Director of Public Prosecutions v Ho (Ruling No. 16)

[2009] VSC 233

IN THE SUPREME COURT OF VICTORIA Not Restricted

CRIMINAL DIVISION

No. 1485 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

v

KAM TIN HO & ORS

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 June 2009
DATE OF RULING:	11 June 2009
CASE MAY BE CITED AS:	DPP v Ho & Ors (Ruling No. 16)
MEDIUM NEUTRAL CITATION:	[2009] VSC 233	Revised 19 October 2009

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Criminal law and procedure – Trial – Financial Transaction Reports Act 1988 (Cth) – s 31(1) – Non-reportable cash transactions – Purpose.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr D Gurvich with Mr R Davis	Director of Public Prosecutions
For the Accused Kam Tim Ho	Mr J Dickinson SC	Theo Magazis & Associates
For the Accused Ho Kam Ho	Mr J Montgomery SC	Slades & Parsons
For the Accused Hoo	Mr J Bisas	Michael J Gleeson & Associates Pty Ltd
For the Accused Rahardjo	Mr L Hartnett	Robert Stary & Associates

Ruling No.16

HIS HONOUR:

1. Mr Dickinson, senior counsel for the first accused, and supported by Mr Montgomery, senior counsel for the second accused, has raised the question as to what is required to be proved in relation to the financial transactions counts before the jury, they being Counts 9, 13 and 14.

1. Each of those counts is laid pursuant to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth) and asserts, differentially according to date, that the first and second accused conducted or were party to two or more non-reportable cash transactions, each of which involved the transfer of Australian currency of less than $10,000 in value and that the said transactions, with the sole or dominant purpose of ensuring or attempting to ensure that the said transactions would not give rise to a significant cash transaction, contrary to s 31(1) Financial Transaction Reports Act 1988 (Commonwealth).

1. The Financial Transaction Reports Act in s 31 relevantly provides as follows:

(1)A person commits an offence against this section if:

(a)the person is a party to 2 or more non-reportable cash transactions; and

(b)having regard to [the matters there set out]

it would be reasonable to conclude that the person conducted the transactions in the manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the currency involved in the transactions was transferred in a manner and form that

(iii)would not give rise to a significant cash transaction…”

“Significant cash transaction” is defined in s 3(1) of the Act to mean a cash transaction involving the transfer of currency of not less than $10,000 in value.

1. Mr Dickinson has submitted that it is a necessary element of proof, in relation to the offences there proscribed, that the relevant accused had the purpose of avoiding the reporting conditions of the Act or of avoiding its consequences.  Mr Dickinson submitted that the law would overshoot itself were it otherwise - that is not the expression Mr Dickinson used - and that it would have an inappropriate or paradoxical consequence were it otherwise.  Mr Dickinson submitted, at T1856, that if a person “decided because, for whatever reason, they just decided, out of the blue, for no reason at all perhaps, to break it up”, that that would not found an offence under the Act.  Mr Dickinson submitted that in such a case (T1854) “there’s simply no criminal intent whatsoever.  There’s no intent to avoid any sanction, there’s no attempt to avoid the operation of any Act, no criminal intent at all”.  He went on to say (T1059), “But the mental element must be, in my submission, that you want to avoid the operation of the Act”.  He also said (T1856), “The person might have no knowledge at all of the Financial Transaction Reports Act or any requirement at all in relation to transfers of $10,000 or more, whatever happens or whatever”.

1. In my view, helpful though Mr Dickinson’s submissions were, and certainly responsible as it was to raise this issue, the submissions are misconceived.  What in reality the submissions are premised upon is common law analysis.  However Chapter 2 of the Code in this regard as to these counts stands itself and excludes common law.  Indeed as Spigelman CJ noted at paragraph 28 of his judgment in Lee v. R (2007) 170 A. Crim. R 287:

“The common law requirements of a mental element of an offence, which influenced Doyle CJ and determined the conclusion that His Honour reached, are no longer applicable to criminal responsibility under Chapter 2 of the Code.”

That reference was to the judgment of Doyle CJ in Question of Law Reserved (No.2 of 1998) (1998) 70 SASR 502.

1. In my view the correct analysis is that which is stated by Spigelman CJ in Lee v. R, particularly at paragraphs 10-16. As His Honour there stated that the words “sole or dominant purpose” in s 31(1)(b) of the Financial Transaction Reports Act refer to the actuating purpose of the conduct rather than to the result of the conduct.  His Honour stated (at [10]):

“An actuating purpose would, in ordinary discourse, be regarded as indicating ‘fault’ of itself.”

His Honour proceeded (at [11]):

“Section 5.1(2) of the Code makes it clear that a law may specify a different fault element to those for which the Code itself makes provision that is: something other than intention, knowledge, recklessness or negligence. That, in my opinion, is what the legislature has done in s 31(1)(b) of the Financial Transaction Reports Act.”

The learned Chief Justice proceeded (at [15]):

“… the reference to ‘purpose’ in s 31(1)(b of the Financial Transaction Reports Act should be understood to be a reference to an actuating purpose, rather than to a result which the person ‘means to bring about.’  An actuating purpose is discrete from the result sought to be achieved.  In this context, the word is not used as equivalent to intention.”

His Honour concluded (at [16]):

“In my opinion, actuating purpose is itself a matter indicating fault.  The parliament intended it in that sense in the Financial Transactions Report Act.  The ‘sole or dominant purpose’ component of the offence is a fault element, specified under s 5.1(2), other than the four fault elements expressly identified in the Code.”

1. With every respect I agree with the learned Chief Justice’s reasoning. 

1. In my view what is required to be proved is that which is specifically stated in s 31(1). It is not required to be proved that there was, as Mr Dickinson contended, either first, knowledge of the Act, second, an intent to avoid the reporting conditions of the Act, which in turn involves knowledge of the proscription or the conditions or, third, intent to avoid its consequences, which in turn involves knowledge of the proscriptions.

1. In my view the analysis of Spigelman CJ is the appropriate view and I shall direct the jury accordingly.

1. I should add that, as I said in discussion with Mr Dickinson – although Mr Dickinson, for purposes of analysis, proffered an hypothesis as to why a person might act, ignorant of and irrelevant to purpose or proscription of the Financial Transaction Reports Act – persons ordinarily act for a purpose, especially in financial matters, rather than for a lack of purpose.  What the Act proscribes is acting in the proscribed way for the proscribed purpose for transacting in amounts less than $10,000.  No further purpose is required to be proved.

1. As Mr Dickinson responsibly acknowledged, his submission was not a “no case” submission.  In the present case, there is an amplitude of evidence upon which a jury properly directed could conclude that the relevant  accused intended what the Act proscribes.  Whether each did so, of course, is for the jury to decide.

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