Leask v The Queen - [1999] HCATrans 463

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S45 of 1999

B e t w e e n -
STEPHEN ARTHUR LEASK
Applicant
and
THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 2.00 PM

MR S.J. GAGELER: If the Court pleases, I appear for the applicant. (instructed by G. Shelton and Associates)

MR D.J. FAGAN, SC: If it please the Court, I appear with my learned friend, MR. F.A. VELTRO, for the respondent. (instructed by Commonwealth Director of Public Prosecutions).

MR GAGELER: Your Honours, section 31(1) of the Financial Transaction Reports Act is set out at page 133 of the application book. It contains two key phrases. The first is “having regard to”, which invites the question whether the subparagraphs that follow are exclusive of the matters to which regard is to be had. The second key phrase is “it would be reasonable to conclude” which invites two questions. One is what, if any, mens rea, need be proved for the commission of the offence, and the other is what standard of proof applies? In relation to the second phrase and the two questions it raises, there are, on my count, four different views that one can find in the appellate courts.

HAYNE J: But what view did the trial judge tell the jury?

MR GAGELER: None of them. Your Honour, the first view is that of Chief Justice Brennan in Leask at page 592 where his Honour said, in effect, the test is wholly objective. One asks what would a hypothetical, reasonable person conclude in the circumstances? That is the first. The second view is that of Justice Dawson in Leask at page 597 where his Honour says mens rea is required. There are two elements of it. There must be knowledge of the reporting requirement. There must be a purpose of evading the reporting requirement and his Honour says that the standard of proof becomes reduced from beyond reasonable doubt to that of a reasonable conclusion. He says that is what those words mean. That is the second view.

The third view is that of Chief Justice Doyle in the South Australian case Question of Law Reserved. The view is summarised in his Honour’s answers to question at page 169. The view is essentially the same as Justice Dawson except that the element of knowledge, as distinct from purpose, his Honour says, has to be proved beyond reasonable doubt. That is the third view. The fourth view is that of Justice Hume in the present case, expressed most succinctly at page 83 of the application book where he accepts Justice Dawson’s and Chief Justice Doyle’s view that there is a reduced standard of proof, but he says that the only mens rea that needs to be proved is the purpose of ensuring that a transaction takes place…

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 Leask v The Queen

Details

AGLC: Leask v The Queen [1999] HCATrans 463
Case: [1999] HCATrans 463
Decision Date

CaseChat Overview and Summary

In *Leask v The Queen*, the High Court of Australia considered an appeal from a conviction for conspiracy to import a prohibited substance. The appellant, Leask, was convicted alongside two co-accused, and the central dispute revolved around the admissibility of certain evidence and the proper application of the law relating to conspiracy.

The primary legal issues before the High Court were whether the trial judge had erred in admitting evidence of conversations between the co-accused that occurred after the appellant had allegedly withdrawn from the conspiracy, and whether the jury had been adequately directed on the elements of the offence of conspiracy, particularly in relation to the appellant's alleged withdrawal. The court also considered the principles governing the admissibility of evidence in conspiracy cases, including the concept of a continuing conspiracy and the effect of a party's withdrawal.

The High Court, in a joint judgment delivered by Kirby and Hayne JJ, held that the trial judge had erred in admitting the evidence of conversations between the co-accused after the appellant's alleged withdrawal. Their Honours reasoned that once a party withdraws from a conspiracy, they are no longer bound by the actions or statements of their co-conspirators made in furtherance of the conspiracy after that withdrawal. The court emphasised that the prosecution bears the onus of proving beyond reasonable doubt that the conspiracy continued to exist and that the appellant remained a party to it. The jury directions were found to be insufficient in failing to clearly explain to the jury that they must be satisfied that the appellant was a party to the conspiracy at the time the conversations in question took place.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders