400 The notice of appeal expresses three grounds of appeal directed specifically at these counts, but the challenge was more discretely defined in the course of the submissions. The appellant contends that the summing up was deficient in the manner in which both counts were addressed.
401 Each of the second and the third counts charged the appellant with offences under s 31 of the Financial Transaction Reports Act 1988. Section 31 of that Act provides:
"(1) A person commits an offence against this section if:
(a) the person is a party to 2 or more non-reportable cash transactions; and
(b) having regard to:
(i) the manner and form in which the transactions were conducted, including, without limiting the generality of this, all or any of the following:
(A) the value of the currency involved in each transaction;
(B) the aggregated value of the transactions;
(C) the period of time over which the transactions took place;
(D) the interval of time between any of the transactions;
(E) the locations at which the transactions took place; and
(ii) any explanation made by the person as to the manner or form in which the transactions were conducted;
it would be reasonable to conclude 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 the transactions 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."
402 Section 3 defines "non reportable cash transaction" as meaning
"a cash transaction:
(a) to which a cash dealer is a party; and
(b) that is not a significant cash transaction…"
403 "Cash dealer" is defined in s 3 as including "a financial institution" which, in turn, is defined as including "a bank".
404 A "significant cash transaction" is defined in s 3 as meaning "a cash transaction involving the transfer of currency of not less than $10,000 in value."
405 Section 7 requires a bank which is party to a cash transaction involving not less than $10,000 to report such transaction to the Director of Austrac.
406 The second count charged the appellant with being "a party to two or more non reportable transactions", as defined under the above statute,
"and having regard to the manner and form in which those transactions were conducted, it would be reasonable to conclude that he conducted those transactions in that manner and form for the dominant purpose of ensuring that the currency involved in those transactions was transferred in a manner and form that would not give rise to a significant cash transaction..."
407 The indictment particularised the non reportable cash transactions as being six withdrawals of cash effected on 9 September 1996 from a particular account of the appellant with the Commonwealth Bank. The withdrawals were particularised as having been effected from six different branches, four of the withdrawals being in the sum of $9000, one in the sum of $9900, and the remaining one being in the sum of $6000.
408 The third count charged the appellant with being "a party to two or more non reportable cash transactions", and was framed in terms similar to the second count, but in respect of this count the particulars of the non reportable cash transactions related to payments of cash in order to obtain bank cheques payable to "Perpetual Trustee Co. Limited - Ord Minnett Cash Management Trust". This count particularised nine transactions, again effected on 9 September 1996. The payments of cash were allegedly made to, and the bank cheques were allegedly obtained from, nine bank branches, none of which was a branch from which a withdrawal particularised in the second count was allegedly effected. The appellant allegedly made payments ranging between $9000 and $9010 for the nine bank cheques. Three of these cheques were obtained from branches of the Commonwealth Bank, two from branches of the ANZ Bank, two from branches of the National Bank and two from branches of Westpac.
409 The case for the Crown proceeded throughout the hearing upon the basis that the withdrawal count, being the second count, and the payment count, being the third count, addressed six and nine transactions respectively. All fifteen transactions, that is the six withdrawals and the nine cash transactions, occurred on the same day. This was after the appellant had made three withdrawals on 6 September 1996 in amounts of $20,000, $10,000 and $10,000. When withdrawing the $20,000, according to a bank officer, Mr Bullock, the appellant signed a form which included the statement:
"This report is to be completed by a cash dealer in respect of a transaction of $10,000 or more and a copy forwarded to the Director, Cash Transactions Report."
410 The Crown relied upon this document as establishing that the appellant had been made aware of the requirement of the Financial Transaction Reports Act before entering into any of the transactions to which counts two and three related. That, save for the withdrawal of $6000 being the last of the withdrawals on 9 September 1996, the remaining transactions were all for amounts of just under $10,000 was a matter upon which the Crown relied on both counts in relation to the elements arising under s 31(1)(b) of the statute.
411 The Crown put its case to the jury under the second count upon the basis that the appellant made each of the six withdrawals, and, indeed, there was no dispute at the trial that the appellant made all the relevant withdrawals. This was admitted in the appellant's submissions in this Court. The contentious issues under the second count arose under s 31(1)(b). The Crown's contention was that the nine cheques the subject of the third count were sent to and received by Ord Minnett on 9 September 1996 under cover of a letter requesting their deposit in the cash management trust account in the name of "M. Booth, Suite 140, 656 Military Road, Mosman, Investor No. B3133". The Crown's further contention, of course, was that the appellant was "M. Booth".
412 There was evidence led in relation to all the particularised transactions, and charts and diagrams were provided to the jury seeking to establish the appellant's participation in all the particularised transactions.
413 Whilst the Crown sought to establish that the appellant was a party to each of the "non reportable cash transactions" particularised in both counts, the jury was ultimately directed that it would suffice for the Crown to prove that the appellant was a party to two or more of such transactions. It is necessary to consider the course of the directions given to the jury.
414 In the course of her summing up (AB 2088) her Honour instructed the jury on the second count, after reminding the jury of the evidence concerning the transactions:
"…and all are cash transactions, and taking place at different braches of the Commonwealth Bank of Australia.
So far as these transactions are concerned, all of the withdrawals were made on the account of Mr Hannes at the Commonwealth Bank of Australia, his account was at the Wynyard Branch…
In any event that is the evidence in relation to those transactions upon which the Crown relies for the commission of the offence, and in relation to those withdrawals there is no dispute the money was drawn from Mr Hannes' account, and there is no dispute that he in fact withdrew the money in respect of each of those transactions.
Now in relation to those withdrawals they were dealt with in his record of interview, he admits that he withdrew the cash, the subject of the withdrawals on 9 September 1996 from the Commonwealth Bank of Australia at various branches, and so far as that part of the offence - that is in the second charge in the indictment - so far as that part of the offence is concerned that is the actual non reportable, his entering into two or more non reportable transactions, the evidence is that he did those transactions at a bank, so it would, I suggest, not cause you any problem in coming to a view that those transactions being non reportable transactions and that there are more than two of them, and that they were entered into by Mr Hannes."
415 Turning to the third count, her Honour instructed the jury (AB 2091), after reviewing the Crown case as to the various payments:
"Mr Hannes admits that he obtained some of these bank cheques, but not all of them, so that is the first thing that I must tell you about those transactions which involved the person who is proceeding to obtain the bank cheque.
In each case you have heard evidence as to the manner in which the bank cheque was obtained, the production of money, cash, so that there is no dispute that these were cash transactions, but the issue is whether each of these cheques, whether they were in fact obtained by the accused Mr Hannes and you have heard evidence from the bank officers who came along and told you about the transactions…"
416 Then later (AB 2096):
"The cheques that are relied upon by the Crown in relation to the third charge in the indictment, those cheques total $90,900 and all of them were deposited with the Ord Minnett Cash Management Trust Account in the name of Mark Booth, with investor account number B3133.
So far as this charge is concerned - I have told you what the defence that the - what the defence has had to say in relation to some of these, that it puts in issue some of the transactions which are particularised in charge 3. So members of the jury, you have to be satisfied beyond reasonable doubt that the accused Mr Hannes was the person who entered into the transactions, that is each of the nine transactions which are particularised in the indictment.
The Crown case is that Mr Hannes purchased those cheques, using a false name, that is the name of M. Booth and again you will need to be satisfied by the Crown that the person referred to as Mr Booth is in fact Mr Hannes."
417 Her Honour then went on to give the jury some directions concerning both the second and the third counts as to the requirements of s 31(1)(b).
418 Subsequently, however, on the submission of the Crown and contrary to the submission advanced for the appellant, the judge redirected the jury on the third count (AB 2118):
"So far as the third charge is concerned, that is the third charge in the indictment, that is the charge that deals with the bank cheques. Contrary to what I said yesterday that you needed to be satisfied in respect to each of the bank cheques, were transactions made by the accused, I direct you as follows, that you do not have to be satisfied that all the bank cheques particularised by the Crown in the indictment with respect to this charge, were obtained by Mr Hannes. It is sufficient for the offence to be committed that you are satisfied beyond reasonable doubt that Mr Hannes obtained two or more of those bank cheques particularised in the charge . The Crown relies on all nine in its case, but you only have to be satisfied that Mr Hannes obtained two or more of them for the offence to have been committed. That goes to that aspect of the charge…
So for the purposes of this offence, that is the charge 3, the number of transactions relied upon by the Crown is 9 and the aggregate value of those transactions is 81,900 but you only need to be satisfied beyond reasonable doubt in respect of two or more transactions for the offence in charge 3 to have been committed."
(Emphasis added)
419 Her Honour then returned to the second count and gave the following direction in relation to it (AB 2119):
"Turning to the charge in count 2 of the indictment, the Crown relies on six transactions, they are the cash withdrawals, but it is sufficient for the offence to have been committed if you are satisfied beyond reasonable doubt that two or more non-reportable transactions were made by Mr Hannes…"
(Emphasis added)
420 Earlier the jury had been given a direction in standard form as to the need for unanimity (AB 2013):
"We do not, in this State, recognise majority verdicts. That is not to say that each of you must agree upon the same reasons for your verdicts. You may individually rely upon different parts of the evidence, or place a different emphasis upon parts of the evidence. However, by whatever route you each arrive at your decisions, the final decision of either guilty or not guilty in relation to each charge, must be the decision of all of you, unanimously, before it can become your verdict."
421 However the jury, having been instructed that the appellant could be convicted if the jury was satisfied on each of the second and the third counts of the necessary elements in respect of "two or more cash transactions", was not instructed of the need for unanimity in findings in respect of the same transactions. The absence of any such instruction is relied upon as a ground of appeal in respect of both the second and the third counts, and indeed this absence was of the essence of the appeal on these two counts. As Senior Counsel expressed it in oral submissions:
"The vice in the case in the end is that the jury were not told that they all must agree on which transactions satisfied the test."
422 KBT v The Queen (1996-97) 191 CLR 417 is in point. This case concerned the prosecution of an alleged offender under the Queensland Criminal Code for maintaining an unlawful relationship of a sexual nature with a child under the age of sixteen years. This required proof of the commission of acts of a particular kind on three or more occasions. The complainant gave evidence at the trial of various incidents which involved acts committed by the accused. The judge directed the jury that in order to convict the accused the jury must be satisfied beyond reasonable doubt that on at least three occasions within the period charged the accused had, for instance, unlawfully and indecently dealt with the child. However the jury was not instructed that it had to be unanimous in finding that the accused had done the same three acts. The High Court held that the conviction should be quashed. In their joint judgment Brennan CJ, Toohey, Gaudron and Gummow JJ said at 424:
"Having regard to the evidence, it is possible that individual jurors reasoned that certain categories of incident did not occur at all but that one or two did, and more than once, thus concluding that the accused did an act constituting an offence of a sexual nature on three or more occasions without directing attention to any specific act. It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts (See S v The Queen (1989) 168 CLR 266 at 287-288, where this problem was considered in relation to the application of the proviso to s 689(1) of the Criminal Code (WA), a provision not materially different from s 668E(1A) of the Code). Indeed, it may be that, had the jury been properly instructed, they would have concluded that the nature of the evidence made it impossible to identify precise acts on which they could agree. It follows that the accused was deprived of a chance of acquittal that was fairly open."
423 It was submitted that the way these two counts were left to the jury it was possible that the individual members of the jury did not base their finding of guilt upon precisely the same transactions, so that it was possible that the verdicts announced on the second and the third counts were not strictly unanimous.
424 The Crown sought to meet this submission in several ways.
425 Firstly, reliance was placed upon a later direction in the summing up (AB 2208-2209):
"You will recall that I directed you yesterday that you only have to be satisfied in respect of two transactions and this applies to both counts. If you are satisfied that there were - in respect of each of the offences, that is the charges in two and three, if you are satisfied, beyond reasonable doubt, that the accused, Mr Hannes, entered into two or more transactions, then that is sufficient for the purposes of the commission of the offence, but in making your assessment, as to whether or not the transactions were done in a manner and form for the sole or dominant purpose of avoiding the provisions of the Financial Transactions Act you would only take into account those ones that you are satisfied were entered into by Mr Hannes, so I direct you that that is the way that you should approach the assessment, in other words, you firstly must be satisfied that he entered into two or more transactions and then, having made that determination, you only take into account, in that assessment, those ones which you have reached the determination that they were entered into by the accused, Mr Hannes."
426 The above direction, however, failed to alert the jury to the need for unanimity on the two transactions selected, and it did not address the problem identified in KBT (supra).
427 The Crown next submitted that this was, on a proper analysis, an "all or nothing" case, in the sense that there was no room for proof that the appellant was party to some but not all the transactions, or for a different conclusion to be reached for the purposes of s 31(1)(b) for some but not all the transactions. Hence, it was argued that the proviso to s 6 of the Criminal Appeal Act should be applied.
428 This submission calls for separate consideration of the second and the third counts.
429 As to the second count, as was earlier observed, there was no issue but that the appellant made all the withdrawals. Hence s 31(1)(a) was satisfied for all six withdrawals.
430 Turning to s 31(1)(b), the appellant gave the same explanation for the making of all the withdrawals when interviewed by ASC investigators. The Crown, of course, relied upon the admissions made in the course of the appellant's explanation for the withdrawals. This explanation appears at pp 24-25 of the record of interview (AB 3748-3749). Summarising what the appellant there said, it was to this effect: