Decision
50 One element of the offences charged under s.31(1) is that SEF must have been "party to two or more non-reportable cash transactions", that is, so far as relevant, cash transactions not "involving the transfer of currency of not less than $10,000". In relation to counts 51 and 52, this required that the events of 6 September 1999 amounted to SEF being a party to five cash transactions each involving the transfer of currency of less than $10,000.00.
51 The evidence showed that Tony filled in forms relating to the issue of American Express travellers cheques to the face value of US$3,500.00 in the name of Patrick Hoffman, US$6,000.00 in the name of Albert Rafter; US$6,000.00 in the name of George Davis; US$6,000.00 in the name of John Adams; and US$5,000.00 in the name of Tony Collins; and handed over an amount which, together with the $14,000.00 previously handed over, made up a total of $43,600.00 in return for these cheques; and that subsequently SEF recorded these events in its computer as five transactions involving those amounts in US dollar travellers cheques, with five slightly different exchange rates, and amounts in Australian dollars in respect of each transaction appropriate to the amount of the travellers cheques and the exchange rate for that transaction.
52 It is true that, as submitted by Mr. Game, those circumstances may, considered as a whole, mean that SEF was party to a cash transaction involving the transfer of currency of not less than $10,000.00. But in my opinion, that does not necessarily mean that those circumstances do not also mean that SEF was also party to five cash transactions each involving the transfer of currency of less than $10,000.00. This may be illustrated by considering two scenarios.
53 First, suppose that A, B and C each give D $9,000.00; and then A, B, C and D go together to a cash dealer. D hands over $36,000.00, and each of A, B, C and D fill out forms for travellers cheques representing A$9,000.00. The cash dealer issues travellers cheques in those four names, and records the events as four separate transactions, one each with A, B, C and D. In those circumstances, it seems to me that there are simply four non-reportable transactions, each involving the physical transfer of $9,000.00, not withstanding that the money was handed over in one lot of $36,000.00. I do not think those events could be characterised as being a single transaction: that characterisation would not be true as a matter of substance.
54 Secondly, suppose that D goes alone to the cash dealer, hands over $36,000.00, and fills out forms for travellers cheques in the names of A, B, C and D where A, B and C are fictitious. Travellers cheques equivalent o $9,000.00 are issued in each of the four names, and the events are recorded as four separate transactions in the books of the cash dealer. In my opinion, these events can be regarded as amounting both to one significant cash transaction, and also as four transactions, none of which is a significant cash transaction. Although the same parties are involved in all four transactions, and only one sum of money is handed over, the parties to the transaction by their conduct manifested an intention that there be four transactions. In those circumstances, in my opinion a characterisation of the events as one transaction is true as a matter of substance, and characterisation of the events as four transactions is also true as a matter of substance; and these two characterisations are not inconsistent.
55 In my opinion, the terms of s.31(1) confirm this view. They refer to a person being a party to two or more non-reportable transactions for the purpose of ensuring or attempting to ensure that the currency was transferred in a manner and form that would not give rise to a significant cash transaction. The specific reference to "attempting to ensure" shows that the provision contemplates that the conducting of transactions as two or more non-reportable transactions may not be successful in ensuring that they do not also constitute a significant cash transaction.
56 Turning to the events of 6 September, in my opinion there was a transaction whereby Tony obtained a number of travellers cheques in return for a physical transfer of currency of $43,600.00. In my opinion, there was also a transaction whereby Tony obtained travellers cheques for US$3,500.00 in the name of Patrick Hoffman, in return for the physical transfer of cash, namely so much of the $43,600.00 as was or would be allocated to that transaction, that is, $5,756.00. That transaction did not involve the transfer of $10,000.00 or more, because the remainder of the $43,600.00 did not concern this transaction.
57 The same analysis would apply to each parcel of travellers cheques issued in the different names. The analysis is appropriate, in my opinion, because that is what both parties, as shown by their actions, intended at the time of their dealing with each other. But if $43,600.00 had been handed over with no parts allocated to different transactions, there would have been no transaction other than a transaction involving the transfer of a sum of $10,000.00 or more.
58 On that analysis, the direction given by the trial judge was erroneous. It was not correct to say, as the trial judge said to the jury, that if SEF entered up in its books what in reality was one transaction as a number of smaller transactions, each under $10,000.00, then SEF would be a party to a number of transactions, each under $10,000.00. Rather, the jury should have been directed that it was necessary for them to find beyond reasonable doubt that, at the time when Tony and SEF were dealing with each other, their intention as shown by their actions was that there be a number of separate transactions and that there be allocated to each of these separate transactions a part of the total money transferred, that part being less than $10,000.00.
59 In order to find the appellants guilty on these counts, the jury must have accepted Ms. Malik's evidence and rejected that of Mr. Narayanan. It could be said that, in those circumstances, a finding as to the relevant intention was inevitable. However, the misdirection concerned a point which was well and truly taken at the trial, and it did concern an essential element of the offence with which the appellants were charged. I do not think the direction can be treated as immaterial; so that if the appeal is to be dismissed, it can only be by application of the proviso. I will consider that matter when I have considered the other grounds of appeal.