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Court of Criminal Appeal 12 March 1999

REGINA v LEASK

[1999] NSWCCA 33

Fraud & dishonesty
CRIMINAL LAW MENS REA

Citation: Regina v Leask [1999] NSWCCA 33
Court: New South Wales Court of Criminal Appeal
Date: 12 March 1999
Judge(s): McInerney J, Hulme J, Barr J

Background

The appellant was convicted in the District Court on 42 counts of an offence under section 31(1) of the Cash Transaction Reports Act 1988 (Cth), now known as the Financial Transaction Reports Act. The offence, commonly called "structuring," involves deliberately breaking up cash transactions so that none individually reaches the $10,000 threshold requiring bank reporting to a government authority. The appellant was fined $765 on the first count and $835 on each remaining count following conviction on 20 January 1998.

The appellant challenged his conviction on the grounds that the trial judge had misdirected the jury on several elements of the offence, including the mental element (mens rea) required and the standard of proof applicable to the statutory phrase "it would be reasonable to conclude."

The constitutional validity of section 31(1) had already been upheld by the High Court in Leask v Commonwealth of Australia (1996) 187 CLR 579, so the appeal turned entirely on matters of statutory construction and jury direction.

  • What level of knowledge (mens rea) must the prosecution prove to establish the paragraph (a) element of section 31(1), specifically whether an accused must know that transactions below $10,000 are non-reportable by law?
  • Did the trial judge misdirect the jury on the standard of proof required in relation to the phrase "it would be reasonable to conclude" in section 31(1)(b)?
  • Did the trial judge's directions adequately require the jury to assess whether the accused personally had the proscribed sole or dominant purpose under section 31(1)(b)?

Decision

On mens rea under paragraph (a): Hulme J (with whom McInerney J agreed, and Barr J reaching the same result) examined competing judicial approaches to the mental element. The Court preferred the formulation in Leask v Commonwealth from Brennan CJ, which requires proof only that the accused's actions were voluntary and that the accused knew the facts giving the transactions the character of non-reportable cash transactions. The Court rejected the additional requirement, adopted in R v Dinh Hue Tran by Doyle CJ, that the prosecution must also prove the accused knew of the legal distinction between reportable and non-reportable transactions.

Hulme J reasoned that the additional element in Dinh Hue Tran amounts to requiring knowledge of the law itself, not merely knowledge of the underlying facts. The established principle is that an accused need not know an act is illegal; it is sufficient to know the facts rendering the act criminal. Paragraph (b) of the subsection, which focuses on purpose and objective circumstances, adequately captures the policy concern about conscious wrongdoing without needing to import a knowledge-of-law requirement into paragraph (a).

On the "reasonable to conclude" standard: The Court accepted that this phrase in section 31(1)(b) goes to the standard of inference available from objective facts rather than imposing a further standard of proof upon the prosecution. The trial judge had directed the jury to be satisfied beyond reasonable doubt that it was "reasonable to conclude" the accused had the relevant purpose. That direction was, if anything, more favourable to the appellant than strictly required, and thus did not constitute a legal error warranting a new trial.

On subjective purpose: The Court found the trial judge's directions adequately conveyed to the jury that they were to determine the accused's own sole or dominant purpose in conducting the transactions. The directions explicitly pointed the jury to the appellant's personal purpose and did not, as submitted, invite an impermissibly objective analysis.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence refused.

Key Takeaways

  • A conviction under section 31(1) of the Financial Transaction Reports Act does not require proof that the accused knew of the legal obligation to report significant cash transactions. It is sufficient that the accused voluntarily engaged in the transactions knowing the facts that made each a non-reportable cash transaction.
  • The Court of Criminal Appeal declined to follow the broader mens rea formulation in the South Australian decision of R v Dinh Hue Tran, which would have required proof of the accused's awareness of the legal distinction between reportable and non-reportable transactions.
  • Under section 31(1)(b), the phrase "it would be reasonable to conclude" operates as a standard governing the permissible inference from objective circumstances, not as an additional element requiring proof beyond reasonable doubt on top of the jury's ordinary standard.
  • A direction to the jury that went further than strictly required, by directing proof beyond reasonable doubt of the "reasonable to conclude" element, did not constitute a ground for overturning the conviction because it favoured the appellant.
  • Where a sentence is well within the sentencing court's proper discretion and no submissions are advanced in support of a leave application, the Court of Criminal Appeal will refuse leave to appeal against sentence.

Legislation and Cases Referenced

Legislation:
- Cash Transaction Reports Act 1988 (Cth), s 31(1) (now the Financial Transaction Reports Act)
- Evidence Act 1995 (NSW), ss 97, 98, 101

Cases:
- Leask v Commonwealth of Australia (1996) 187 CLR 579 (High Court)
- R v Dinh Hue Tran (1998) 38 ATR 19 (South Australian Court of Criminal Appeal)
- He Kaw Teh v R (1984-85) 157 CLR 523 (High Court)