QUESTION of LAW RESERVED (NO.2 of 1998) No. SCCRM-98-32 Judgment No. 6612. Number of Pages - 12 Criminal Law - Financial Transactions Reports Act (Cth) (1998) 154 ALR 161 - [1998] SASC 6612

IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA

DOYLE CJ, COX AND DUGGAN JJ

CATCHWORDS:

Criminal law - general matters - criminal liability and capacity - mens rea.

Statutory offences - criminal law - criminal liability and capacity - mens rea

Statutory offences - consideration of required mental element for an offence under s31(1) of Financial Transactions Reports Act (Cth) avoiding reportable cash transactions. Financial Transactions Reports Act (1988) (Cth) s31(1), referred to. He Kaw Teh v The Queen (1985) 157 CLR 523, applied. Leask v The Commonwealth (1996) 187 CLR 579, considered.

HEARING:

ADELAIDE, 19 March 1998 (hearing) 3 April 1998 (decision)

#DATE 3:4:1998

Appearances:

Counsel: Ms L Bolton

Solicitors: DPP (Cwlth)

Accused Dinh Hue Tran:

Counsel: Mr P Waye with Mr D Waye

Solicitors: D P Waye

ORDER: xxxx

DOYLE CJ

Introduction

A judge of the District Court has stated a case, reserving for consideration by this Court four questions of law relevant to a trial that was to be conducted before him. The questions were reserved under s350 and s351 of the Criminal Law Consolidation Act. They were reserved at the request of counsel for the Commonwealth Director of Public Prosecutions and counsel for the accused.

The accused is charged on an information alleging eighteen offences against s31(1) of the Financial Transactions Reports Act (1988) (Cth) ("the Act").

The questions raise the issue of the mental element involved in proof of guilt of an offence against s31(1). The answers to the questions might result in the accused pleading guilty. Accordingly, it seemed convenient to the Judge to reserve the four questions.

The Act

In Leask v The Commonwealth (1996) 187 CLR 579, the High Court held that s31(1) of the Act is a valid law of the Parliament of the Commonwealth. Some members of the Court expressed a view about some of the matters the subject of the questions reserved. I will return to those views in due course. The purposes and the operation of the Act are described in the judgments in that case. I will cover that ground fairly briefly, drawing on the judgment in Leask (supra). I refer, without repeating it, to the history of the legislation, which is set out by Kirby J in Leask (supra) at 628-632.

According to the long title of the Act its purpose is ". . . to provide for the reporting of certain transactions and transfer . . .". The principal object of the Act is "... to facilitate the administration and enforcement of taxation laws": s4(1). The second reading speech states that the Act is intended to deal with "the underground cash economy, tax evasion and money laundering": Parliamentary Debates (Hansard) 25 November 1987, p2413. The Act does this by enabling government agencies to monitor the movement of large amounts of cash. Reports under the Act are made to the Director of AUSTRAC, which is the Australian Transaction Reports and Analysis Centre.

A central concept under the Act is…

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.

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Details

AGLC: QUESTION of LAW RESERVED (NO.2 of 1998) No. SCCRM-98-32 Judgment No. 6612. Number of Pages - 12 Criminal Law - Financial Transactions Reports Act (Cth) (1998) 154 ALR 161 [1998] SASC 6612
Case: [1998] SASC 6612
Decision Date: 3 April 1998

CaseChat Overview and Summary

The case involved a reserved question of law concerning the criminal liability under s31(1) of the Financial Transactions Reports Act (1988) (Cth). The accused was charged with eighteen offences for avoiding reportable cash transactions. The primary legal issue was the mental element, or mens rea, required for an offence under s31(1). The High Court in Leask v The Commonwealth (1996) 187 CLR 579 had previously upheld the validity of s31(1), but the specific mental element required remained unresolved. The Court considered the presumption that a mental element is necessary for an offence, as established in He Kaw Teh v The Queen (1985) 157 CLR 523. The Court determined that proof of guilt under s31(1) required the accused to know certain facts that made the transactions "non-reportable cash transactions." This included knowledge that a transaction involving currency of $10,000 or more in value must be reported to a government agency and that a transaction involving currency of less than $10,000 in value need not be reported. The Court further held that it was reasonable to conclude that the accused had a specific purpose, without requiring proof of the accused's state of mind beyond reasonable doubt. The Court concluded that it was not necessary to prove that the accused knew that their actions were illegal, only that they knew the circumstances rendering the event criminal.

The final orders were to direct the jury to consider the specific mental elements as outlined by the Court, ensuring that the accused knew the relevant facts and purposes, and that it was reasonable to conclude that the accused had the required purpose. The Court emphasized that the jury's findings should relate to the actual knowledge and purpose of the accused.

Orders