Lee v R

Case [2007] NSWCCA 71 21 March 2007

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Reported Decision: 170 A Crim R 287

Appeal Outcome: Special leave application refused by the High Court - 31 August 2007

New South Wales

Court of Criminal Appeal

CITATION: Lee v R [2007] NSWCCA 71

HEARING DATE(S): 9 February 2007

JUDGMENT DATE:
21 March 2007

JUDGMENT OF: Spigelman CJ at 1; Sully J at 31; Bell J at 84; Howie J at 84; Buddin J at 84

DECISION: Appeal against conviction dismissed

LEGISLATION CITED: Financial Transaction Reports Act 1988 (C'th)
Criminal Code Act 1995
Crimes Act 1914 (C'th)

CASES CITED: R v Saengsai-Or [(2004) 61 NSWLR 135
R v Cao (2006) 65 NSWLR 552
Leask v The Commonwealth (1996) 187 CLR 579
Question of Law Reserved (No. 2 of 1998) (1998) 70 SASR 502
R v Leask [1999] NSWCCA 33
Hannes v Director of Public Prosecutions (C'th) (No. 2) [2006] NSWCCA 373

PARTIES: Maria Jung-Hee Lee
Regina

FILE NUMBER(S): CCA 2006/2215

COUNSEL: W. Abraham QC/C. Dobraszczyk - Crown
J. Agius SC/A. Tudehope - Appellant

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
O'Hara & Company Lawyers - Appellant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0404

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 24 February 2006

2006/2215

SPIGELMAN CJ
SULLY J
BELL J
HOWIE J
BUDDIN J
21 March 2007

Maria Jung-Hee LEE v REGINA

Judgment

1 SPIGELMAN CJ: In this matter I have read the judgment of Mr Justice Sully in draft. Subject to the following observations, I agree with his Honour’s reasons.

2 Sully J identifies, correctly in my opinion, that s31(1) of the Financial Transactions Report Act 1988 (Cth) (“the FTRA”) contains two physical elements.

3 The first physical element is conduct, namely being a party to two or more nonreportable cash transactions. I agree that, by force of s5.6 of the Commonwealth Criminal Code (“the Code”), the fault element attaching to this physical element is intention.

4 The second physical element identified by Sully J is correctly characterised as a “result” within the meaning of s4.1(1)(b) of the Code, relevantly, that the transactions do not give rise to a significant cash transaction, within the meaning of the FTRA.

5 Sully J identifies the fault element for the second physical element as intention, as defined in s5.2(3) of the Code. I do not agree.

6 The words “sole or dominant purpose” are capable of constituting either a fault element or a physical element. If the latter the words could either be an integral part of the second physical element or a “circumstance” within the meaning of s4.1(1)(c) of the Code and, if so, would constitute a third physical element. However, in my opinion these words are not to be understood, in the context, to be a “physical element” within the meaning of the Code.

7 In this Court Ms W Abraham QC, who appeared for the Crown, submitted that the words “sole or dominant purpose” were part of a composite element encompassing the whole of s31(1)(b) of…

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 Lee v R

Details

AGLC: Lee v R [2007] NSWCCA 71
Case: [2007] NSWCCA 71
Decision Date: 21 March 2007

CaseChat Overview and Summary

In the matter of Lee v R, the New South Wales Court of Criminal Appeal considered an appeal against conviction by Maria Jung-Hee Lee, who was found guilty of multiple counts of violating the Financial Transaction Reports Act 1988 (Cth) by engaging in transactions intended to avoid reporting requirements. The court was tasked with determining the correctness of the trial judge's jury directions and the sufficiency of the evidence to support the conviction. The appeal hinged on whether the trial judge correctly instructed the jury on the standard of proof and the elements of the offence, specifically whether the "sole or dominant purpose" requirement was properly characterised as a physical or fault element.

The court held that the "sole or dominant purpose" phrase in s31(1)(b) of the Financial Transaction Reports Act 1988 (Cth) constituted a fault element, rather than a physical element. This meant that the fault element for this part of the offence was not merely the intention to bring about a result, but rather the intention to conduct the transactions with a specific purpose, as defined by the statute. The court also held that the phrase "it would be reasonable to conclude" did not constitute a different standard of proof but was a direction to the jury on how to proceed with their deliberations.

The court found that the trial judge's directions to the jury were sufficient and that there was no miscarriage of justice in the conviction. The appeal against conviction was dismissed, and the convictions were upheld. The reasoning of the court emphasised the importance of correctly interpreting statutory language in the context of the Commonwealth Criminal Code and the need for consistency in the interpretation of similar statutory provisions.

Orders