New South Wales Court of Criminal Appeal CITATION : Regina v Matsumura [2003] NSWCCA 170 HEARING DATE(S) : 23/06/03 JUDGMENT DATE : 23 June 2003 JUDGMENT OF : Ipp JA at 1; Buddin J at 32; Shaw J at 34 DECISION : Appeal dismissed. CATCHWORDS : CRIMINAL LAW - Transferring foreign currency - Financial Transactions Reports Act 1988 - Trial judge exercised discretion to not enter conviction - Appeal dismissed. Crimes Act 1914, s 19B(1) LEGISLATION CITED : Financial Transactions Reports Act 1988, s 15(1)(a)(ii) Justices Act 1902, s 51A Regina (Cth) PARTIES : v Eiji Matsumura FILE NUMBER(S) : CCA 60130/03 COUNSEL : Crown (Cth): T Muir Respondent: C Gee QC SOLICITORS : Crown: Commonwealth Director of Public Prosecutions Respondent: Watsons LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0150 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60130/03 IPP JA BUDDIN J SHAW J Monday, 23 June 2003 REGINA v EIJI MATSUMURA Judgment 1 IPP JA: This is an unusual case. The circumstances of the offence are unusual, the respondent is an unusual person, and the order made by the trial judge is unusual. 2 The respondent pleaded guilty under s 51A of the Justices Act 1902 to one offence under s 15(1)(a)(ii) of the Financial Transactions Reports Act 1988. The offence was admittedly committed when, on 6 January 2003, the respondent entered Australia carrying not less than $AUD10,000, without making an appropriate report in respect of that money as required by the Financial Transactions Reports Act. At the time, the respondent had with him $AUD835, EU274,173.25, $US12,670.29, 144,778 Japanese Yen, and ten Thai bhat. The value in Australian dollars of this entire sum was $520,195.90. The maximum penalty for the offence was two years imprisonment and a fine of $13,200. 3 The respondent had flown into Australia on a passenger aircraft and had falsely indicated on the incoming passenger card completed by him that he did not have currency with him in excess of $AUD10,000. The respondent had been given the standard passenger card to complete. This was a relatively small card on which there were eleven questions which passengers are required to answer by ticking boxes next to the questions concerned. The boxes formed two columns. The left hand column of boxes was designated "Yes" and the right hand was designated "No". Incoming passengers were required to tick the appropriate box, thereby answering "yes" or "no" to the question concerned. 4 Question 5 read: "$AUD10,000 or more in Australian or foreign currency equivalent?" The respondent placed a tick in the "No" column; in fact he ticked every box in the "No" column on the card. 5 The offence is one of strict liability and the respondent pleaded guilty. 6 The offence was detected in a way that is not without relevance. As the respondent was passing through customs, he was asked whether he had a sharp object in his possession. He replied in the affirmative, and explained that he had a Swiss Army knife in a suitcase that had been in the hold of the aircraft, that is, not in the cabin. 7 He was asked to show the customs officer the knife. He opened his suitcase to do so and the customs officer noticed a bag lying openly in the suitcase. The officer asked for the bag to be opened and in it he found a number of wallets. The money, the subject of the offence, was in the wallets. 8 The respondent made a statement to the customs officer. He said that he had acquired the money by gambling. He also said that, as he was filling in the incoming passenger's card, he did not read the questions properly. He thought that nothing he was doing would offend against the laws of Australia. So, without reading the questions, he simply ticked every box in the "No" column. 9 The trial judge gave a detailed judgment after the respondent had given evidence and was cross-examined. His Honour went out of his way to make it quite plain that he believed everything the respondent said in evidence, and regarded him as a thoroughly trustworthy person. The judge said that he was completely convinced that in the respondent's answers to customs officers and police at the airport, and in the Court, both orally and by adoption of his statement, the respondent at all times had been seeking to tell the truth and in fact had told the truth. 10 His Honour said that he was convinced that, had the respondent had his attention drawn to his mistake, he would have immediately sought to correct it. His Honour said that he was extremely sceptical, generally speaking, of claims that large amounts of money had been acquired by gambling, but stated, by reference to the evidence, that the respondent' account of the origin of the money he brought into Australia was true, and there was no criminal or other improper origin of those funds. 11 The trial judge pointed out that the respondent had no previous convictions and said: "I explicitly accept and find that he is, apart from this offence, of the highest good character." 12 The respondent is a man 28 years of age and is a well-educated person. He has a law degree from a Japanese university and has hopes of studying in the United States of America to obtain a degree at the Harvard Business School or the Columbia Business School. He produced a testimonial from his law professor that was in the most laudatory terms as to his intellectual ability, dedication to his studies, his character and his family. 13 His Honour pointed out that a criminal conviction would jeopardise the respondent's prospects and would cause him great problems in his employment in the United States and Japan. 14 His Honour recognised that the amount involved was significant by any standards. He said that he recognised that the offence was not a trivial one. Nevertheless, he considered that he should exercise his powers under section 19B(1) of the Crimes Act 1914 (Cth) and not enter a conviction, and dismiss the charge; and this is what he did. 15 His Honour pointed out that the circumstances of the case and the jeopardy in which the respondent had been placed would have to be regarded as a very severe warning and reminder to all travellers of the drastic consequence of making incorrect entries on passenger cards when entering or leaving Australia. 16 The appellant now appeals against his Honour's disposition of the case. 17 The trial judge's approach was unusual as the amount of money that the respondent brought into Australia and did not disclose was extraordinarily high. I have to say that when I first read his Honour's judgment and the outline of submissions by the appellant, I considered that there were strong grounds for an appeal. On reading the material, however, on which his Honour relied, I am persuaded that the decision he made was within his discretion. 18 I shall first deal with the finding that the money constitutes the proceeds of gambling. The excuse that moneys have been obtained by gambling is an excuse that is often heard in the criminal courts and is very often found to be untrue. But in this case there is ample evidence of its veracity. 19 The respondent has an unusual job, he is an employee of a Japanese company known as Honda Geinou, which specialises in providing security services. This is not a small, fly-by-night enterprise. According to the papers before the Court it has a capital of 10 million Yen and yearly sales of one billion one hundred million Yen. 20 One of the clients of Honda Geinou is a woman in her fifties, who was a famous singer in Japan in her youth, and who is the mother of a famous Japanese pop star. This particular woman is also Vice-President of a substantial company. She is not a well person, weighs only 36 kilograms, is often nauseous and requires constant attention. She appears to travel a great deal, and be interested in gambling. 21 The respondent, as part of his duties for Honda Geinou, has been designated to be this woman's travelling companion. In this capacity he earns a very substantial salary. He had, prior to the commission of the offence, been occupied in this employment for more than a year. He obviously enjoys the complete trust of his client and is given free rein to administer her affairs while travelling, and even has access to her bank account and her use her credit cards to pay her accounts. 22 While accompanying his client to her various destinations in the various parts of the world where she gambles, the respondent, with his client's permission and encouragement, gambles as well. He enjoys startling success in his gambling. He has produced a number of vouchers from casinos all over the world, which testify to his frequent attendance in the "high rollers" rooms at these venues. He has also produced vouchers, which indicates that he, very frequently, has won the jackpot at a number of casinos, sometimes on occasions within a couple of days of each other. 23 The evidence reveals that the respondent has gambled on an almost continuous basis at various international venues, often for several days at a time. He explained to the trial court what his methods were in gambling, He described the unease he has often encountered amongst croupiers when, after a few days gambling at a particular venue, he enters the gambling area again. He described the iron discipline that he applies in gambling. All in all, it was an entirely convincing performance in explaining how he came to be in position of such a large sum of money in cash. 24 The respondent appeared not to know how much money he had with him, and it was only after the customs officers had done the accounting that the correct amount was determined. His conduct in putting the money in a suitcase in the hold also demonstrated his lack of concern. The same applies to his spontaneous advice to the customs officer about the knife in his suitcase. All these matters testify to his innocence in regard to the acquisition and use of this money. 25 His Honour, in my opinion, was justified in finding that the money in the respondent's possession was honestly acquired and was not intended for any criminal purpose. 26 In describing how he came to tick the wrong box, the respondent explained that he and his client had been in Holland for some time where they had both gambled. The night before they left she retired at midnight; he then spent some three hours sorting out her affairs and paying her accounts, so that they could leave with everything up to date. He completed this by 3 am. He was nervous about going to sleep at that stage because of the danger of oversleeping, and he was not prepared to rely on the wake-up call from the hotel. So, he stayed awake until 7 am, when he arranged for his client to wake up and attended to the arrangements necessary for her to be taken to the airport with him. He was by then considerably fatigued. On the journey to Sydney his client was often ill, she had to go to the bathroom every hour, and whenever she woke up, he was awake and attending to her. He had to remain awake throughout the flight. 27 On approaching Sydney, the respondent was then given the passenger card, which he signed in the manner that I described. He said that he inadvertently ticked the wrong box, and the trial judge believed him. No challenge was made to this finding. The appeal has to be dealt with on the basis that this finding is correct. 28 I understand the concern of the Crown and customs officers if persons who commit the offence in the way and under the circumstances applicable to the respondent to be concerned, are – as a matter of course discharged without a conviction being entered. I would emphasise that, for this to occur, there would have to be extraordinary circumstances. I agree with the submission made by counsel who appeared for the Crown that it is important for the proper running and security of this country that the questions asked in the passenger cards should be answered accurately and honestly. Ordinarily, I think that any person who brings in such a large some of money, without ticking the correct box or otherwise making an appropriate report, would face a severe penalty. 29 Although I consider, as I have said, that the disposition of the case by the trial judge was correct, it should not readily stand as a precedent. It is only because of the highly unusual circumstances in this case that that it fell within his Honour's discretion to discharge the respondent. 30 In my opinion, having regard to the considerations in s 19B(1)(b)(i) and (iii) of the Crimes Act, his Honour was entitled to dispose of the matter as he did. In those circumstances, I would dismiss the appeal. 31 BUDDIN J: Ordinarily an offence of the type which is the subject of this appeal, would result in a conviction being entered and an appropriate penalty being imposed. This is however a quite exceptional case. As the presiding judge has observed, the unusual circumstances both of the offender and of the offence itself left it open to the sentencing judge to take the exceptional course which his Honour took. That being so, I would not be disposed to conclude that the Crown had made out a case for this Court's intervention particularly given the nature of the jurisdiction which it seeks to invoke. 32 I agree with the orders proposed by Ipp JA and with his Honour's reasons for so concluding. 33 SHAW J: Dodd DCJ, by his judgment of 21 March 2003, has made a number of findings of fact which are not challenged by the appellant in these proceedings. His Honour then proceeded to exercise a discretion in dealing with the respondent. 34 I do not think that there are any real or substantial grounds for interfering in that discretion. I think it has been properly exercised in the reasons for judgment. Accordingly, I agree with the judgment of Ipp JA. 35 IPP JA: The order of the Court will be that the appeal is dismissed. ********** Last Modified: 07/10/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.