Regina v Xin Gong

[2002] NSWCCA 43

CITATION:	Regina v Xin Gong [2002] NSWCCA 43
FILE NUMBER(S):	CCA 60580/01
HEARING DATE(S):	6 February 2002
JUDGMENT DATE:	6 February 2002
PARTIES :	Regina Xin Gong
JUDGMENT OF:	Wood CJ at CL at 10&12; Sully J at 1; Dowd J at 11

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0162
LOWER COURT JUDICIAL OFFICER :	Nield DCJ

COUNSEL :	M. Allnutt - Crown B. Levet - Applicant
SOLICITORS:	Commonwealth DPP Duker & Associates - Applicant
LEGISLATION CITED:	Financial Transaction Reports Act 1988 Criminal Appeal Act
DECISION:	No jurisdiction to entertain proceedings

60580/01

WOOD CJ at CL
SULLY J
DOWD J

Wednesday 6 February 2002

regina v xin gong

Judgment

1 SULLY J: Before the Court is an application which purports to be an appeal brought pursuant to s5F of the Criminal Appeal Act against an interlocutory judgment of his Honour Judge Nield of the District Court.

2 Section 5F applies, relevantly, to proceedings for the prosecution of offenders on indictment in the District Court. The Attorney General or the Director of Public Prosecutions has an appeal as of right against an interlocutory judgment given or made in proceedings to which this section applies.

3 Any other party to such proceedings does not have such a right of appeal, but may appeal pursuant to s5F either with the leave of this Court, or without the need to obtain first such leave if in the particular case the Judge who has given the interlocutory judgment certifies that the judgment is an appropriate one for determination on appeal.

4 His Honour Judge Nield has given a certificate which purports to satisfy those latter requirements of s5F. The certificate refers to the desirability, in his Honour’s view, of the determination on appeal of the question whether he was in error in holding that:

(1) the Crown has to prove that the accused had not given, at the time of transfer, a report as required by s15(1) of the Financial Transaction Reports Act 1988 in respect of his transfer of $160,000 in Australian currency notes out of Australia rather than to prove that the accused knew that he had not given such a report in respect of such transfer; and

(2) a belief of the accused that a report need be given only for money brought into Australia, could not operate as a defence to a charge brought under s15(1) of the Act in respect of moneys transferred out of Australia.

5 It is trite that the questions raised by that certificate are questions of significance for the proper enforcement, interpretation and application of the relevant provisions of the Financial Transaction Reports Act 1988, in the light of the law as it stood on 5 May 2000, the day upon which the foundational offence was said to have been committed.

6 There is a threshold question now raised as to the jurisdiction of this Court to entertain properly, pursuant to s5F, the appeal covered by the Judge’s certificate. It is unpalatable to have to hold that there is no jurisdiction to deal with questions of such importance when they have drawn from the learned District Court Judge expressions of opinion embodied in what is said to be an interlocutory judgment; and which expressions of opinion raise clearly for decision, and for appropriate appellate consideration, the particular matters to which his Honour’s certificate refers.

7 Nevertheless, unpalatable or not, it is my view that jurisdiction does not exist such as would entitle this Court to embark now, and pursuant to s5F of the Criminal Appeal Act, upon the appellate review of the opinions expressed, relevantly, by his Honour in the judgment published by him on 20 July 2001.

8 That is so, put simply, because in my opinion there are not yet on foot proceedings on indictment in the District Court such as can provide a framework within which such a ruling as his Honour was persuaded to give can be fitted as being in truth an interlocutory judgment or ruling.

9 For those reasons, it seems to me that the present proceedings in this Court are not well founded. In my opinion, the Court should deal with them by expressing the view that it has no jurisdiction to entertain them. That is the order that I propose.

10 WOOD CJ at CL: I agree.

11 DOWD J: I agree.

12 WOOD CJ at CL: The order of the Court will be as Sully J has proposed.

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