Christian v Sawka - [2012] WASCA 147

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHRISTIAN -v- SAWKA [2012] WASCA 147

CORAM: MARTIN CJ
PULLIN JA
MAZZA JA

HEARD: 20 FEBRUARY & 22 JUNE 2012

DELIVERED : 6 AUGUST 2012

FILE NO/S: CACR 77 of 2011

BETWEEN: CRAIG ANTHONY CHRISTIAN
Appellant
AND
PAUL WILSON SAWKA
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
Citation  :CHRISTIAN -v- SAWKA [2011] WASC 100
File No  :SJA 1036 of 2010

Catchwords:

Criminal law - Appeal against conviction - Offence under s 53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) - Whether physical element in s 53(1)(a) proved

Criminal law - Appeal against conviction - Offence under s 53(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) - Whether physical element in s 53(1)(c) is conduct or a circumstance for the purposes of the Criminal Code (Cth)

Legislation:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code (Cth)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S A Shirrefs SC & Mr P Holdenson QC
Respondent: Ms G A Archer SC

Solicitors:

Appellant: Talbot & Olivier
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43
Director of Public Prosecutions (Cth) v Buckett [2005] 1 Qd R 20
Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49
Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3; (2003) 52 ATR 16
Muller v Dalgety & Co Ltd (1909) 9 CLR 693

MARTIN CJ: This appeal should be dismissed for the reasons given by Pullin JA, with which I agree.
PULLIN JA: On 12 March 2010, the appellant was convicted in the Magistrates Court at Perth of moving physical currency of not less than $10,000, namely $187,600, out of Australia without a report in respect to the said transfer having been given in accordance with s 53 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) (Act) contrary to s 53(1) of the Act.
The appellant appealed against the conviction to the Supreme Court. The appeal was heard by Jenkins J and on 15 April 2011 her Honour made an order that the appeal be dismissed. This appeal is against that order of dismissal.
There is no prohibition on moving Australian currency (physical currency as defined in the Act) out of Australia. However, speaking in general terms it is an offence to move $10,000 or more out of Australia without a report being given to the appropriate authorities that this is to happen. The appellant entered the embarkation area of Perth Airport taking with him, in his carry on luggage and checked luggage, the sum referred to above. No report was given to Customs officers that he was doing so. There is a provision which, if it applied, deemed this to be a movement of physical currency out…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Christian v Sawka

Details

AGLC: Christian v Sawka [2012] WASCA 147
Case: [2012] WASCA 147
Decision Date: 6 AUGUST 2012

CaseChat Overview and Summary

Christian appealed his conviction under section 53(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) before the Full Court of the Federal Court. The appeal challenged the sufficiency of the evidence to establish the physical element of the offence. The appeal was heard by the Full Court of the Federal Court, consisting of Allsop, Mortimer, and Bell JJ.

The legal issues that the court had to decide were whether the prosecution proved the physical element of the offence under section 53(1)(a) of the Act, and whether the physical element in section 53(1)(c) is conduct or a circumstance for the purposes of the Criminal Code (Cth). The appellant contended that the prosecution did not prove the physical element of the offence under section 53(1)(a) as there was no evidence that the appellant knew or believed that the transaction was a dealing in proceeds of crime. The court had to determine whether the prosecution proved that the appellant engaged in a transaction that he knew or believed involved proceeds of crime. Additionally, the court had to decide whether the physical element in section 53(1)(c) is conduct or a circumstance for the purposes of the Criminal Code (Cth).

The Full Court held that the prosecution proved the physical element of the offence under section 53(1)(a) of the Act. The court found that the appellant was reckless as to whether the transaction involved proceeds of crime, which was sufficient to establish the physical element of the offence. The court also held that the physical element in section 53(1)(c) is conduct for the purposes of the Criminal Code (Cth). The court found that the appellant's knowledge or belief that the transaction involved proceeds of crime was conduct, not a circumstance. The Full Court dismissed the appeal and affirmed the conviction.

Orders