Lee v The Queen - [2007] HCATrans 482

[2007] HCATrans 482

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S182 of 2007

B e t w e e n -
MARIA JUNG‑HEE LEE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 10.22 AM

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR A.J. TUDEHOPE for the applicant. (instructed by O’Hara & Company)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS C. DOBRASZCZYK for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Agius.

MR AGIUS: Your Honours, in our respectful submission, this application raises a question of public importance. Central to that question is what is the impact of the Criminal Code on section 31 of the Financial Transaction Reports Act and indeed what are the elements of section 31 of the Financial Transaction Reports Act after the Criminal Code (Cth).

Some members of this Court dealt with the question of what was the nature of the mens rea required by section 31(1) of the Act - the FTRA Act as I will refer to it - in Leask and the attitude of various members of this Court is set out in the judgment of Chief Justice Doyle in Question of Law Reserved (No 2 of 1998) (1998) 70 SASR 502.

In substance, Justice Brennan dealt with the issue and defined “mens rea” or the available scope for mens rea as being very confined. Justice Dawson dealt with it, but was not sure. Other members of that Court, as your Honour Justice Gummow may recall as your Honour was one of those members, did not feel it necessary to deal with that point.

GLEESON CJ: Mr Agius, a convenient place to find the provision seems to be on page 62 of the application book. Could you just tell us how you construe section 31(1) by reference to the text on section 31?

MR AGIUS: Yes. If it is any assistance to the Court, we have set this out in writing on page 95 of the application book. We contend for this, that a person commits the offence if, in this case, she was a party to two or more cash transactions. We say that there is there involved the question of mens rea. What is the knowledge that is necessary when she is a party to two or more cash transactions, that is, transactions in cash in a sum less than $10,000?

GLEESON CJ: You mean to satisfy paragraph (a), you have to show that she knew that there was a significant difference between $10,000 and less than $10,000?

MR AGIUS: But if you deposited $10,000 in cash or above, it would be reported and it would not necessarily be reported if it were under $10,000, if…

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 The Queen

Details

AGLC: Lee v The Queen [2007] HCATrans 482
Case: [2007] HCATrans 482
Decision Date: 31 August 2007

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Lee against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained from the appellant.

The primary legal issue before the High Court was whether the trial judge had erred in admitting evidence that was obtained in circumstances where the appellant had been subjected to oppressive conduct by police. This involved an examination of the principles governing the admission of evidence obtained in contravention of an accused's rights, particularly where such contravention might render the evidence unfair to the accused.

The Court affirmed the principles established in *Bally v The Queen* and *R v Swaffield*, holding that evidence obtained in contravention of an accused's rights, even if obtained unlawfully or unfairly, is not automatically inadmissible. Instead, the court must weigh the probative value of the evidence against the degree of unfairness to the accused. In this instance, the Court found that the conduct of the police, while potentially oppressive, did not render the admission of the evidence so unfair as to warrant its exclusion. The appeal was accordingly dismissed.

Orders