REGINA v LEASK [1999] NSWCCA 33

New South Wales Court of Criminal Appeal CITATION : REGINA v LEASK [1999] NSWCCA 33 FILE NUMBER(S) : CCA 60257 of 1998 HEARING DATE(S) : 11 December 1998 JUDGMENT DATE : 12 March 1999

PARTIES : Appellant: Stephen Arthur LEASK Respondent: The Crown JUDGMENT OF : McInerney J at 1; Hulme J at 2; Barr J at 71

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 93/11/0185 LOWER COURT JUDICIAL OFFICER : Keleman DJC

COUNSEL : Appellant: P Byrne SC Respondent: DJ Fagan SC/FA Veltro SOLICITORS : Appellant: G Shelton & Associates Respondent: Commonwealth DPP CATCHWORDS : Criminal Law; Mens Rea Financial Transaction Reports Act S31 ACTS CITED : Evidence Act S97 98 and 101 DECISION : Appeal dismissed.

IN THE COURT OF CRIMINAL APPEAL No 60257 of 1998

McINERNEY J HULME J BARR J

Friday, 12 March 1999. REGINA -v- Stephen Arthur LEASK JUDGMENT

1 McINERNEY J: I agree with Barr J.

IN THE COURT OF CRIMINAL APPEAL No 60257 of 1998 McINERNEY J HULME J BARR J Friday, 12 March 1999. REGINA -v- Stephen Arthur LEASK JUDGMENT

2 HULME J: Stephen Arthur Leask appeals against his conviction, on 20 January 1998, on each of 42 counts alleging an offence against Section 31(1) of the Cash Transaction Reports Act 1988 (Cth). (The Act has since been renamed as The Financial Transaction Reports Act.) On 17 April 1998 the Appellant was fined $765 on the first count and $835 on each other count. 3 To a significant extent the determination of the issues raised in the appeal depends on the proper construction of sub-section 31(1). The sub-section provides:- 31(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. 4 "Non-reportable cash transaction" and a number of other terms are defined in Section 3. So far as is relevant these definitions are:- "Cash dealer" means:- (a) a financial institution; (b) … "Financial institution" means: (a) a bank; (b) … "Non reportable cash transaction" means a cash transaction: (a) to which a cash dealer is a party; and (b) that is not a significant cash transaction or is an exempt cash transaction. "Significant cash transaction" means a cash transaction involving the transfer of currency of not less than $10,000 in value. Section 3 contains the usual reservation "unless the contrary intention appears". 5 It is unnecessary to refer to those provisions of the Act which define or describe an "exempt cash transaction". It is clear that the transactions with which the Appellant was concerned did not fall within this description. It may however be noted that, by s4, the expressed objects of the Act are to facilitate the administration and enforcement of taxation and other laws of the Commonwealth and other provisions of the Act are directed to ensuring that significant cash transactions are reported by banks and other cash dealers to an officer of the Australian government. 6 The constitutional validity of s31(1) was challenged by the appellant but upheld in Leask v Commonwealth of Australia (1996) 187 CLR 579. In the course of their reasons for the decision made in that case the judges of the High Court made a number of observations relevant to the operation of the sub-section but because these were not definitive, it is necessary to make some observations of my own. 7 On its face, sub-section 31(1) is expressed in restrictive terms. It states that a person commits an offence if two conditions are satisfied. Paragraph (a) stipulates that a person be a party to two or more "non-reportable cash transactions". When regard is had to the further definition of the expressions used in the definition of "non-reportable cash transaction" the latter expression may be seen to mean:- "A cash transaction: (a) to which a cash dealer (a term which includes a bank) is a party; and (b) that is not a significant cash transaction (i.e. a cash transaction involving the transfer of currency of not less than $10,000 in value) or is an exempt cash transaction." 8 Whether the requirements of the paragraph are met is a simple factual inquiry although, as the inquiry arises in the context of the criminal law, implicit in it is whether the actions of an accused were voluntary, and whether "he knew of the facts which gave the transactions the character of 'non-reportable cash transactions'". In Leask v Commonwealth of Australia (at 592), this was the view of Brennan CJ who took the view that this was the extent of mens rea required. 9 In R v Dinh Hue Tran (1998) 38 ATR 19, Doyle CJ, with whose reasons Cox and Duggan JJ agreed, elaborated on this formulation of the issues which arise under sub-section 31(1), saying:- "In my opinion proof of guilt of an offence against Section 31(1) requires, at the least, stating that the Section required, at the least, that it be proved:- · That the accused person knew that he or she was a party to a transaction that involved the physical transfer of currency; · That the accused person was aware of the facts that made another party to the transaction a cash dealer for the purposes of the Act; · That the accused person knew that the amount of currency involved in each transaction had a value of less than $10,000. To require proof of that much is to require proof of knowledge of the facts that make the transactions "non-reportable cash transactions"." 10 However, disagreeing with Brennan CJ, Doyle CJ, went further, expressing the view that there is another aspect of the mental element that must be proved, viz- · 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. 11 His Honour went on to say that he considered guilt would be established only if the accused person has knowledge of the facts that attracted the operation of s 31(1)(a) and knowledge of the circumstances that attended its occurrence and made it criminal. He continued:- " … I would expect it to be necessary to prove the further element that the accused person is aware of the difference between a reportable transactions and a non-reportable transaction. … 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 an SCT (a significant cash transaction) and a non-reportable cash transaction." 12 These remarks were made during the course of His Honour's deliberations on sub-paragraph (a) and were made subject to his consideration of sub-paragraph (b). However there was nothing in that later consideration to qualify the contents of the passages I have quoted. 13 In substantial measure, His Honour's views were influenced by what he saw as the rationale in sub-section 31(1) and the importance to that rationale of conscious wrongdoing on the part of an offender. With respect, it seems to me firstly that, on its proper construction, sub-paragraph (b) adequately accommodates these matters and, secondly, even if it does not, there is no justification for importing into sub-paragraph (a) the additional element which found favour with His Honour. 14 That element, properly analysed, is knowledge of the law as it is to be found in some portions of the statute. Yet as His Honour recognised in another portion of his reasons:- "It is not usually necessary to prove that a person is aware of the illegality of an act before an offence is committed. It usually suffices to prove knowledge of the circumstances which render the relevant event criminal, as distinct from proof of knowledge of the illegality of the act: He Kaw Teh at CLR 572 Brennan J, Leask at CLR 598 … Dawson J." 15 In He Kaw Teh v R (1984-5) 157 CLR 523, the appellant had been charged under Section 233B(1) of the Customs Act which provides, inter alia, that "any person who imports into Australia any prohibited imports to which this section applies shall be guilty of an offence". By Section 233B(2) the prohibited imports to which the section applies are prohibited imports that are narcotic goods. There was no suggestion that the appellant had to know what items were prohibited imports or that these included narcotics. For present purposes, what he had to know was that the goods he did import were narcotics - see per Gibbs CJ (with whose reasons Mason J agreed) at p 537, Brennan J at pp 568-572 and 584. Adapting the words of Brennan CJ which I have quoted above, what the appellant in that case had to know were, "the facts which gave the transactions the character of (prohibited imports)". 16 The expression "non-reportable cash transaction" clearly includes a deposit into a bank account of cash in an amount of less than $10,000. So far as is relevant here, the operation of paragraph (a) is no different than if it had read, "The person is a party to 2 or more cash deposits, each of not less than $10,000, into a bank" and had that formulation been used, it would be impossible to contend that the knowledge of which Doyle J spoke would be required. The fact that the Act chooses to impose its prohibition on such transactions by reference to the expression "non-reportable cash transactions" and definitions which serve to bring transactions of the nature indicated within the expression "non-reportable cash transactions" does not in my view justify the importation of the further element to which Doyle CJ referred. 17 I turn to paragraph (b). It addresses three matters. One is purpose. In that the paragraph directs attention to the purpose of the person who conducted the transactions referred to, it seems to me that the paragraph requires that consideration be paid to the state of mind of any person accused. The requirement that regard be had to explanation made by that person reinforces this view and leads me to the conclusion that a tribunal faced with the determination of a charge under the section is required to consider whether the particular accused had the sole or dominant purpose referred to. With respect, that requirement makes it difficult to accept that the mental state of an alleged offender is of the limited relevance to which Brennan J referred in Leask (at 592). I would understand Dawson J (at 596-8) and Toohey J (at 611) and by their agreement (at 616-7) Gaudron, McHugh JJ to hold the view I have expressed in this paragraph. 18 In determining what purpose it is of which the provision speaks one is again entitled, indeed required, to substitute for the defined expression used, its defined meaning. (There is nothing to suggest a contrary intention appears in s 31(1).) Thus, so far as is presently relevant, the purpose referred to is "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 cash transaction involving the transfer of currency of not less than $10,000 in value". This, it seems to me is the extent of the purpose which the Crown must show for the "purpose" element of sub-section 31(1) to be established. 19 Putting this in the context of the balance of the sub-section, a person who is a party to two or more cash transactions with, e.g. a bank, being transactions involving less than $10,000, and the manner and form of those transactions and any explanation given makes it reasonable to conclude that the person conducted the transactions the way he or she did for the sole or dominant purpose of ensuring or attempting to ensure that the currency involved in them was transferred in amounts of less than $10,000 is guilty of an offence. 20 No more than there was in the case of paragraph (a) does there seem to me to be any occasion to regard knowledge of the law, even limited to knowledge of the concepts used in the Act, by an accused as something required to be proved in the course of the determination of a charge under the sub-section. There is nothing in the terms of the sub-section requiring that a person know what a "significant cash transaction" is. 21 However in R v Dinh Hue Tran (at p 25) Doyle CJ said:- "Like Dawson J in Leask, I have come to the conclusion that sub-para (b) imposes a requirement to prove; · that the accused person knew that a transaction involving the transfer of currency of $10,000 or more in value must be reported to a government agency and that a transaction involving the transfer of currency of less than $10,000 in value need not be reported to a government agency; · that it is reasonable to conclude that the accused person in fact had the sole or dominant purpose referred to in sub-para (b). Approaching sub-para (b) in the fashion accommodates the requirement to prove an awareness of the difference between a SCT and a non-reportable cash transaction, and the presence of sub-para (b), by treating sub-para (b) as dealing with proof of an actual or subjective intention rather than an objective quality of the transactions (sic). Although I have separated the elements of knowledge and purpose, it seems to me that an element of knowledge is necessarily implicit in proof of the identified purpose. The purpose that has to be proved need not be proved beyond reasonable doubt. The question for the jury is simply whether it is reasonable to conclude that, in fact, the accused person had the identified sole or dominant purpose. On the other hand, the jury must find it reasonable to conclude that the accused person in fact had the identified purpose." 22 With respect, it does not seem to me that Dawson J went as far as the passage attributed to him. It seems to me that all His Honour said in this regard was :- "The Commonwealth submitted that s31(1) does not create an offence of absolute or strict liability. It pointed to the fact that the circumstances to which regard must be had in reaching the required conclusion include "any explanation made by the person as to the manner or form in which the transactions were conducted" (s31(1)(b)(ii)). Moreover, the Commonwealth submitted, the required conclusion is that the person concerned conducted the transactions for a specified purpose, namely, the sole or dominant purpose of ensuring that the transactions would not give rise to a significant cash transaction or would give rise to exempt cash transactions. Upon this basis the Commonwealth argument was that the sub-section requires proof that the person charged with an offence knew of the nature of a significant cash transaction or of exempt cash transactions and intended by structuring his or her transactions in the manner or form alleged to ensure that they would not give rise to a significant cash transaction or exempt cash transactions. The only effect of the words "it would be reasonable to conclude" is, the Commonwealth contended, to lower the standard of proof from that of beyond reasonable doubt to that of a reasonable conclusion. There is no doubt that the wording of s31(1) leaves it far from clear whether intention, or mens rea (65), is an ingredient of the offence which it creates and, if so, the nature of the intention required. In that situation, it is my view that the Commonwealth submission should be accepted." 23 It is not clear whether this acceptance of the Commonwealth submission extended to all of the submissions referred to or only that the effect of the words "it would be reasonable to conclude" was to lower the standard of proof. Furthermore, it is a long step from acceptance of the proposition that "the sub-section requires proof that the person charged with an offence knew of the nature of a significant cash transaction" to a conclusion that the person knew when reporting of transactions was required. A little after the passage I have quoted, Dawson J said that "mens rea does not require knowledge of the illegality of the act". 24 But be that as it may, what Dawson J said was concurred in by only one other judge and, in my view, the effect of the provision in the circumstances of this case is as I have stated it in paragraphs 17 and 18 above. 25 A second topic which paragraph (b) addresses is the standard of proof by which the question of whether an accused had the purpose specified is to be judged. 26 Traditionally the criminal law, even those parts of it which are contained in legislation, requires that any relevant purpose or state of mind be proved beyond reasonable doubt. However, Section 31(1)(b) poses the question whether "it would be reasonable to conclude…" In Leask v The Commonwealth (at 597), Dawson J, with whose reasons on this topic McHugh J agreed, said that the effect of the words is to lower the standard of proof from that of beyond reasonable doubt to that of a reasonable conclusion. At p 611 Toohey J (with whose reasons on this topic Gaudron J agreed) made remarks to similar effect. Brennan CJ (at 592) took a different view and Gummow and Kirby JJ did not commit themselves. 27 In R v Dinh Hue Tran (at 26-7) the Supreme Court of South Australia reached a similar conclusion to that proposed by Dawson J. I share that view. 28 Paragraph (b) also says something concerning the matters to which attention is to be paid in the determination of whether the purpose exists. Sub-section 31(1) is curiously expressed. In its terms, the formulation:- "A person commits an offence against this section if: (a)…, 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) … 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 …" seems to me to indicate that the judgment on whether "it would be reasonable to conclude" is to be made by reference to only the matters specified. This view is reinforced by the fact that the draftsman has specifically provided that the matters listed as (A) to (E) are not to limit the generality of the reference "the manner and form in which the transfers were conducted" but there is nothing to indicate that that manner and form and any explanation relating to it were not to limit the matters from which the purpose of the person conducting the transfers could be inferred. 29 Also tending to reinforce that view is the fact that the matters specifically referred to in sub-paragraphs (i) and (ii) are so obviously relevant that, absent some restriction on the matters to which regard might be had in the drawing of any conclusion as to the purpose of any person charged with an offence under the section, consideration would be had to them by a tribunal charged with the task of drawing that conclusion. Thus it is difficult to regard the mention of these matters as directed either to widening the field of those to which consideration should be given or ensuring that such matters were not overlooked. 30 If the view be taken that the matters referred to in sub-paragraphs (i) and (ii) of paragraph (b) are a non-exhaustive statement of the matters to which regard may be had and any other matter relevant to the issue of purpose can be taken into account, the specification of those matters is entirely otiose and so much waste paper. If it had been intended simply to provide that any person who participated in two or more non-reportable transfers of currency with "the sole or dominant purpose of ensuring, or attempting to ensure, that no significant cash transaction or exempt cash transaction would occur, (or no report in relation to the currency involved in the transfers would be made)" it would have been easy to say so and, if desired, to stipulate that the existence of the purpose was to be determined on the balance of probabilities or whatever other standard of proof was required. Instead a far more detailed and apparently restrictive form of words has been used. 31 Furthermore, in its use of the phrase "it would be reasonable to conclude" Parliament has chosen a criteria of guilt different from those traditionally used in the criminal law, "beyond reasonable doubt" and, less commonly, "on the balance of probabilities". Should one not proceed on the basis that what has been said is definitive? 32 By s 15AA of the Acts Interpretation Act 1901 (Cth), the courts are constrained to prefer a construction of the Cash Transaction Reports Act 1988 (Cth) which will promote the purpose or object underlying the Act. Clearly one of the objects of the Act is to have transactions involving significant amounts of cash reported. But another may be to have guilt determined more simply - by a test lower than usual but in light of a limited range of circumstances. 33 On the other hand, there are difficulties in concluding that the matters stated are exhaustive. The sub-section does not say in terms that regard may be had to only the matters referred to in it. What if an explanation given was false and could be proved to be? Would a tribunal be precluded from considering evidence to that effect? And would that evidence, if admitted, on the issue of falsity of the explanation be available for all purposes, or would the tribunal be required to make its judgment by reference to only the evidence of the manner and form in which the transactions were conducted and a (rejected) explanation? 34 Before I proceed further in respect of this question, it is appropriate to direct attention to the course of the trial and the grounds of appeal. At trial the Crown undertook the obligation of proving, and the matter was put to the jury on the basis that, in respect of each charge, the Crown had to establish three matters:- (i) that the accused was a party to two or more non-reportable cash transactions; (ii) that the accused knew that the bank had an obligation to report significant cash transactions involving the transfer of $10,000 or more; and (iii) that having regard to the manner and form in which the transactions were conducted it would be reasonable to conclude that the accused conducted the transactions in that manner or form for the sole or dominant purpose of ensuring or attempting to ensure that the cash involved in the transactions was transferred in a manner and form that would not give rise to a significant cash transaction. 35 The first element was not in dispute, the Appellant making a number of admissions. As to the second, the jury were directed that they could take into account "not only the transactions that are the subject of the charge … but also the transactions that are the subject of all the other charges". As to the third, the jury was initially instructed that:- "in considering this element you can have regard to the two of more non-reportable cash transactions that are the subject of the particular charge you are considering. You cannot have regard for the purposes of this element to any of the other transactions which are the subject of any of the other charges" 36 However later in his summing up the trial judge said:- "The Crown contends in respect of the third element of each charge that if you are satisfied beyond reasonable doubt of the second element, that is that the accused knew of the bank's obligation to report cash transactions of $10,000 or more, when you have regard to the manner and form of the transactions which are the subject of the particular charge you are considering, you will be satisfied beyond reasonable doubt that it would be reasonable to conclude that the accused carried out the transactions in that way for the sole or dominant purpose of avoiding making a significant cash transactions… Mr Byrne (counsel for the Appellant) contends that if you were satisfied beyond reasonable doubt that the accused knew of the bank's obligations to report, that is, that you are satisfied the Crown had proved the second element of the charge, you would nevertheless still have a reasonable doubt about the third element, based on the accused's explanation that he carried out the transactions in the way he did for reasons of security and because the accused had no logical reason to avoid the banks' reporting obligation… The Crown on the other hand contends that if you were satisfied beyond reasonable doubt that he had knowledge of the bank's reporting obligation then you will have no difficulty once you consider the way the accused carried out the transactions which are the subject of each charge, that the third element has been established beyond reasonable doubt." 37 It may be that the Crown sought only to prove the second of their matters as an aid to proof of the third but for present purposes, this is immaterial. The necessity for the Crown to prove the second matter seems to have been at least conceded by counsel for the Appellant, if indeed, it was contended for by him. 38 Three grounds of appeal were argued before this Court:- (1) His Honour the learned trial judge erred in permitting evidence on one count to be used as evidence in the other counts. (2) His Honour the learned trial judge erred in not directing the jury at the conclusion of the Crown case to find the Applicant not guilty on all counts on the indictment. (3) His Honour the learned trial judge erred in his direction to the jury regarding the approach they should take if they were to find that some other conclusion apart from that specified in the legislation establishing the offences, was reasonably open on the evidence. It was also submitted that His Honour erred in leaving it open to the jury to decide whether the third element existed on an objective basis rather than considering the sole or dominant purpose of the Appellant himself. A fourth ground of appeal, that the recording of a conviction and the decision to impose a financial penalty was excessive, was not pursued. Ground 1 39 At the trial the objection to the use of the evidence of transactions the subject of one count on other counts seems largely, and perhaps exclusively, to have been based on the terms of ss 97, 98 and particularly s101(2) of the Evidence Act which provides:- "101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 40 However in this Court, the point was taken that, in respect of any charge, the terms of s 31(1) limited the material to which regard in could be had to that relating to the transactions the subject of that charge. Given that during the trial there was objection to the use of the evidence, rule 4 of the Criminal Appeal Rules does not preclude the Appellant relying on the argument. The Crown did not suggest any other reason why the Appellant could take the point and the Court must determine it. 41 It will be apparent from what I have said above that I regard the second of the matters which the jury were asked to consider as not an essential element in proof of the commission of an offence under s 31(1) although obviously, if a tribunal faced with deciding whether an offence under s 31(1) has been committed, comes to a conclusion that an accused was aware of that matter or of the provisions of the Act imposing the obligation, and is entitled to have regard to those facts, the Crown's chances of satisfying that tribunal of the existence of purpose referred to in paragraph (b) are increased. 42 I have set out above the factors which seem to me to argue for and against the proposition that it is only matters falling within sub-paragraphs (i) and (ii) of paragraph (b) to which regard may be had. Although not with any great confidence, the conclusion at which I have arrived is that on balance these factors lead to the conclusion that the matters set forth in the sub-paragraphs should be regarded as, with one possible exception, definitive. That way, some operation is given to the terms of those sub-paragraphs. (The exception to which I refer is evidence that any explanation offered is false. It is difficult to believe that such evidence is excluded but I do not need to decide this issue. I acknowledge that the recognition of any exception provides grounds for thinking that the conclusion at which I have arrived is wrong but the factors which support it seem to me the more weighty.) 43 The extracts I have set out above from the summing up to the jury indicate that, although not directly, the jury had been invited to take into account indirectly on any charge the evidence of transactions not the subject of that charge. This should not have occurred and, subject to the proviso to Section 6 of the Criminal Appeal Act, the appeal should be allowed. 44 Before turning to the topic of the proviso, it may be convenient to record my views on some of the other matters which were argued. 45 It was submitted that in relation to any individual count, the evidence on the other counts was either "tendency evidence" within Section 97 of the Evidence Act or "coincidence evidence" within Section 98 and that the terms of Section 101(2) precluded its use. 46 So far as is relevant Sections 95, 97, 98 and 101 provide:- "95(1) Evidence that under this Part is not admissible to prove a particular matter must not be used to prove that matter even if it is relevant for another purpose. (2) Evidence that under this Part cannot be used against a party to prove a particular matter must not be used against the party to prove that matter even if it is relevant for another purpose. 97(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, has significant probative value. 98(1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. 101(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." There was no issue before this Court arising out of the terms of paragraphs (a) or (b) of Sections 97 and 98. 47 It is apparent from the terms of Section 95 that evidence, the effect of which is to show a tendency or coincidence, is not inadmissible merely because it fails to comply with the requirements of Sections 97, 98 and 101(2). It merely may not be used in proof of the particular matters to which Sections 97 and 98 refer. In this case the evidence of the totality of the Appellant's actions may most accurately be described as evidence which showed he had a particular state of mind rather than as evidence which showed he had a tendency to have a particular state of mind and I would not regard it as tendency evidence at all. 48 On the other hand the evidence of the totality of the transactions did constitute coincidence evidence. Its relevance was that because of the improbability of over 100 transactions just under $10,000 occurring coincidentally the Appellant had a particular state of mind. That state of mind extended at least to a recognition of some importance in keeping deposits of cash under about $10,000. 49 Thus it was necessary that the requirements of Section 101(2) be satisfied. The trail judge took the view that they were and, observing that the test set forth in Section 101(2) was the same test as that enunciated in Pfennig v R (1995) 182 CLR 461 - citing R v AH (unreported, CCA, 27 November 1997) in support of that proposition - went on to record that he was satisfied that there was no rational view of the evidence other than that the Appellant knew of the bank's obligation to report cash transactions of $10,000 or more. 50 If that is the test I am unable to agree. I accept that the fact that banks had an obligation to report deposits of not less than $10,000 makes available the further inference that the Appellant knew of the obligation to report and structured his deposits accordingly but I do not see that as the only rational one. Other inferences open seem to me to include that the Appellant might have thought all, or all large transactions were monitored (without any report by a bank); he may have thought additional documentation was required of him. 51 I accept that there is a deal of authority that the test posed by s 101(2) is as stated by the trail judge. In Pfennig v R (1994-5) 182 CLR at 461 at 481 et seq. Mason CJ and Deane and Dawson JJ referred to the fact that in Hoch v R (1988) 165 CLR 292 at 294 it had been stated that the basis for the admissibility of similar fact evidence lay in its possessing a particular probative value or cogency such that, if accepted, it bore no reasonable explanation other than the inculpation of the Appellant in the offence charged and that those principles correctly stated the law with respect to the admissibility of similar fact evidence. A little later these judges said that the statement that propensity evidence would be admissible only if its probative value exceeds its prejudicial effect was of little assistance unless it was understood that such evidence is circumstantial and as such was admissible only if there was no reasonable view of it consistent with innocence. Having regard to the totality of their Honours' discussion at pages 481-485 I would understand them to be saying the same approach applied to similar fact evidence also. 52 In Lock (1977) A Crim R 356 at 361 Hunt CJ at CL said that the test posed by s 101(2) was the exercise discussed in Pfennig and "it was said in that case that … the trial judge must apply the same test as the jury does in dealing with circumstantial evidence and ask whether there is available a rational (or reasonable) view of the similar fact evidence which is consistent with the innocence of the accused; it is only if there is no such view available that a conclusion can safely be reached that the probative force of the evidence outweighs its prejudicial effect." Without discussing the matter, this Court in Foley v R (unreported, CCA, 5 June 1997) accepted this test. It was also accepted by this Court in R v AH. 53 However, it is the text, and not a gloss on the text, of an Act of Parliament to which regard must primarily be had - Kavanagh v The Commonwealth (1959-60) 103 CLR 547 at 578, Ogden Industries Pty Ltd v Lucas (1970 ) AC 113 at 127. Consistently with that proposition it does not seem to me that there should be substituted for the test set out in the clear words of s 101(2) of the Evidence Act, a test expressed quite differently. Pfennig v R was not a decision under the Evidence Act. It was handed down on 17 February 1995, after the Evidence Act (1995) (Cth) had passed through both Houses of the Federal Parliament although it must be recognised that the decision did precede the Evidence Act (NSW), the Bill for which was introduced into Parliament on 24 May 1995, passed on 30 May, and received the Royal Assent on 19 June 1995. However, so far as is presently relevant, both Acts are in the same terms. It may be noted that the ALRC Report 26 into Evidence (volume 2, page 226, text and note 76) describes the approach subsequently adopted in Pfennig as "extreme" although it is also appropriate to record that s 101(2) lays down a test different from those suggested in either ALRC 26 or the later report of the same topic, ALRC 38. 54 There is one further matter I would add though, given the extent of discussion of the admissibility of tendency and coincidence evidence in Pfennig and in the numerous authorities referred to in that case, I do so with great hesitation. The principal that a conviction on circumstantial evidence is only warranted if that evidence permits of no rational explanation consistent with innocence - see e.g Chamberlain v R (No 2) (1984) 153 CLR 521 at 536, 570, 599 - is but a particular application of the rule that guilt must be proved beyond reasonable doubt - Knight v R (1992) 175 CLR 495 at 502. There is something strange in applying it universally to the admissibility of one type of evidence unless, in the circumstances of a particular case, that evidence is essential to conviction - c.f. Chamberlain v R (No 2) 537, 599, 626. 55 Unconstrained by the above authorities I would incline to the view that there is nothing in the Evidence Act which precluded the evidence on all counts being used in proof of the Appellant's state of knowledge at the time of his commission of the acts relevant to one count. Fortunately I am able to base my decision on other matters. 56 Before I leave this part of my Reasons, there is one further matter arising on the terms of s 31(1) to which I should advert. The question in paragraph (b) is whether it would be reasonable to conclude that the person conducted "the transactions" in the manner and form they took for the purpose specified. It would seem to me that "the transactions" are those referred to in paragraph (a), that is all of them. However it is appropriate to record that whether this is the correct approach to the interpretation of the sub-section was not argued, nor was it suggested that of the transactions referred to in a count, some might have been conducted with the purpose referred to in the sub-section and some not. Ground 2 57 The application for a verdict by direction was stated to be based on the proposition that there was no evidence of knowledge by the Appellant of the terms of the legislation and "in particular, that he knew that by depositing cash amounts of less than $10,000 he would avoid the requirements of the Cash Transactions Reporting Act". 58 Given my view that, despite the Crown's concession at the trial, the Crown carried no obligation to establish such knowledge, any failure to do so did not entitle the Appellant to the direction he sought. This ground fails.