Christian v Sawka
[2012] WASCA 147
•6 AUGUST 2012
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 of Australia. The appellant submitted that a report was not possible because there was no 'approved' form on which to make a report and that absent an 'approved' form he committed no offence. This submission was rejected by the magistrate, rejected by Jenkins J and should be rejected in this court for the following reasons.
Summary of undisputed evidence
On the morning of 23 December 2008 the appellant, his wife and young child were at the Perth International Airport intending to fly to Bali. They had three suitcases, which they checked in, and the appellant had a carry-on bag. When in the embarkation area at the point where Customs officers examine passports, the appellant and his wife and child presented their passports, outgoing passenger cards and boarding passes. The Customs officer to whom they presented these documents for examination pointed out to the appellant and his wife that at least one of the outgoing passenger cards was incomplete as it did not have a tick in either the 'yes' or 'no' box alongside the question on the back of the outgoing passenger card which asked:
Are you taking out of Australia AUD $10,000 or more in Australian or foreign currency equivalent? If answered 'yes' you must complete an International Currency Transfer Report to present with this card.
The officer handed back the outgoing passenger card or cards and the appellant ticked the 'no' box. All three cards then showed the answer as 'no'. The officer then referred the travelling group to customs officer Raymond Fisher who escorted the appellant to an interview room. Mr Fisher told the appellant that he was going to carry out a search and asked if the appellant was carrying any cash. The appellant put his partially open backpack onto the bench. Mr Fisher completely opened it. The appellant pulled out a quantity of cash and said:
There's $30,000 there, 10 for myself, 10 for my son and 10 for my girlfriend, split between us so I don't need to declare it (ts 11/3/10 page 22).
The checked in luggage of the family was brought to where the appellant was being interviewed. The appellant said that the luggage belonged to him and that everything inside it was his. The luggage was then searched. One bag searched was a pink suitcase. Inside that suitcase Mr Fisher saw a layer of clothing. Underneath the layer of clothing he saw a towel which was wrapped around or was inside a plastic sleeve. Inside the plastic sleeve was a quantity of cash. Two other quantities of cash were located in the pink suitcase.
When the money was counted, it was determined that there was $144,250 in Australian currency inside the pink suitcase and $43,350 in Australian currency in the appellant's carry-on bag. The appellant said that he owned the money, that he had won it at the casino and that he intended to give it as gifts to friends and to poor children in Bali.
Mr O'Sullivan produced in evidence a blank form (exhibit C) which he said was 'an example of the report that would need to be filled in should a person tick "yes" on the outgoing passenger card' (ts 12). If it had been completed it would have provided the information required by chapter 24 of the rules made under the Act and referred to below. The respondent conceded that the form had not been approved by the AUSTRAC CEO. The significance of this concession is explained below.
The appellant's no case submission
After the closing of the prosecution case, the appellant applied to have the charge dismissed. The appellant submitted that there was no case to answer because there was no form approved by the AUSTRAC CEO. The magistrate dismissed the application. The appellant's counsel then advised that no evidence would be led on behalf of the appellant. The parties made closing submissions.
The magistrate convicts
The magistrate recorded a conviction after giving ex tempore reasons for doing so. The reasons were brief. The magistrate made findings that the quantity of cash which had been found in the luggage was as set out above, that the appellant was aware of the requirement to declare amounts of cash of $10,000 or more and that the appellant agreed that he had packed all of the moneys. The magistrate said:
[O]nce he went past the module without declaring the moneys the issue of the nature of the report declaration effectively became irrelevant. The fact is that the money was the accused's, he packed it, and he failed to say that he was carrying it.
He found that there was no accident or honest and reasonable mistake and that he was satisfied that the charge was proved beyond reasonable doubt.
The appeal to a single judge of the Supreme Court
The appellant then appealed to the Supreme Court as permitted under s 7 of the Criminal Appeals Act 2004 (WA). The appeal was heard by Jenkins J, who dismissed the appeal. It is not necessary to set out Jenkins J's reasons for decision because the arguments which Jenkins J dealt with and which were repeated in this court all turned upon the correct construction of the legislation which bears upon the offence. On the construction preferred by the appellant, the appellant would not be guilty. On the construction preferred by the respondent, the appellant was properly convicted.
The appeal to this court
Although there are four grounds of appeal, there is one central point on which the appellant relies. In written submissions Mr Shirrefs, senior counsel for the appellant, identified the point in the following way:
It is implicit that s 53 contemplates that an 'approved form' exists otherwise s 53(8) can never be complied with and every person moving not less than $10,000 out of Australia commits an offence against s 53(1). It is submitted therefore that it is essential in a prosecution for an offence against s 53(1) for the prosecution to prove the existence of an approved form, irrespective of whether the accused made any report.
Relevant provisions of the Act
Section 53 of the Act provided that:
(1)A person commits an offence if:
(a)either:
…; or
(ii)the person moves physical currency out of Australia; and
(b)the total amount of the physical currency is not less than $10,000; and
(c)a report in respect of the movement has not been given in accordance with this section.
Penalty: Imprisonment for 2 years or 500 penalty units, or both.
(2)Strict liability applies to paragraph (1)(c).
…
(8)A report under this section must:
(a)be in the approved form; and
(b)contain such information relating to the matter being reported as is specified in the AML/CTF Rules; and
(c)be given to the AUSTRAC CEO, a customs officer or a police officer; and
(d)comply with the applicable timing rule in subsection 54(1).
Section 54 of the Act provides that the applicable timing rule for the movement of physical currency out of Australia is when the person goes to and reaches a place at which customs officers examine passports.
The Act s 5 contains the following relevant definitions:
(a)'approved' means approved by the AUSTRAC CEO, in writing, for the purposes of the provision in which the term occurs;
(b)The phrase 'move physical currency out of Australia' has the meaning given by s 57.
Section 57 reads:
(1)This section sets out the 2 situations in which a person moves physical currency out of Australia.
(2)For the purposes of this Act, a person moves physical currency out of Australia if the person takes or sends the physical currency out of Australia.
(3)For the purposes of this Act, if a person:
(a)arranges to leave Australia on an aircraft or ship; and
(b)for the purpose of leaving Australia, goes towards an aircraft or ship through an embarkation area; and
(c)either:
(i)takes physical currency into the embarkation area; or
(ii)has physical currency in his or her baggage; and
(d)does not give a report about the physical currency when at the place in the embarkation area at which customs officers examine passports;
the person is taken to have moved the physical currency out of Australia.
Section 229 of the Act authorises the AUSTRAC CEO to make rules (the AML/CTF Rules) prescribing matters required or permitted by any other provision of the Act to be prescribed by the AML/CTF Rules. The AUSTRAC CEO made the AML/CTF Rules pursuant to s 229. Chapter 24 of the AML/CTF Rules specified the information which had to be given for the purposes of s 53(8)(b) of the Act.
Exhibit C in the proceeding was a form headed 'Cross Border Movement - Physical Currency $10,000 or more'. It contained the Australian coat of arms and the words 'Australian Government' and 'AUSTRAC' printed on it. If completed by a person, the person would provide the information required by chapter 24 of the AML/CTF Rules. However, it did not contain any statement that it had been approved by the AUSTRAC CEO pursuant to the Act and as mentioned above, the form had not been approved by the AUSTRAC CEO. No other form had been approved.
The appellant referred to two cases, one of which was Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3; (2003) 52 ATR 16. In Knaggs, the alleged failure was to do an act, which the accused was under a duty to perform, namely to lodge a return on an approved form. There was no proof that there was an approved form. On a proper construction of the legislation it was necessary to prove there was an approved form before it could be proven that there was no return in accordance with it. In Director of Public Prosecutions (Cth) v Buckett [2005] 1 Qd R 20, on a proper construction of the legislation, it did not require information to be provided on an approved form. Those cases are merely examples of different results depending on the construction of the different legislation involved in that case. They do not govern the outcome of this case.
Relevant provisions of the Criminal Code (Cth)
Before considering the elements of the offence, it is necessary to refer to some provisions in the Criminal Code (Cth) (Code).
Section 3 reads:
3.1Elements
(1)An offence consists of physical elements and fault elements.
(2)However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3)The law that creates the offence may provide different fault elements for different physical elements.
If the law creating the offence does not specify a fault element for a physical element consisting only of conduct then intention is the fault element for that physical element. See s 5.6(1) of the Code. If the law creating the offence does not specify a fault element for a physical element consisting of a circumstance or a result of conduct then recklessness is the fault element for that physical element. See s 5.6(2) of the Code. Section 6.1(2) provides that if a law that creates an offence provides that strict liability applies to a particular physical element of the offence there are no fault elements for that physical element. These points are only mentioned in passing because the appellant does not raise any argument that if its main point fails, that the fault elements were not proved. They were proved. The appellant's submissions all concern the physical elements of the offence.
Section 4.1(1) and (2) of the Code read:
(1)A physical element 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.
(2)In this Code:
conduct means an act, an omission to perform an act or a state of affairs.
engage in conduct means:
(a)do an act; or
(b)omit to perform an act.
Section 4.2 reads:
(1)Conduct can only be a physical element if it is voluntary.
...
(4)An omission to perform an act is only voluntary if the act omitted is one which the person is capable of performing.
Section 4.3 reads:
An omission to perform an act can only be a physical element if:
(a)the law creating the offence makes it so; or
(b)the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.
Section 53(1)(a), (b) and (c) of the Act specify three physical elements which must be proved. The default fault elements applied to s 53(1)(a) and s 53(1)(b). They were not referred to by the parties and it is not necessary to mention them. There was no fault element in relation to the third physical element.
The first physical element - did the appellant move physical currency out of Australia - Section 53(1)(a)(ii) of the Act
This element consists of 'conduct' by the appellant, namely the conduct in moving physical currency out of Australia. As set out above, the expression 'move physical currency out of Australia' is defined to have the meaning given by s 57. Section 57(1) of the Act states that the section 'sets out the two situations in which a person moves physical currency out of Australia'.
The first situation is the one specified in s 57(2) and that corresponds with the natural meaning of the phrase 'move physical currency out of Australia', ie to take or send the physical currency across the Australian border. If that were the only provision, then the prosecutor would not be able to prove the first physical element of the offence specified by s 53(1) until it was established that the person carrying the currency moved it across the border. Clearly the appellant did not move currency out of Australia. Wherever the boundaries are, they are beyond the embarkation area at Perth Airport.
The second situation is specified in s 57(3) which is a deeming provision. It states that for the purposes of the Act, if a person does, or omits to do the four matters specified in s 57(3)(a), (b), (c) and (d) then the person is 'taken to' have moved the physical currency out of Australia.
The expression 'taken to' has the same effect as the expression 'deemed' and in this context the provision creates a statutory fiction: as to statutory fictions see Muller v Dalgety & Co Ltd (1909) 9 CLR 693, 696; Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49, 65.
There is no question that s 57(3)(a), (b) and (c) were proved. The question then is whether the prosecutor also proved s 57(3)(d) because the appellant did not 'give a report about the physical currency' at the place in the embarkation area at which Customs officers examine passports and so was 'taken to' have moved the physical currency out of Australia.
There are two differences between the report provision in s 53(1)(c) and the report provision in s 57(3)(d). The first is that, contrary to the appellant's submission, s 57(3)(d) does not state that a report has to be a report on a form approved by the AUSTRAC CEO because unlike s 53(1)(c), s 57 does not anywhere specify that the report must be 'in accordance with' s 53, ie s 53(8). Section 57 does not specify any method of reporting. Thus, if a person with $10,000 or more in physical currency orally informs an officer at the embarkation area at which Customs officers examine passports that he has $10,000 or more in his case, then the prosecutor will fail to prove that he has not given a report about the physical currency and will not be able to prove the deemed movement of the currency out of Australia. If the person does not report by any means that he has $10,000 or more then the prosecutor will prove the failure to report under s 57(3)(d) and if the prosecutor also proves the facts in s 57(3)(a), (b) and (c) it will then be proved that there was a deemed movement of currency out of Australia.
The second difference is that s 57(3)(d) unlike s 53(1)(c) requires proof that it was the appellant who did not give the report. Why s 53(1)(c) does not require proof that it was the appellant who did not give the report is explained below.
In this case the appellant did not give a report, oral or otherwise, about the physical currency at the place in the embarkation area at which the Customs officers examine passports.
Thus, the prosecutor proved what had to be proved under s 57(3)(a), (b), (c) and (d) and therefore the prosecutor proved the first physical element, which was that the appellant moved physical currency out of Australia via the statutory fiction which arose on proof of the facts in s 57(3).
The second physical element - the total amount of the currency was not less than $10,000 - Section 53(1)(b) of the Act
This element is a 'circumstance' in which the conduct in element one occurred. There is no issue that the total amount of the physical currency was not less than $10,000. So the prosecutor proved the second physical element.
The third physical element - a report in respect of the movement has not been given in accordance with s 53(8) - Section 53(1)(c) of the Act
This is where the main controversy arises. The appellant contended that this physical element is 'conduct'. The respondent on the other hand contended that it is a 'circumstance' in which the conduct in element one occurs.
It is appropriate to summarise the appellant's submissions which were that:
(a)the third element is a physical element of the offence and that it consisted of 'conduct'. The 'conduct' is an 'omission': see s 4.1(2) which defines 'conduct' to mean both an act and 'an omission to perform an act'. The omission is the failure by the appellant to make a report;
(b)such omission can only be a physical element of an offence if the law creating the offence 'impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform': s 4.3(b) Criminal Code;
(c)the law creating the offence, ie: s 53(1), does impliedly provide that 'the offence is committed by an omission to perform an act that by law there is a duty to perform', ie a duty in someone to report 'in accordance' with s 53(8);
(d)the conduct, ie the omission, can only be a physical element of an offence if it is voluntary: s 4.2(1);
(e)the conduct cannot be voluntary if the act omitted is one which the person is not capable of performing: see 4.2(4), and that because there was no approved form to give, the appellant was not capable of performing the act of giving a report 'in accordance' with s 53(8).
The appellant's submissions fail in limine. To explain this, it is necessary to first observe that the Code incorporates the general law principle that criminal liability does not attach to an omission save the omission of an act that a person is under a legal obligation to perform: Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43 [29].
Under the law of the Commonwealth, the omission to perform an act cannot be a physical element of an offence unless the law creating the offence makes it so, expressly or impliedly in the manner provided by s 4.3 of the Code. The Code adopts a more restrictive approach to liability for the omission to act than does the common law. This is because 'the law' to which s 4.3(b) refers, is a law of the Commonwealth. Section 4.3(b) does not include obligations imposed under the general law: Poniatowska [32].
Section 4.3(a) of the Code allows the omission to perform an act to be a physical element of an offence if the law creating the offence 'makes it so'. Many Commonwealth statutes make it an offence for a person to
fail to do a specified thing. The failure to comply with a notice requiring a bankrupt to give the Official Receiver a statement of affairs is one example: Poniatowska [33]. To that example may be added s 162 of the Income Tax Assessment Act 1936 (Cth) which obliges obedience to a requirement by the Commissioner. The requested return, information, statement or document must be in 'the approved form'. It is an offence to refuse or fail to furnish an 'approved form' when required to do so: Knaggs v DPP [12].
The appellant submitted that s 53(1)(c) imposed a duty on the appellant to report. That submission must be rejected. Section 53(1)(c) does not expressly or impliedly impose such a duty. In contrast to s 53(1)(a) which is in the active voice and identifies the appellant as the subject of the action of moving currency, s 53(1)(c) is in the passive voice and specifies no subject, therefore imposing no duty on the person moving the currency or on any other person.
A report in accordance with s 53(8) given by someone other than the person moving the currency would suffice. If that happened, then a report will have 'been given'.
As a result, s 53(1)(c) does not require proof of 'conduct', ie an act or omission. What it requires is proof of (in the language of s 4.1 of the Code) a 'circumstance' in which the conduct occurs (ie a circumstance in which the movement of physical currency out of Australia occurred). In ordinary meaning, a circumstance is a reference to the surroundings or adjunct of an action: Oxford English Dictionary. At the time the physical currency was moved out of Australia by the appellant, the circumstance (or the adjunct of the appellant's conduct) was that no report had been given in accordance with s 53. That was the 'circumstance' in which the conduct of the appellant in moving currency out of Australia occurred.
It is beside the point that if the appellant had wished to make a report in accordance with the section he could not have done so because the AUSTRAC CEO had not given his approval to a form which did exist and which did comply with the rules. The third element was proved.
All three elements of the offence were proved. The appeal must be dismissed.
MAZZA JA: I agree with Pullin JA.
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