Friday, February 21, 2014
And what are our fees from crime?
What does a judge need to consider at trial if a defendant’s evidence is not accepted?
“The case in which a defendant advances a defence which may well be disbelieved imposes a particularly acute duty on the trial judge. It is essential that he consider carefully what the position will be if the defendant's account is indeed rejected. Sometimes the result will be that the only proper verdict will be guilty, and indeed sometimes this may be expressly conceded on the defendant's behalf. But very often it will be necessary for the jury to be required to apply its mind to the remaining steps to conviction, and it is especially important that it be reminded that it must do so because defence counsel will normally not have addressed other possible obstacles to conviction which are inconsistent with the case being advanced by the defendant in evidence. A simple instance is the defendant accused of murder who advances an alibi which is seriously damaged in cross examination of the several witnesses, but whose actions, assuming that he was indeed the culprit, may not amount to murder, for example because there is a genuine decision to be made about intent. There are many other examples.”
Holt v Her Majesty’s Attorney General on behalf of the Queen (Isle of Man)  UKPC 4 (19 February 2014) at . Compare Huynh v The Queen  HCA 6 discussed here on 15 March 2013 for situations where getting to the real issues in a complex case is appropriate. And on considering defences not expressly relied on, see R v Pickton 2010 SCC 32, discussed here on 6 August 2010.
Holt will be of interest to all lawyers who receive funds or property from clients. A cynic might say that the creation of money laundering and proceeds of crime offences gives the Crown an unfair advantage in the scramble for revenue. But we who take a more balanced view would agree that it would not be possible to prevent offenders from benefiting from their offences if lawyers were exempt from proceeds of crime laws.
In Holt the key issue was whether the defendant, a lawyer, had known or suspected that funds were the proceeds of crime. This requirement of knowing or suspecting is commonly found in proceeds of crime legislation.
“ ... It would not be necessary for the appellant to know that the law labelled what occurred a crime, still less which crime, if she knew or suspected facts which amounted to a crime of some kind. But it was necessary for the prosecution to prove that she had applied her mind to the circumstances in which the money had been produced. Actual knowledge or suspicion that there was criminal conduct of some kind involved is an essential element of the offence. It was not enough to show that she ought to have realised that some crime, such as theft or obtaining by deception, might well have been involved. Knowledge or suspicion that to receive the money ... would be irregular, in the sense of a breach of trust, is not automatically the same as knowledge or suspicion that a crime is involved.”
And in the circumstances here, even agreeing in cross-examination that she knew the money couldn’t have “honestly” been obtained by the client, did not necessarily amount to admitting knowledge of more than an irregularity that was less than a crime. The issue of knowledge or suspicion that the money was proceeds of crime had not been left to the jury in this trial, the defence having been absence of knowledge of the source of the money rather than its quality as proceeds of crime.
“ It is no answer to this defect [omission of a direction on the need to prove knowledge or suspicion that the money was proceeds of crime] that the appellant was not advancing this defence, either in her evidence or in counsel's speech on her behalf. It is precisely because she was advancing a different, and as the jury found untruthful, version of events, that neither she nor counsel did so. It is precisely in these circumstances that the duty falls upon the judge to address the elements of the offence if, as can be seen to be at least possible, the jury rejects her evidence.”