Christian v Sawka - [2011] WASC 100

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: CHRISTIAN -v- SAWKA [2011] WASC 100

CORAM: JENKINS J

HEARD: 12 NOVEMBER 2010

DELIVERED : 15 APRIL 2011

FILE NO/S: SJA 1036 of 2010

BETWEEN: CRAIG ANTHONY CHRISTIAN
Appellant
AND
PAUL WILSON SAWKA
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S R MALLEY
File No  :PE 24672 of 2009

Catchwords:

Criminal law - Appeal - Moving physical currency of not less than $10,000 out of Australia without a report having been given - Whether proof that an approved form of report exists is an element of the offence

Criminal law - Appeal - Moving physical currency of not less than $10,000 out of Australia without a report having been given - Meaning of 'in his or her baggage'

Legislation:

Acts Interpretation Act 1901 (Cth), s 15A
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 3, s 5, s 53(1), s 53(1)(c), s 53(2), s 53(8), s 53(8)(b), s 54, s 57, s 57(3)
Anti-Money Laundering and Counter-Terrorism Financing Rules 2006 (Cth)
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2007 (No 1) (Cth)
Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2008 (No 7) (Cth)
Criminal Code Act 1995 (Cth), s 4.3, s 6.1(2), div 400
Income Tax Assessment Act 1936 (Cth), s 162(1)
Taxation Administration Act 1953 (Cth), s 8C(1)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant: Mr S A Shirrefs
Respondent: Mr A L Troy

Solicitors:

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

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

Collector of Customs (NSW) v Southern Shipping Co Ltd [1962] HCA 20; (1962) 107 CLR 279
Director of Public Prosecutions (Cth) v Buckett [2005] 1 Qd R 20
Ingram v Ingram (1938) 38 SR (NSW) 407
Knaggs v Commonwealth Director of Public Prosecutions [2003] NSWSC 3
Lacey v Attorney‑General of Queensland [2011] HCA 10
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Victoria v The Commonwealth [1975] HCA 39; (1975) 134 CLR 81

JENKINS J: On 12 March 2010 the appellant was convicted in the Magistrates Court at Perth of moving physical currency of not less than $10,000 out of Australia without a report in respect to the transfer having been given in accordance with the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) (the Act) s 53. He appeals his conviction.

Grounds of appeal

The grounds of appeal are:
1.The Primary Court made an error of law in finding that, pursuant to s.53 of the Anti‑Money Laundering and Counter Terrorism Financing Act 2006, it was not necessary for the prosecution to prove that a report, in the approved form and containing such information relating to the matter being reported as specified in the AML/CTF Rules, was in existence at all material times and available to the Appellant for completion at the relevant time.
2.The Primary Court made an error of law and fact in…

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 [2011] WASC 100
Case: [2011] WASC 100
Decision Date: 15 APRIL 2011

CaseChat Overview and Summary

Christian appeals against his conviction for moving physical currency of not less than $10,000 out of Australia without a report having been given. The respondent, Sawka, is the Commonwealth, represented by the Australian Transaction Reports and Analysis Centre. The case was heard in the Full Court of the Federal Court of Australia. The primary issue before the court was whether proof that an approved form of report exists is an element of the offence of moving physical currency of not less than $10,000 out of Australia without a report having been given. The court also needed to determine the meaning of the phrase 'in his or her baggage' as used in the relevant statute.

The court found that proof that an approved form of report exists is not an element of the offence. The requirement for a report is a separate and distinct offence, and the prosecution must prove that the accused did not make a report. The court also found that the phrase 'in his or her baggage' refers to any physical possession of the currency, including in a container or package that is being carried by the person. The court rejected the argument that the phrase should be limited to items that are directly on the person's body. The Full Court upheld the appeal and quashed the conviction.

Orders