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R v O'Driscoll

R v O'Driscoll

Case [2003] NSWCCA 166 26 June 2003

Appeal

Breach of Contract

Admissibility of Evidence

Contempt of Court

Criminal Law

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Reported Decision:
57 NSWLR 416
141 A Crim R 368

New South Wales

Court of Criminal Appeal

CITATION: REGINA v O'DRISCOLL [2003] NSWCCA 166 revised - 8/06/2004

HEARING DATE(S): 20 May 2003

JUDGMENT DATE:
26 June 2003

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 116; Carruthers AJ at 149

DECISION: Appeal from convictions on Counts 7-22 allowed, appeal otherwise dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - structuring cash transactions - meaning of "transaction" - whether two or more non-reportable cash transactions - Financial Transaction Reports Act (Cth) s31 - CRIMINAL LAW - evidence - whether Crown case split - whether error in allowing cross-examination by Crown on evidence of unexplained wealth - whether error in allowing Crown case in reply

LEGISLATION CITED: Crimes Act 1914 (Cth) s 29D
Criminal Appeal Act 1912 ss 6, 6AA
Financial Transaction Reports Act 1988 (Cth) ss 3, 4, 7, 31
Income Tax Assessment Act 1936 (Cth)

CASES CITED: Bendir v Anson [1936] 3 All ER 326
Chamberlain v R (No 2) (1984) 153 CLR 521
Killick v The Queen (1981) 147 CLR 565
Palmer v Commissioner of Taxation [1976] WAR 37
Palmer v Commissioner of State Taxation (WA) (1976) 136 CLR 406
Pearce v R (1978) 194 CLR 610
Question of Law Reserved (No 2 of 1998) (1998) 101 A Crim R 317
R v Chin (1984) 157 CLR 671
R v Ditfort (1987) 28 A Crim R 392
R v Ditfort (1991) 91 ATC 4431
R v Campbell & Greig (1999) 109 A Crim R 174
R v Edwards [1998] 2 VR 354
R v McMahon (NSWCCA, 23 June 1978, unreported)
R v Narayanan [2002] NSWCCA 200
R v Simpson (2001) 53 NSWLR 704
R v Soma (2003) 77 ALJR 849
Shaw v The Queen (1952) 85 CLR 365
Shepherd v R (1990) 70 CLR 573)

PARTIES :
Regina (Respondent)
William Benedict O'Driscoll (Appellant)

FILE NUMBER(S): CCA 60022/03

COUNSEL: E. Fullerton SC (Appellant)
D. Staehli (Respondent)

SOLICITORS: James A. Moustacas & Co. (Appellant)
Commonwealth DPP (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/6660

LOWER COURT
JUDICIAL OFFICER : Blackmore DCJ

60022/03

SPIGELMAN CJ
HULME J
CARRUTHERS AJ
Thursday 26 June 2003

REGINA v William Benedict O’DRISCOLL

The Appellant was convicted on two charges of defrauding the Commonwealth and sixteen charges of “structuring” transactions pursuant to s31(1) of the Financial Transaction Reports Act 1988 (Cth). That Act imposes reporting obligations on cash dealers in respect of cash transactions involving the transfer of $10,000 or more. Under s31 of that Act, it is an offence to be a party to two or more non-reportable cash transactions for the sole or dominant purpose of evading the reporting requirements imposed upon cash dealers. The jury accepted that the Appellant had participated over a number of years in a scheme to defraud the revenue by paying the wages of workers in the construction industry in cash. The structuring charges of which the Appellant was convicted were the result of his…

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 R v O'Driscoll

Details

AGLC: R v O'Driscoll [2003] NSWCCA 166
Case: [2003] NSWCCA 166
Decision Date: 26 June 2003

CaseChat Overview and Summary

In the case of R v O'Driscoll, the appellant was convicted for structuring cash transactions in contravention of the Financial Transaction Reports Act. The matter was heard by the High Court of Australia, which was asked to consider several key legal questions arising from the trial. The central issues involved the interpretation of the term "transaction" in the Act, whether the transactions in question constituted two or more non-reportable transactions, and the admissibility of certain evidence presented by the Crown.

The court was required to determine whether the evidence presented by the Crown adequately established that the appellant had engaged in structuring activities, which involved breaking up a single transaction into multiple smaller ones to avoid reporting requirements. Furthermore, the court needed to assess whether the Crown's case was split and whether there were any errors in allowing cross-examination by the Crown on evidence of unexplained wealth and in permitting the Crown's case in reply. The appellant argued that the trial judge had made several errors in admitting evidence that was either inadmissible or prejudicial.

The High Court found that the trial judge had correctly admitted evidence of unexplained wealth and that the Crown's case was not split. The court held that the term "transaction" in the Act should be interpreted broadly to include multiple non-reportable cash transactions that are connected and structured to avoid reporting requirements. The court concluded that the evidence was sufficient to establish that the appellant had engaged in structuring activities. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the court. The conviction of the appellant for structuring cash transactions in contravention of the Financial Transaction Reports Act was affirmed.

Orders