Austin, R. v, Court of Appeal - Criminal Division, June 27, 2013, [2013] EWCA Crim 1028

Resolution Date:June 27, 2013
Issuing Organization:Criminal Division
Actores:Austin, R. v

Neutral Citation Number: [2013] EWCA Crim 1028Case No: 2011/06524/ C1IN THE COURT OF APPEAL (CRIMINAL DIVISION)ON APPEAL FROM WINCHESTER CROWN COURTHis Honour Judge Cutler CBET20097029Royal Courts of JusticeStrand, London, WC2A 2LLDate: 27/06/2013Before:PRESIDENT OF THE QUEEN'S BENCH DIVISIONMR JUSTICE IRWINandMR JUSTICE MALES- - - - - - - - - - - - - - - - - - - - -Between:- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Miss Sasha Wass QC & Mr R Leach (instructed by The Crown) for the RespondentMr Tim Owen QC (instructed by Hughmans Solicitors) for the AppellantMr Hugo Keith QC instructed by the Attorney GeneralHearing dates: 1 November 2012, 17 December 2012, 25 March 2013Written Submissions Received 4 and 7 April 2013- - - - - - - - - - - - - - - - - - - - -Approved JudgmentMr Justice Irwin: 1. On 21 October 2011 in the Crown Court at Winchester, after a trial before HHJ Cutler CBE and a jury, the appellant was convicted of conspiracy to conceal the proceeds of criminal conduct (count 1) and conspiracy to convert the proceeds of criminal conduct (count 3). He was acquitted of one count of conspiracy to transfer the proceeds of criminal conduct (count 2) and another (count 10) was ordered to lie on the file in the usual terms.2. On 12 December 2011 he was sentenced to 8 years imprisonment on each count (concurrent). On 13 January 2012 the sentence was varied to reflect an error in respect of the credit to be allowed for time spent on remand. The varied sentence was 5 years and 248 days imprisonment. It was directed under s240 of the Criminal Justice Act 2003 that 53 days spent on remand were to count towards sentence. A Serious Crime Prevention Order was made for a period of 5 years and he was disqualified from being a company director for 10 years. Co-accused3. At an earlier trial in July 2011, Raymond Jewitt and Anthony Heald were convicted of 3 counts of conspiracy to conceal the proceeds of criminal conduct (counts 1-3). They were sentenced to a total of 5 years and 3 years imprisonment respectively. Both abandoned applications for leave to appeal against conviction following refusal by the single judge. Leigh Greest pleaded guilty to one count of conspiracy to conceal the proceeds of criminal conduct (count 1) and was sentenced to 2 years imprisonment. 4. Joseph White, Sanjib Mozumder and Leon Baum were acquitted of conspiracy to transfer the proceeds of criminal conduct.Overview of the Case5. The Appellant appeals against conviction by leave of the Full Court granted on 17 December, 2012 (President Queen's Bench Division, Irwin and Kenneth Parker, JJ. 6. The case involved the laundering of (part of) the proceeds of a theft from Commerzbank in Frankfurt, Germany. The prosecution case was that on 15 August 2000, $15,583,128.57 was stolen by two of the bank's employees, Matthew Holmes and Donald Somers. The theft took place by way of an electronic transfer made from the Commerzbank account in favour of Wolpert Consultants, who held an account at a bank in Amsterdam. 7. The error was not detected until 21 October 2001. Following a police investigation, it was discovered that on 30 August 2000 $10,129,033 was transferred from Wolpert Consultants to accounts in Australia which were controlled by Roger Bryer, an Australian citizen and a prime mover in laundering the stolen money. Commerzbank money was moved from Australia to bank accounts in Cyprus and Jersey for the benefit of Equity Holdings, a company controlled by the appellant and his co-accused Mozumder. From Equity Holdings the money passed to a firm of solicitors in London called Georgiou Nicholas and was used to purchase property for the benefit of the appellant (and Mozumder) through their firm, Austin Daniels Estate Agents. Between January and September 2001, eight payments totalling £1.6 million passed through the solicitors. Seven were made through Equity Holdings in Cyprus and the eighth through a company called IPG. 8. In addition to the actual movement of money into accounts associated with the appellant, the prosecution also relied upon a document (``Statement General July 30th 2001'') seized from Bryer's home address in Australia, which identified those who were receiving the stolen money. It suggested that the appellant was to receive in excess of Aus $12 million of the funds that had been transferred to Australia from Wolpert. 9. The defence case was that the appellant was investing the money on behalf of Bryer and had no knowledge that the money was stolen. He accepted receiving money through Equity Holdings for this purpose. He denied receiving any other stolen Commerzbank money and denied being the beneficiary referred to in the document seized from Bryer's home. 10. The issue for the jury was whether the appellant handled money which he knew represented criminal property.Background: the Cocaine Case11. The appellant was not arrested for the money-laundering offences until July 2008. An investigation into his activities had begun in 2002 in relation to drugs, and in August 2003 he was arrested in relation to the importation of cocaine. He was convicted after trial in May 2006 and in June 2006 sentenced to 18 years imprisonment. In October 2009 the conviction was quashed on appeal for non-disclosure of relevant material and a retrial was ordered. The appeal was unopposed. In September 2010, prior to retrial on the cocaine indictment, the prosecution offered no evidence. 12. It is relevant to consider the process by which the cocaine case came to an end in a little more detail. The Appellant was granted leave to appeal by the CACD on 16 May 2008. There was a hearing in July 2009, following the procedure laid down in R v McDonald [2004] EWCA Crim 2614, leading to open and closed judgments: see R v Austin and others [2009] EWCA Crim 1527. There was a subsequent hearing on 2nd October, leading to open and closed judgments on 9 October 2009: see R v Austin and others [2009] EWCA 1960. The issue in this appeal was a failure of disclosure in relation to intercept evidence bearing on the Appellant's involvement in the cocaine importation. Special counsel, Hugo Keith QC, was appointed early in 2009 and represented the Appellant at both appeals. The findings of the court were summarised in paragraphs 18 to 24 of the open October judgment, and it is not necessary to repeat them here. As that judgment sets out, on 15th September 2009, the Court received notice that the Crown no longer intended to resist the appeal, but would seek a re-trial. Full reasons for that stance were placed in a closed document, which was produced to the Court and to Special Counsel before the October appeal. After consideration, the Court granted a re-trial.13. On 29th April 2010, the Crown informed the defence that a full review of the unused material had been performed by Jonathan Laidlaw QC, who had been retained as leading counsel for the Crown. The Crown also informed the defence that they no longer intended to rely on the relevant intercept evidence at the re-trial. Although the Crown anticipated there would be renewed arguments of abuse of process, and indicated that open and closed processes would be required before the trial judge (Roderick Evans J), the Crown asserted that the decision no longer to rely on the intercept evidence meant that any possible prejudice had fallen away. On 29th July 2010, a Note was served on the defence, indicating that it was proposed to place an advice by Mr Laidlaw and supporting documents before the trial judge, addressing disclosure and any possible abuse of process. Michael Birnbaum QC had been appointed as special counsel at the request of the judge, so that the material and the arguments based on it could be addressed on behalf of the Appellant. However, no such process took place, because on 3rd August 2010, the Crown informed the defence that they had decided to drop the case. There was therefore never any hearing within the ``cocaine'' proceedings at which the abuse arguments and the disclosure issues in that case were substantively addressed. Verdicts of not guilty on these matters were recorded on 3rd September 2010.Pre-trial Submissions in the Money Laundering Trial14. HHJ Cutler CBE was the judge assigned to try the money-laundering case, and he dealt with the preliminary stages of the matter in advance of the trial. Before the trial the defence sought to argue abuse on the basis that the two prosecutions, for cocaine importation and for money-laundering, involved the same police officers, particularly the same disclosure officers, and the same counsel. There were said to be overlaps in the material that the prosecution intended to rely on. It was argued that the court ought to examine the prosecution's disclosure failings in the cocaine case and consider whether the appellant could have a fair trial in the instant case. It is necessary to consider the sequence of applications and surrounding events.9 May 201115. No transcript of this hearing was available to us, however the essential points were agreed to be accurately recorded in notes made by the Appellant's solicitor. Mr David Lederman QC, then leading counsel for the Appellant began by asking for disclosure of the material which had led to the quashing of the cocaine convictions. The Crown's response was that this was inappropriate, since there was nothing in the material reviewed which was discloseable, since nothing would serve to undermine the prosecution case or support the defence case on abuse relevant to the money-laundering trial. In the course of submissions, junior counsel for the Crown apparently indicated to the judge that ``We may invite the court to re-read the closed judgment...'', suggesting that it was already known the judge had done so.16. The Crown indicated that further material had come to light following the appeal in 2009, a reference we have no doubt to the...

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