R v Taib; ex parte
[1998] QCA 307
•13/10/1998
| IN THE COURT OF APPEAL | [1998] QCA 307 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 219 of 1998
Brisbane
[R. v. Taib; ex parte Cth DPP]
THE QUEEN
v.
MUHAMMAD BIN MUHAMMAD TAIB
REFERENCE BY COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
PURSUANT TO SECTION 669A OF THE CRIMINAL CODE
Pincus J.A.
Thomas J.A.Ambrose J.
Judgment delivered 13 October 1998
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
THE REFERENCE TO BE ANSWERED AS FOLLOWS:
1. THE LEARNED TRIAL JUDGE WAS CORRECT IN HIS RULING THAT IN ORDER TO ESTABLISH THE REQUISITE KNOWLEDGE OR MENS REA FOR AN OFFENCE AGAINST S.15(1) OF THE FINANCIAL TRANSACTION REPORTS ACT 1988 (CTH) THE PROSECUTION MUST PROVE THE ELEMENTS -
(I) THAT HE (THE ACCUSED) KNEW THAT HE HAD IN HIS
POSSESSION $5,000 OR MORE;(II) THAT HE KNEW THAT HE HAD TRANSFERRED THE CASH OUT OF
AUSTRALIA;(III) THAT HE KNEW THAT HE HAD NOT REPORTED THAT TRANSFER.
2. THE LEARNED TRIAL JUDGE WAS NOT CORRECT IN HIS RULING THAT IN ORDER TO ESTABLISH THE REQUISITE KNOWLEDGE OR MENS REA FOR AN OFFENCE AGAINST S.15(1) OF THE FINANCIAL TRANSACTION REPORTS ACT THE PROSECUTION MUST ALSO PROVE -
(I) THAT THE ACCUSED KNEW THAT THERE WAS AN OBLIGATION
TO REPORT SUCH TRANSFER OF $5,000 OR MORE.3. IT WAS NOT NECESSARY FOR THE PROSECUTION TO PROVE THAT THE ACCUSED KNEW THAT THERE WAS ANY OBLIGATION WHETHER IMPOSED BY THE FINANCIAL TRANSACTION REPORTS ACT OR OTHERWISE, TO REPORT SUCH TRANSFER OF $5,000.
CATCHWORDS: | CRIMINAL LAW - Attorney-General’s reference - extent of mens rea in s.15(1) of the Financial Transaction Reports Act 1988 (Cth) - prosecutorial onus with respect to s. 15(1) of the Financial Transaction Reports Act - what constituted actus reus of the offence under s.15(1) of the Financial Transaction Reports Act - transfer of currency - ignorance of the law is no excuse - guilty knowledge. |
| Financial Transaction Reports Act 1988(Cth) Criminal Code (Qld) Judiciary Act 1903 (Cth) | |
| The Crown v. Barronet & Allain (1852) Dears. 51; 169 E.R. 633 P (1986) 21 A.Crim. R. 186 He Kaw Teh v. The Queen (1985) 157 C.L.R. 523 Walden v. Hensler (1987) 163 C.L.R. 561 Jiminez v. The Queen (1992) 173 C.L.R. 572 R. v. Turnbull (1943) 44 S.R. (N.S.W.) 108 Reg. v. Churchill [1967] 2 A.C. 224 R. v. Clayton (1949) 33 Cr. App. R. 113 R. v. Jacobs [1944] K.B. 417 R. v. Sorsky [1944] 2 All E.R. 333 R. v. Wheat & Stocks [1921] 2 K.B. 119 Johnson v. Youden [1950] 1 K.B. 544 R. v. Cook ex parte Director of Public Prosecutions (Cth) [1996] 2 Qd.R. 283 Leask v The Commonwealth of Australia (1996) 187 C.L.R. 579 Re Question of Law Reserved (No. 2) of 1998 - Court of Criminal Appeal South Australia The Director of Public Prosecutions v Morgan [1976] A.C. 182 Attorney-General’s Reference (No. 1 of 1995) [1996] 1 W.L.R. 970 R. v. Esop [1836] 7 C.A.R. et P. 457; 173 E.R. 203 | |
| Counsel: | Mr R. Hanson Q.C., with him Ms K. Holmes, for the Commonwealth Director of Public Prosecutions Mr T. Robertson, with him Ms F. Davis, for Mr Taib |
| Solicitors: | Commonwealth Director of Public Prosecutions Robertson O’Gorman for Mr Taib |
| Hearing date: | 4 September 1998 |
| REASONS FOR JUDGMENT - PINCUS J.A. |
Judgment delivered 13 October 1998
| 1 | I have had the advantage of reading the reasons of Ambrose J. in which the nature of the proceedings before us is explained. The question is a short one relating to the construction of s. 15(1) of the Financial Transaction Reports Act 1988 (C’th) ("the Act"). |
| 2 | That provision makes it an offence to transfer foreign currency out of Australia in an amount not less than $5,000 in value "unless a report in respect of the transfer has been given in accordance with this section". If the argument for Mr Taib, for whom Mr T Robertson and Ms Davis appeared, is correct, then the provision has the same effect as if there were added to it "provided that no offence is committed unless it is proved that the person was at the relevant time aware of the obligation to report". |
| 3 | The offence was alleged to have been committed in 1996, so the question of criminal responsibility must be determined in accordance with the common law. This is so because s. 4 of the Crimes Act 1914 (C’th) was amended, with effect from 1 September 1995, to achieve that result. At common law the general rule is that ignorance of the law is no excuse, from which it follows that the prosecutor does not ordinarily have to prove that the accused knew that the act or omission alleged constituted an offence. The contention which was advanced on behalf of Mr Taib was to the effect that, as to one of the elements of the offence, namely the absence of a report, the prosecution had to prove a guilty mind and that it could not do so unless it was proved that Mr Taib knew of the obligation to do that which he omitted to do - report the transfer. |
| 4 | A difficulty which the argument faces is that if its foundation were correct, it would prove too much: there would be no logical stopping place short of the proposition that, in general, the rule that ignorance of the law is no excuse is inapplicable whenever an omission is an element of an offence. That is so because one could not ordinarily say, of an omission to do that which the law requires, that it was deliberate, if the person making the omission had no knowledge of what the law required. |
| 5 | We were referred to no authority supporting the view that the ordinary rule about the effect of ignorance of the law is inapplicable to omissions, nor have I found any such authority. In this century it has become common for legislatures to attach a criminal sanction to engaging in a specified activity, without some sort of permission required by the law; to hold that in such cases there is no offence unless knowledge of the relevant law is proved would be to take a bold step and one which is not required by the common law doctrine of mens rea. The necessary guilty mind is sufficiently proved if it is shown that the accused knew that no report had been made, without proving, additionally, that he knew of the legal requirement that one be made. I should add that in the present case it is unnecessary to consider how far the prosecution has to go in proving the necessary knowledge that there was no report - in particular, where what is sometimes called "wilful blindness" is enough. |
| 6 | It was said for Mr Taib that it is unlikely that the legislature intended so substantial a punishment as is provided for by s. 15(6) of the Act to be imposed on a person who acted quite innocently. It was argued that what was called the "taint of criminality" does not attach to transfers of large amounts of currency into or out of Australia by which was meant, I think, that one would not expect such a transaction to be within the scope of the criminal law. Section 15(6) makes an offence under s. 15(1) one punishable by imprisonment of not more than 2 years or a fine. |
| 7 | The suggestion made by counsel for Mr Taib that the operation of the principle that ignorance of the law is no excuse is weakened where the offence has attached to it a heavy penalty receives some support from the decision in the South Australian Court of Criminal Appeal in P (1986) 21 A.Crim.R. 186. There, the appellant had been convicted on a charge of presenting a false document, but it was a statutory defence for him to prove, in effect, that he did not know or suspect that the document was false. A question in the case was whether the defence was good even if the accused’s mistake, in thinking that the document presented was not false, had its genesis in illegal error. Among the considerations taken into account by King C.J., in holding that the defence had been made out, was the penalty: |
"The seriousness of the crime created by the section is indicated by the maximum penalty of $10,000 or imprisonment for five years. The section clearly creates a serious crime, conviction of which not only exposes the offender to severe punishment but is likely to result in disgrace and moral opprobrium. . . . One would expect that such a crime could only be committed as a result of some substantial degree of moral or civic wrongdoing . . .". (191, 192)
| 8 | At the present day, when it is a fairly simple matter to meet obligations in foreign countries without carrying about large amounts of cash, it might not seem very surprising that a government might have a legitimate interest in knowing about a transfer of such a sum as was being carried here - the equivalent of A$1.4M cash. The possibility that the risk associated with physical transport of such an amount of cash has been run for a reason connected with the way the money was acquired is evident enough. But the argument for Mr Taib must be considered, not with reference to the present facts, but in an abstract way, since the provision in question applied to much smaller amounts than Mr Taib carried - amounts not less than $5,000. |
| 9 | The penalty of imprisonment might be expected to be reserved for those cases in which the circumstances were such that a mere fine could be thought inadequate, and small fines only might be imposed where the breach was one of a relatively minor character. That the maximum penalty is 2 years imprisonment does not, to my mind, point strongly towards the conclusion that the legislature could not have intended innocent breaches to be sanctioned - or to put that more accurately, could not have intended that a conviction could be entered without proof that the accused knew of the law’s requirement. There is no prescribed minimum penalty and a rational legislature could reasonably have expected that, if it were shown that the offender had no knowledge of the obligation to report the transfer, then that would be taken into account in fixing the penalty. |
| 10 | The South Australian decision in re Question of Law Reserved (No. 2 of 1998) (SCCRM 32 of 1998, 3 April 1998), which was relied on by the primary judge, dealt with the requirement of mens rea in offences under s. 31(1) of the Act. I agree, substantially for the reasons given by Ambrose J., that the case is distinguishable. Section 31 deals with offences of which an element is, to put it simply, a purpose of evasion of the Act. In such a context it would not seem difficult to conclude that proof that the accused knew, at least in a general way, what the Act required would be needed. The South Australian case provides a contrast with the present; there, one could find indications, in the provision creating the offence, supporting the view at which the court arrived. Here, on the other hand, nothing in the actual language used points towards the conclusion for which Mr Taib’s counsel contend. The arguments they have advanced rely, of necessity, on broader considerations and in particular on the harshness of subjecting Mr Taib to a criminal penalty under a law of whose existence he had no reason to be aware. That is a consideration which may always be urged against applying the basic presumption, which is that a statute creating an offence is not so read as to require that the prosecution prove, as an element of the offence, that the accused knew of the relevant law. It is not, however, a consideration which applies with particular force to the provision here in question. |
| 11 | I agree with the answers proposed by Ambrose J. |
REASONS FOR JUDGMENT - THOMAS J.A.
Judgment delivered 13 October 1998
1 I agree with the reasons of Pincus J.A. and of Ambrose J. and agree that the case should be
answered as proposed by Ambrose J.
REASONS FOR JUDGMENT - B.W. AMBROSE J.
Judgment delivered 13 October 1998
1 This is a reference by the Commonwealth Director of Public Prosecutions pursuant to s.669A of the Criminal Code (Qld) of points of law which arose upon the trial of Muhammad Bin MuhammadTaib on 19 May 1998 at Brisbane in the District Court of Queensland for an offence against s.15(1) of the Financial Transaction Reports Act 1988 (“the Act”). The right of the Attorney-General and the Commonwealth Director of Prosecutions to so refer is based upon s. 68(2) of The Judiciary Act (1903) considered in this respect in R. v. Cook ex parte Director of Public Prosecutions (Cth) [1996] 2 Qd. R. 283 at 284-5
2 Mr Taib was acquitted by a jury after the learned District Court Judge made a ruling in
accordance with which he directed the jury, that in order to establish an offence against
s.15(1) of the Act the Crown had to prove that the accused knew that at the material time:-
(1) he had in his possession $5,000 or more; (2) he had transferred the cash out of Australia; (3) he had not reported that transfer; and (4) there was an obligation to report such transfer of $5,000 or more. 3 The Commonwealth Director of Public Prosecutions has referred to this Court the following points of law for its consideration and opinion thereon -
(1)
Was the learned trial Judge correct in his ruling that in order to establish the requisite knowledge or mens rea for an offence against s.15(1) of the Financial Transaction Reports Act 1988, in addition to elements numbered (1) and (2) above the prosecution must prove elements numbered (3) and (4), namely:
(i) that the accused knew that he had not reported the transfer; and
(ii) that the accused knew there was an obligation to report such transfer of $5,000
or more;
(2) If “no” to either part of Question 1, what knowledge if any, must the prosecution
establish?4 It is unnecessary and inappropriate to advert to the facts canvassed before the jury by whom Mr Taib was acquitted of the offence charged. It will suffice merely to answer the questions posed upon this reference.
5 At the outset it is convenient to state the terms of s. 15 of the Act and those of Schedule 3 to the Act to which s.15(9) refers:
“Reports in relation to transfer of currency into or out of Australia
15. (1) Where:
(a) a person:(i) transfers Australian currency or foreign currency out of Australia; or
(ii) transfers Australian currency or foreign
currency into Australia; and(b) the amount of currency involved in the transfer is not less than $5,000 in value;
the person, subject to subsections (2), (3) and (4) commits an offence against this subsection unless a report in respect of the transfer has been given in accordance with this section.
(2) A commercial passenger carrier need not make a report in
respect of
currency in the possession of the carrier’s passengers.
(3) A commercial goods carrier need not make a report in respect
ofcurrency carried on behalf of another person unless the other person has
disclosed to the carrier that the goods include currency.(4) A bank need not make a report in respect of currency transferred, on
behalf of the bank, by a commercial goods carrier.
(5) Where:
(a)
a person (other than a bank) receives Australian currency or foreign currency transferred to the person from outside Australia; and
(b) the amount of currency received is not less than $5,000 in
value;
the person commits an offence against this subsection unless:
(c) a report in respect of the transfer of the currency into Australia had been made in accordance with subsection (1) before the transfer; or (d) a report in respect of the receipt of currency is given in accordance with this section before the end of the period of 30 days commencing on the day of the receipt of the currency.
(6) A person who commits an offence against subsection (1) or (5) is
punishable, upon conviction, by:
(a)
if the offender is a natural person - a fine not exceeding $5,000 or imprisonment for a period not exceeding 2 years, or both: or
(b) if the offender is a body corporate - a fine not exceeding
$25,000.
(7) A report under this section shall: (a) be in the approved form; (b) contain the reportable details in relation to the matter being reported; (c) be signed by the person giving the report; and (d) be given to:
(i) if the transfer is effected by a person taking the currency out of, or bringing it into, Australia with the person - a customs officer; and
(ii) in any other case - the Director
or a customs officer.
(7A) A report under this section, other than a report mentioned in paragraph
(5)(c) or (d), must be given:
(a) if subparagraph (7)(d)(i) applies - at the time the currency concerned is brought into, or taken out of, Australia: and
(b) in any other case - at any time before the transfer takes place. (7B) For the purposes of paragraph (7A)(a), the time at which currency is brought
into Australia by a person is:
(a) if the person:
(i) transfers the currency into Australia when a passenger on an aircraft or ship; and
(ii) after disembarking, goes through an area set apart for customs officers to examine the passports and personal baggage of, and perform other duties in respect of, disembarking passengers and for such passengers to collect personal baggage;
as soon as the person reaches the place in that area at which customs officers examine personal baggage or, if the person does not go to that place, when the person leaves that area: or
(b) in any other case - the first opportunity after arrival in Australia that the person has to give the report under this section.
(7C) For the purposes of paragraph (7A)(a) at the time at which
currency is taken out of Australia by a person is:
(a) if the person:
(i) transfers the currency out of Australia when a passenger on an aircraft or ship; and
(ii) before embarking, goes through an area set apart for customs officers to examine the passports of, and perform other duties in respect of, embarking passengers;
when the person is at the place in that area at which customs
officers examine passports; or
(b)
in any other case - as soon as the person reaches the customs officer who is to examine the person’s passport in relation to the person leaving Australia or, if there is no such examination, the last opportunity before leaving Australia that the person has to give the report under this section.
(8) Where a report under this section is given to a customs officer, the officer shall, as soon as practicable after receipt of the report, forward the report to the
Director.
(8A) For the purposes of this section, if a person:
(a) arranges to leave Australia as a passenger on an aircraft or ship; and(b) for the purpose of leaving Australia, goes towards an aircraft or
ship through an area described in paragraph (7C)(a); and
(c) either:
(i) takes currency into that area; or (ii) has currency in his or her personal baggage; and
(d) does not give a report about the currency when at the place
described in that paragraph;
the person is taken to have transferred the currency out of Australia. (8B) Subparagraph (8A)(c)(i) does not apply to an amount of currency
if the person:
(a)
informs a customs officer at the place described in paragraph (7C)(a) of an intention to spend that amount before embark- ing; and
(b) spends that amount before embarking. (9) In this section:
“reportable details”, in relation to a matter being reported, means the details of
the matter that are referred to in Schedule 3.”
“ SCHEDULE 3 Subsection 15(9) REPORTABLE DETAILS FOR PURPOSES OF SECTION 15
For the purposes of section 15, the following are the reportable details of a transfer or receipt of currency:
1. The amount of currency
2. Whether the currency is Australian currency or foreign currency and, if foreign currency, which foreign currency
3. If the person making the report is to carry the currency into or out of Australia:
(a) the name, address, date of birth and occupation (or, where appropriate, the business or principal activity) of the person;
(aa) the international travel document number and country of issue of the international travel document or international travel documents held by the person:
(b) if the person is not an Australian resident - that person’s address while in Australia;
(c) the name of the city in Australia from which the person is to depart or at which the person will arrive;
(d) the name of the foreign country and the city in that country from which the currency is being imported or to which the currency is being exported;
(e) if the person is to carry the currency on behalf of another
person:
(i)
the name, address and occupation (or, where appropriate, business or principal activity) of that person; and
(ii)
the name and address, and occupation, business or principal activity of the person to whom the currency is to be delivered;
(f) the day on which the person is to enter or leave Australia and the number of the flight or the name of the vessel on which the person is entering or leaving.
4. If the person making the report is mailing or shipping the currency or receiving currency mailed or shipped.
(a) the name, address and occupation (or, where appropriate, business or principal activity) of the person;
(aa) the method by which the person received the currency or by which the person is to send the currency out of Australia; and
(b) the place of despatch and the place of receipt;
(c) the name, address, date of birth and occupation (or, where appropriate, business or principal activity) of the recipient or sender; and
(d) if the person is mailing, shipping or receiving the currency on behalf of another person;
(i) the name, address and occupation (or, where appropriate, business or principal activity) of the other person; and (ii) the name and address, and occupation, business or principal activity of the person to whom the currency is to be delivered; (e) if the person is mailing or shipping the currency - the day on which the mailing or shipping takes place and the day on which the currency is to enter or leave Australia;
(f) if the person is receiving currency mailed or shipped - the day on which the person receives the currency and, if the person knows, the day on which the currency entered Australia.
5. If a person is to carry the currency out of Australia - the name and address of that person.”
6 The arguments advanced on behalf of the Director may be stated shortly. The offence created by s.15(1) of the Act is not one of strict liability and it is conceded that it is necessary for the prosecution to establish mens rea to secure a conviction. However, a requirement that the Crown is obliged to prove that an accused knew that there was an obligation to report the transfer of $5,000 or more is in effect a requirement to prove that he knew that there was a legal obligation upon him to do so. The only source of such a legal obligation is to be found in s.15(1) of the Act.
7 It was contended for the Director that ultimately ruling/number 4 (in paragraph 2 above) is one that requires the prosecution to prove that an accused was aware at time of transfer that he was acting in breach of the provision of s.15(1) of the Act or at least of the legal obligation which is imposed only by that provision before he may be convicted upon a charge brought against him under it.
8 It was contended that although there are cases dealing with offences where knowledge of the law is a requirement - such as Leask v. The Commonwealth of Australia (1996) 187 C.L.R. 579 and in Re Question of Law Reserved (No. 2) of 1998 - Court of Criminal Appeal South Australia - a charge pursuant to s.15(1) of the Act is not one of them.
9 It was contended that upon a proper construction of the Act and accepting the necessity for showing mens rea, to secure a conviction under s.15(1) the prosecution is obliged to prove only that the accused knew at the material time that:-
(1) he had in his possession $5,000 or more; (2) he transferred that currency out of Australia; (3) he had not reported that transfer. 10 In the light of that submission it would seem that the answer to Question (1)(i) - “that the accused knew that he had not reported the transfer” - is conceded to be “yes”. In my view such concession is correctly made.
11 It was contended that the gravamen of a charge under s. 15(1) of the Act is that the accused in fact transferred currency out of Australia without having given a report of the sort required under that section.
12 It was conceded that an offence under s. 15(1) of the Act is not an “absolute” offence and that if for example a person were unaware that he was carrying currency in excess of $5,000 out of Australia or if he had bona fide taken steps to make a report of the sort required under the Act which unknown to him had not been effective, then mens rea could not be established.
13 It is contended, however, that mens rea or “guilty knowledge”, as it is sometimes described, involves only doing an act or making an omission with knowledge of all the facts and circumstances which constitute the offence defined under s.15(1). “Guilty knowledge” does not refer to a state of mind which involves knowledge when the relevant acts and omissions are done or made, that they constitute an offence.
14 For the Director, it is pointed out that where a person is charged under s.15(1) of the Act, a requirement that it be proved that he or she knew at the time of transfer that there is an obligation to report that transfer of currency would make the enforcement of s.15(1) almost impossible without evidence of an admission by that person of such knowledge. Even more difficult would be the enforcement of s.15(5).
15 The difficulties involved in having the legislation operate as obviously intended, if construed in accordance with the challenged direction, is highlighted by the fact that persons may physically transfer currency either into or out of Australia by commercial carriers or even by post. The problems therefore of making s.15(1) and (5) effective if proof of knowledge of their content could not be achieved by notifying persons personally transferring currency into or out of Australia through customs facilities where notice of the obligation imposed by s.15 might be given to them (sometimes perhaps with difficulty due to language problems) are obvious.
16 The respondent was sufficiently interested in the matter to be argued on referral to retain counsel to advance arguments supporting ruling (4) to which I have referred. In particular his counsel argued strongly that to secure a conviction under s.15(1) of the Act, it is necessary to show that an accused “knew at time of transfer that there was an obligation to report such transfer of $5,000 or more”. Reference was made to what was contended to be the current common law position with respect to mens rea (following DPP v. Morgan [1976] A.C. 182) which is to the effect that it cannot be established where an accused person is under an honest mistake of fact - whether that mistake be reasonable or not.
17 While it is interesting to look at the development of the requirement of “an honest mistake” as distinct from "an honest and reasonable mistake" in England, on my reading of Australian cases since DPP v. Morgan [1976] A.C. 182 such as He Kaw Teh v. The Queen (1985) 157 C.L.R. 523 at 590 (per Dawson J.) Walden v. Hensler (1987) 163 C.L.R. 561 at 592 (per Dawson J.) and Jiminez v. The Queen (1992) 173 C.L.R. 572 at p. 581 the position in Australia may not be altogether consistent with DPP v. Morgan (supra); see for example the observations of Brennan J. in He Kaw Teh at 577 and those of Dawson J. in the same case at 591. However, it is unnecessary on this reference to embark upon a consideration of whether the obligation on the Crown on a prosecution under s.15(1) of the Act is to negative beyond reasonable doubt the existence merely of an honest but mistaken belief in the existence of facts or of matters of mixed fact and law or whether it is obliged to negative only the existence of an honest mistake of fact which is also reasonable. By and large the attention of this Court to such considerations relating to criminal responsibility has to date been confined by the terms of s. 24 of the Criminal Code (Queensland).
18 As I understood counsel for Mr Taib, a determination of this point is not necessary for his purposes in answering the questions referred, although he seeks to draw some support for his submissions from DPP v. Morgan (supra) - which of course was a majority decision of 3 to 2 - to adopt as a test for mens rea an honest but mistaken belief. I will therefore not pursue this interesting point upon this reference but confine attention to point (1) (ii) - was the learned Judge correct in his ruling that in order to establish the requisite knowledge or mens rea for an offence against s. 15(1) of the Act the prosecution must prove that the accused knew there was an obligation to report when he made the transfer.
19 Stated shortly it was contended for the respondent that the actus reus of the offence comprises three physical acts or omissions - transfer of the currency, the amount of the currency transferred exceeds $5,000 and failure to report that transfer.
20 It was contended that mens rea:
“follows each of those conduct elements so that to procure a conviction of the charge it must be proved that there was an intent to transfer the money or currency, knowledge that the amount of currency exceeded $5,000 and an intention to omit to make the required report.”
It was contended that one can only “omit” to do something if one knows that there is an obligation of some sort to do it; in the alternative it was contended that an “innocent omission” will not suffice to establish the mens rea required to support a conviction.
21 It was contended that it is an intent to conceal the transfer of the money which is the substance of the offence. To prove an intent to conceal the transfer it was argued that it must be shown that a person charged with the offence knew of an obligation albeit perhaps not in the terms of s.15(1) but nevertheless a legal obligation to make a report of that transfer to the relevant authority. It was contended that if “the omission to report” is the gravamen of the charge then it necessarily follows that the mens rea doctrine requires a knowledge of the obligation to report. It is insufficient to prove merely a failure to report. The respondent’s submission was summed up:
“-- an omission stands in theoretical terms in no different position from an act, except here it is an omission to report and requiring the prosecutor to prove some awareness of the need to report is the extent to which mens rea is implied in this section. That is not to say that the accused must know the law, that is a different matter altogether.”
22 It was contended that the penalty for breach of the obligation under s.15(1) - a fine not exceeding $5,000 or imprisonment for a period not exceeding two years or both supports the proposition that mens rea sufficient to sustain a conviction under s.15(1) of the Act involves a deliberate omission to report the transfer knowing that there is an obligation to do so.
23 When asked whether the object of the legislation on its face is not simply to enable a check to be made on the movement of currency into and out of Australia and is not directed really to do more than enforce a procedure to enable the relevant authorities to keep a check on currency transfers and perhaps to be able to trace the flow of money, it was contended for the respondent that that could not be the only object of the legislation having regard to the size and nature of the maximum penalties imposed for breach of s.15(1).
24 For the respondent some reference was made to authority - such as He Kaw Teh (supra). It was contended that reference to observations made in that case by Brennan C.J., Mason and Dawson JJ. support the proposition that the gravamen of an offence under s.15(1) involving an omission leads to the conclusion that mens rea must involve “an intention to make that omission to report”. It was contended that it is impossible to make that omission intentionally unless the person making it has “some awareness or knowledge of the obligation to make the report”.
25 Summarizing his arguments, counsel for the respondent contended that because a penalty of two years imprisonment or a fine of up to $5,000 or both is the maximum penalty prescribed for a breach of s.15(1) of the Act, the mens rea required involves an intention to avoid a known (or perhaps suspected) obligation to make a report. On the other hand if the penalty were merely a $50 fine the mens rea to be established would not involve proof of an intent to evade a known or suspected obligation. In that case a “failure” to report would involve merely knowledge of the transfer of currency, the amount of currency transferred, and that no report had been made.
26 The respondent placed significant reliance upon a decision of the Court of Criminal Appeal of South Australia on 3 April 1998 in Re Question of Law Reserved (No. 2) of 1998. That case dealt with the mens rea required to establish an offence under s. 33(1) of the Financial Transaction Reports Act 1988.
27 In my view the decision in that case lends little support to the contentions of the respondent as to the requirement for establishment of mens rea for an offence under s.15(1), because s. 31 makes it (to use the section heading) an “Offence to conduct transactions so as to avoid reporting requirements”. It is unnecessary upon this reference to set out in full the terms of s.31. The essence of the section is to prohibit a transfer of currency in sums each of which considered alone is less than $10,000 and therefore within the description of a “non- reportable cash transaction”, if when considered together those sums total a sum which exceeds a sum which is reportable as a “significant cash transaction”.
28 Section 31(1)(b) lists circumstances to be considered in determining the gravamen of
the charge which is:
“That the person conducted the transactions in that manner or form for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in a transaction was transferred in a manner and form that:-
(iii) would not give rise to a significant cash transaction; or (iv) would give rise to exempt cash transactions.”
29 It is obviously the legislative intent in s.31 to prohibit an intentional evasion of known reporting obligations under the Act.
30 One might think in respect of that offence that mens rea would inevitably involve at least knowledge of the legal obligation to report a reportable transaction and an intentional effort to evade it by deliberately converting what in reality is a single transaction involving $10,000 into a series of transactions each for a sum less than $10,000. The adoption of a series of “manner and form” transactions “to ensure” that a specified transaction would not be “effected” would inevitably involve knowledge of the legislative requirement sought to be circumvented.
31 That in my view emerges clearly from the judgments in Re Question of Law Reserved (No. 2) of 1998. In his reasons Doyle C.J. refers to Leask v.The Commonwealth (1996) 187 C.L.R. 579 which considered the terms of s.31(1) of the Act. At p.2 of his reasons he observes:
“If the Act imposed no controls upon a person engaging in a cash transaction it would be relatively easy to evade the operation of the Act. All that one would have to do would be to split a transaction up into a number of transactions involving the physical transfer of currency of less than $10,000 in value. It is no doubt to deal with such evasion that Parliament enacted s.31 which is the provision in question in this case.”
At p.4 of his reasons the Chief Justice referred to those factors in deciding whether a defined offence is “an absolute one” and whether there is a presumption that mens rea or a knowledge of the wrongfulness of an act is an element of an offence created by statute which are conveniently summarized by Gibbs C.J. in He Kaw Teh (supra) at 529-530.
At p. 7 his Honour observed:-
“I consider that s. 31 is intended to prevent evasion of the reporting obligations imposed upon a cash dealer, the evasion being achieved by conducting a transaction with a view to avoiding the occurrence of an act. That purpose suggests that the section is aimed at persons who are aware of the potential significance of the manner in which a transaction is conducted.”
His Honour continued:
“In relation to the reporting of an SCT my view is the Act does not deal with an area of activity in which it makes sense to speak of setting a standard of behaviour that must be observed at their peril by those who enter a particular field. Nor I consider does it make sense in this context to speak of compelling a person to take preventative measures to avoid the possibility of an offence occurring without any deliberate conduct on the part of the offender. As I have said I consider that the sort of conduct at which s.31 is aimed is evasion rather than carelessness or ignorance. Evasion implies an element of knowledge. I do not see much sense in this context in punishing a person who might be unaware of the difference between an SCT and a non-reportable cash transaction.”
His Honour then proceeded to consider the purpose of the legislation and said that the establishment of mens rea for an offence under s.31(1) would, subject to the impact of sub- paragraph (b) involve proof : -
“That the accused person knew that a transaction involving currency of $10,000 or more in value must by law be reported to a government agency and that a transaction involving currency of less than $10,000 in value did not have to be reported to a government agency.”
His Honour observed that it would be necessary to prove that an accused person is aware of the difference between a reportable transaction and a non-reportable transaction but that:
“it should not be necessary to prove that the accused person knows just how or why that difference comes about or what precise obligations to report are imposed upon the relevant cash dealer or some other person.”
His Honour concluded:-
“For these reasons I am inclined to the view that Parliament intended to punish a person only if that person was aware of the difference between a significant cash transaction involving the transfer of currency of not less than $10,000 in value and a non-reportable cash transaction (i.e. one less than $10,000.)”
32 In my judgment the nature of the offence created by s.15(1) of the Act is quite different from that created by s.31(1) of the Act. The conduct proscribed by s.31 is the deliberate conversion of a “significant cash transaction” involving the transfer of currency of not less than $10,000 in value into what purports to be a series of individual cash transactions each of which considered singly is a non-reportable cash transaction but when considered together as involving one amount constitute a significant cash transaction as defined. This is made clear from the structure of the section which talks of adopting a manner and form “ in conducting transactions” so that the transfer of the currency “involved in a transaction” would not be reportable. The conclusion in such a case that knowledge of the obligation sought to be evaded by such a stratagem is essential to mens rea in my view gives no assistance in determining the extent of mens rea to be established in an offence under s.15(1) of the Act.
33 To adopt the language of Doyle C.J., s. 15(1) can be characterised as legislation “setting a standard of behaviour that must be observed at their peril by those who enter a particular field” - that of transferring currency into and out of Australia.
34 I can find nothing in He Kaw Teh or in any of the other authorities to which reference has been made to support the proposition that the proof of mens rea on a charge brought under s.15(1) requires proof of knowledge of an obligation to make a report of a currency transfer which a person has knowingly made out of Australia as well as knowledge that such a report has not been made.
35 Knowledge of the law under s.15(1) in my view is quite irrelevant to mens rea; knowledge of or belief in all the facts which constitute elements of the offence suffices to meet the ordinary requirements of mens rea. Such an approach accords with the common law principle stated by Jordan C.J. in R. v. Turnbull (1943) 44 S.R. N.S.W. 108 at 109 which was affirmed by Brennan J. in He Kaw Teh at p. 572:-
“... it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing. If this be established, it is no defence that he did not know that the act which he was consciously doing was forbidden by law. Ignorance of the law is no excuse. But it is a good defence if he displaces the evidence relied upon as establishing his knowledge of the presence of some essential factual ingredient of the crime charged. (Emphasis added.)”
36 In Reg. v. Churchill [1967] 2 A.C. 224 the House of Lords considered the extent to which mens rea on a conspiracy charge involving the sale of fuel upon which excise duty had not been paid required knowledge that such excise duty had not been paid as distinct from knowledge of the statutory requirement for payment.
37 The principal point in issue in that case throws no direct light on the point to be determined in this case. In fact, it was held in that case where the accused were not shown to have been parties to an agreement to use prohibited fuel in road vehicles, that if on the facts known to them what they had agreed to do was not unlawful, they were not rendered artificially guilty by the existence of other facts not known to them giving a different and criminal quality to the act agreed upon. At p.233-4 Viscount Dilhorne (with whom all other members of the House agreed) referred to observations of Asquith J. in R v. Clayton (1949) 33 Cr. App. R. 113 at 118-119:-
“It was conceded that a person who sells controlled goods to unregistered persons in excess of his quota and a fortiori if he has not any quota commits a breach of the orders whether or not he knows that his action amounts to such a breach and no particular state of mind or intent on his part is a necessary ingredient in the offence which is complete if without more he does what the orders forbid.
...
It was contended that in order to establish this charge the accused must be shown not only to have agreed to the act but to have known it was forbidden by statutory provisions and that mens rea in that sense is required. Now that is a proposition for which no direct authority has been cited and is one which we entirely reject
...
we can find no support for the proposition that mens rea in this sense is needed in the
case of conspiracy
...
the definition of it (i.e. conspiracy) is simply an agreement to do an unlawful act
...
it does not matter how prosaic the unlawful act may be or how ignorant the conspirators may be of the fact that the act is prohibited by the statutory provision.”
His Lordship then referred to the ratio of R v. Jacobs [1944] K.B. 417.
38 He summarized those cases at p.234F as follows:
“In both cases the question raised on appeal was whether it had to be shown that the accused knew that the act which they had agreed to do was unlawful. In neither case was there any dispute that they had agreed to do that which was in fact unlawful.”
His Lordship then dealt with R v. Sorsky [1944] 2 All E.R. 333 and in particular the observation of Humphreys J. at 336 -
“To the same effect is R v. Jacobs in which it was contended for the appellants that the conviction was wrong in that there was no evidence that the vendors were aware that the permitted price had been exceeded. That argument was rejected by this Court it being pointed out in the judgment that a criminal conspiracy consists of the agreement to do an unlawful act without reference to the knowledge on the part of the accused of its illegality.”
His Lordship then observed at 235 l. G:-
“In R v. Wheat & Stocks [1921] 2 K.B. 119 at 126 Avory J. said that the maxim ‘Actus non facit reum nisi mens sit rea’ was admitted to be uncertain and often misleading in its application and that in that case the maxim was satisfied ‘if the evidence establishes an intention on the part of the accused to do the act forbidden by the statute’.”
At 236 his Lordship referred with approval to observations of Lord Goddard C.J. in Johnson v. Youden [1950] 1 K.B. 544 at 546-547:
“Before a person can be convicted of aiding and abetting the commission of an offence he must at least know the essential matters which constitute that offence. He need not actually know that an offence has been committed because he may not know that the facts constitute an offence and ignorance of the law is not a defence. If a person knows all the facts and is assisting another person to do certain things and it turns out that the doing of those things constitutes an offence the person who is assisting is guilty of aiding and abetting that offence because to allow him to say ‘I knew all those facts but I did not know that an offence was committed’ would be allowing him to set up ignorance of the law as a defence.”
His Lordship then dealt with the question canvassed before the House at 237 in the following terms:-
“In answer to the question posed by the Court of Criminal Appeal in this case I would say that mens rea is only an essential ingredient in conspiracy in so far as there must be an intention to be a party to an agreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial and that knowledge of the facts is only material in so far as such knowledge throws a light on what was agreed.
In cases of this kind it is desirable to avoid the use of the phrase ‘mens rea’ which is capable of different meanings and to concentrate on the terms or effect of the agreement made by the alleged conspirators. The question is ‘what did they agree to do?’ If what they agreed to do was on the facts known to them an unlawful act they are guilty of conspiracy and cannot excuse themselves by saying that owing to their ignorance of the law they did not realize that such an act was a crime. If on the facts known to them what they agreed to do was lawful they are not rendered artificially guilty by the existence of other facts not known to them giving a different and criminal quality to the act agreed upon.”
39 This is an authoritative statement of the common law that mere ignorance that a voluntary act or omission is contrary to criminal law is never sufficient to negative mens rea. It was applied in Attorney-General’s Reference (No. 1 of 1995) [1996] 1 W.L.R. 970 where at 980 it was observed:-
“Here we are satisfied that the correct approach is that suggested on behalf of the Attorney-General. A director who knows that acts which can only be performed by the company if it is licensed by the bank, are being performed when in fact no licence exists and who consents to that performance is guilty of the offence charged. The fact that he does not know it is an offence to perform them without a licence, i.e., ignorance of the law, is no defence.”
Thus in R. v. Esop [1836] 7 C.A.R. at p. 457; 173 E.R. 203 Bosanquet J. and Vaughan J. considered a case where a foreigner was committed for trial for an act done on a British ship which would not have constituted an offence in his own country.
40
For the prisoner it was argued -
“In the country from which the prisoner comes it is not considered an offence: and a person who comes into this country and does an act believing that it is a perfectly innocent one, cannot be convicted according to the law of England. A party must know that what he does is a crime.
...
If a person is unconscious that he is doing a wrong act or believes that it is a right or innocent act he is exonerated ...”
Bosanquet J. held:
“I am clearly of opinion that this is no legal defence.”
Vaughan J. observed:
“Where is the evidence that it is not a crime in the prisoner’s own country?
But if it is not a crime there, that does not amount to a defence here ...”
The prisoner in that case as a matter of interest was acquitted on other grounds.
41 The argument unsuccessfully advanced in that case so long ago seems similar to the argument advanced on behalf of the respondent in the present case.
42 Sixteen years after Esop’s case a strong court of Queen’s Bench dealt with a similar contention in R v. Barronet & Allain (1852) Dears. 51; 169 E.R. 633. That was a case where an application was made for bail by two foreigners charged with wilful murder. Both prisoners had confessed to having acted as seconds in a duel which resulted in the death of one of the participants. By the foreign law with which they were familiar, they would not have been guilty of wilful murder if in the circumstances “the duel was a fair one”. Apparently all persons connected with the duel were foreigners. The fact that the prisoners did not know that by the law of England the killing of an adversary in a fair duel amounted to wilful murder was not sufficient ground for admitting either of the seconds to bail.
43 In delivering the leading judgment Lord Campbell C.J. observed at 635:
“... but after what has been said on the subject generally I consider it my duty to make some few observations. These two persons are placed in exactly the same situation as if they were native born subjects of this Kingdom and will have the same justice administered to them as would be administered to native born subjects.
...
Persons who fly to this country as an asylum must obey the laws of the country and be content to place themselves in the same situation as native born subjects ...”
Coleridge J. at 636 observed:
“... we are told to lay down a different rule to what we should apply to native
born subjects, because these persons are foreigners and ignorant of our law
relating to duelling. But I agree with the Lord Chief Justice that foreigners
who come to England must in this respect be dealt with in the same way as
native subjects. Ignorance of the law cannot in the case of a native be received
as an excuse for a crime, nor can it any more be urged in favour of a foreigner
... ”.
Erle J. at.636 observed:“... to make a difference in the case of foreigners would be a most dangerous practice. It is of great importance that the administration of the law should be uniform ...”
44 I refer to these earlier authorities which on their face in my view, support the observations made in later authorities such as R. v. Turnbull (supra) and R. v. Churchill (supra) and the cases analyzed therein, because it was contended for the respondent that proof of knowledge of the legal obligation to make a report upon the transfer of currency into or out of Australia might operate unfairly in the event that a foreigner effected such a transfer having no knowledge of an obligation of the sort imposed by s. 15(1) of the Act and where perhaps in his country and other foreign countries in which he has travelled there is no similar obligation.
45 For the reasons stated so forcefully in the Courts of Common Law 150 years ago to which I have referred, to alter the nature or extent of mens rea to accommodate persons from different countries with different rules of law so that upon their prosecution in Australia for an offence against Australian law it is necessary to prove their knowledge of an obligation imposed by Australian law and their intention to evade its performance whereas upon trial of an Australian citizen for such an offence the ordinary rule relating to ignorance of the content of the criminal law having no relevance upon a criminal trial is applied, would be unsupportable.
46 Indeed, it was not directly submitted that there should be a difference in the extent of mens rea to be established depending only upon whether the person charged was an Australian citizen. As I understand the argument advanced on behalf of the respondent the “perceived injustice” of convicting a foreigner of a criminal offence for an act which did not constitute an offence in his country or other countries with which he is familiar is a reason to so construe the requirements for mens rea upon a s.15(1) charge as to require proof of knowledge of its effect to support an inference of intentional evasion upon the trial of all persons, whether or not Australian citizens, charged with a breach of that section.
47 I find that argument unsupportable on the authorities and quite unpersuasive on
general principle.
48 It should be mentioned that to say that the prosecution must prove that the accused “knew he had transferred the cash out of Australia” - see answer 1(ii) below - means no more, in such a case as the present, than that he knew he had done the acts which by virtue of s.15(8A) would result in his being “taken to have transferred the currency out of Australia”. The prosecution need not prove he knew the effect of that sub-section.
49 I would answer the points raised in the reference as follows:-
1. The learned trial Judge was correct in his ruling that in order to establish the requisite knowledge or mens rea for an offence against s.15(1) of the Financial Transaction Reports Act the prosecution must prove the elements -
(i) That he (the accused) knew that he had in his possession $5,000 or more; (ii) That he knew that he had transferred the cash out of Australia; (iii) That he knew that he had not reported that transfer; 2. The learned trial Judge was not correct in his ruling that in order to establish the requisite knowledge or mens rea for an offence against s.15(1) of the Financial Transaction Reports Act the prosecution must also prove:-
(iv) That the accused knew that there was an obligation to report such transfer of
$5,000 or more.3. It was not necessary for the prosecution to prove that the accused knew that there was any obligation whether imposed by the Financial Transaction Reports Act or otherwise, to report such transfer of $5,000.
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