Jeremy Gans, ‘Is Every Crook a Money Launderer? Milne v The Queen‘ (5 March 2014).

The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal, which dismissed an appeal against convictions and sentences for money laundering and dishonesty in relation to a scheme to avoid capital gains tax. The NSWCCA rejected multiple challenges to each conviction and sentence, including whether an exchange of shares as part of the scheme could sustain a conviction for money laundering. As applied to this exchange, Section 400.3(1)(b)(ii) of the Criminal Code 1995 (Cth) required that one set of exchanged shares were used as an ‘instrument of crime’. The appellant’s single ground of appeal was that the NSWCCA erred in defining ‘instrument of crime’ in s 400.1, specifically in interpreting ‘facilitate’ in the phrase ‘used to facilitate the commission of an offence’ as meaning ‘make easier’.

The High Court unanimously held that ‘use’ in this instance required a separation in time between the exchange and the intended use of the shares, as well as an instrumental connection between the intended use of the shares and the commission or facilitation of money laundering. The disposal of the shares in the exchange did not involve their use within the meaning of the definition. The High Court quashed the appellant’s conviction on the money laundering count and acquitted him on that charge, though he will serve a sentence on a second count that was not challenged before the High Court.