is entirely apposite in this appeal. 86The attempt by the Director to use acts which constituted the less serious but completed crime of structuring, to prove the necessary elements of the more serious crime of money laundering failed to grapple with the plain meaning of s 400.5 of the Criminal Code , in particular, the future tense expressed in the words "... intends that the money or property will become an instrument of crime ". 87All that the Director proved in this case was that "... the money or other property... " was or had become an instrument of crime, not that it would become an instrument of crime at some time in the future. 88There was no basis in the structuring offence as it was particularised in the trial here, which was capable of proving the more serious money laundering offence. 89The alternative case relied upon by the Director, which has been comprehensively described by Basten JA, was also wholly flawed. As is apparent, relying on the provisions of s 400.13 of the Criminal Code, the prosecution disclaimed the need for it to identify any specific indictable offences which it alleged the appellant intended to commit. 90Nowhere did it name an Act or a provision of an Act that it said was breached. It did not identify anything other than a generalised allegation of tax evasion. 91As far as I can ascertain, the terms of s 400.13 of the Criminal Code have not yet been the subject of any decision of a Court interpreting its meaning. 92The central word that requires interpretation is " particular " when used in the phrase " particular offence ". It is to be remembered that the context for s 400.13 of the Criminal Code is to be drawn from the combination of statutory provisions and surrounding definitions. The definition of " instrument of crime" is here the relevant context. Section 400.1(1) contains this definition of the phrase: "...money or other property ... used in the commission of or used to facilitate the commission of, ... an indictable offence ..." 93In an expanded way, s 400.5 of the Criminal Code requires that the prosecution prove, on the facts of this case: (a)the appellant dealt with money and other property; and (b)the appellant intended that the money or other property would be used in the commission of, or to facilitate the commission of, an indictable offence; and (c)the value of the money and other property was $50,000 or more. 94But s 400.13 of the Criminal Code provides that it is not necessary for the prosecution to establish that there was an intention that a particular offence would be committed, or else that there was an intention that a particular person would commit the offence. 95A distinction can be observed, which is an important one, between the phrase " an indictable offence " and " a particular offence ". The usage of the different terms provides a clear path to the meaning of the latter phrase. 96The prosecution must establish the evidence of a specific intention in the appellant to commit an indictable offence but not a particular offence. 97It is an error to interpret the provisions of s 400.13 of the Criminal Code as a statutory form of excuse which permits the prosecution, proceeding under s 400.5 of the Criminal Code , to refrain from identifying an indictable offence in the commission of which, or the facilitation of the commission of which, the money or other property is constituted as an instrument of crime. 98Unless the prosecution identifies the relevant indictable offence, then it is not open to a jury to conclude that the money or other property constituted an instrument of crime. 99The effect of s 400.13 of the Criminal Code is only to excuse the prosecution from proving a particular offence, that is, an offence particularised by reference to a person, date, time, place, and any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a defence to a specific charge. 100The prosecution in this case made no attempt to identify an indictable taxation offence, which could have made the appellant's conduct come within the relevant definition. On the contrary, the vague assertions of the prosecutor, together with the generality of the submissions to the jury by the prosecutor, and the consequent summing up by the trial judge of that part of the prosecution's case, were cast in such a way that it was not open to the jury to convict the appellant on that alternate basis. 101Had careful attention been be paid to the terms of the more serious charge and the elements required to be proved, then either the particulars of the money laundering charge may have been different, or else only the structuring offence would have been proceeded with. It is the prosecution's failure to address these matters which means that the appeal must be upheld and the orders proposed by Basten JA made. ********** 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