Kessing v R [2008] NSWCCA 310 | Case summary

Kessing v R [2008] NSWCCA 310 | Case summary | Zoe

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Friday 19 December 2008 Allan Robert Kessing v R Judgment 1 BELL JA: On 27 March 2007 the appellant was convicted in the District Court following a trial before Bennett DCJ and a jury on an indictment that charged him with communicating the contents of a document which had come into his possession when he was a Commonwealth officer and which it was his duty not to disclose. The offence is provided in s 70(2) of the Crimes Act 1914 (Cth). The maximum penalty for the offence is imprisonment for two years. On 22 June 2007 his Honour entered a conviction upon the jury's verdict and sentenced the appellant to imprisonment for nine months, to be released forthwith on a recognizance under s 20(1)(b) of the Crimes Act that he be of good behaviour for nine months. 2 The appellant appeals against his conviction. 3 The offence was particularised as that between 10 and 31 May 2005 the appellant having been an officer of the Australian Customs Service (the ACS) communicated to Martin Chulov and Jonathan Porter the contents of documents, the "Threat Assessment of Airport Security Screening Personnel Sydney Kingsford Smith Airport" (the Threat Assessment report) and "Sydney Airport - Air Border Security - Risk Analysis 2003" (also known as "Tarmac Report 2003") (the Risk Analysis Report), which had come into his possession as a Commonwealth officer. 4 The appellant had been a member of an intelligence unit with the ACS, which was located at the Sydney Kingsford Smith Airport, the Air Border Security Team (the ABS Team). The Threat Assessment report contained a security assessment of an organisation that had been contracted to provide security services at the airport. The Risk Analysis report replicated the text and contents of the Threat Assessment report in the section dealing with the security organisation and contained security assessments of a wide range of persons working at the airport. Both reports were written by Caterina Magni, the leader of the ABS Team. The ABS Team office was located in a secure area within the airport and Ms Magni and the other six members of the ABS Team including the appellant worked in it. Ms Magni provided electronic copies of parts of the report to other team members for their comment. The appellant received copies of parts of the two reports by email. Hardcopies of both reports were kept in a locked security cabinet in the ABS Team room and members of the ABS Team had access to them. 5 On 10 May 2005 the appellant resigned from the ACS. 6 On 31 May 2005 two articles were published in The Australian newspaper under the by-line "Martin Chulov" and "Jonathan Porter". Each article included material paraphrasing the reports and, in some instances, direct quotations from the reports. Since the Risk Analysis report reproduced the Threat Assessment report the quotations and other material may have been drawn from the Risk Analysis report alone. 7 The ACS and the Australian Federal Police (the AFP) conducted an investigation to determine the source of the "leaked" report/s. All of the persons who had had access to the reports were interviewed in the course of the investigation. 8 On 6 September 2006 the AFP executed search warrants at the appellant's home and at his mother's home at which he stayed from time to time. A copy of the Threat Assessment report was found at his home together with a piece of paper with the name Martin Chulov and a telephone number written on it. A copy of the Risk Analysis report was found at his mother's home together with a business card on which was printed the name Martin Chulov and contact details. 9 Telephone call charge records established that in May 2005 a number of calls had been made from the landline at the appellant's home to telephone numbers subscribed to by News Ltd (the proprietor of The Australian). These included calls to the number allocated to Martin Chulov in the offices of The Australian and to a mobile telephone number allocated to Martin Chulov. At around the same time, telephone calls had been made to telephone numbers subscribed to by News Ltd from the landline at the appellant's mother's home and from a public telephone located about 70m from her home. 10 On 10 May 2005 the appellant signed documents including an "Official Secrets" form in which he acknowledged his understanding that all official information that he had acquired in the course of his duties for the Commonwealth was not to be published or communicated to any unauthorised person after his service with the Commonwealth. He certified that all information acquired by him in the course of his employment with the Commonwealth had been returned to an appropriate Commonwealth representative. 11 The appellant did not give or call any evidence at the trial.

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15 The Crown Prosecutor said this in opening, (T'cpt 6/3/07 21.54-22.10): So the next element, ladies and gentlemen, is, on the second line you'll see, "did between about 10 May 2005 and 31 May 2005 communicated to Martin Chulov and Jonathan Porter without lawful authority or excuse contents of documents, namely two reports" and then the names of the reports are particularised. What is critical about this particular element, ladies and gentlemen, is that the accused, the Crown says, did communicate two documents, two reports. So the second element that the Crown must prove is the accused did communicate those reports. The Crown says those reports were communicated to two persons that are named there, Martin Chulov and Jonathan Porter, and by way of particularising or identifying the reports the Crown has set out what they are. … So, just to recap, ladies and gentlemen, there are four crucial elements. … Second, the Crown must show that the accused did communicate the contents of the two reports known as "Threat Assessment" and "Risk Analysis" to the persons named in the indictment. (T'cpt 6/3/07 22.47-53) 16 The Crown Prosecutor went on to outline the evidence that he anticipated leading, which included the publication in The Australian of the two articles under the by-line "Martin Chulov Jonathan Porter", the execution of the search warrants and finding of the documents with the name "Martin Chulov" and contact details and the call charge records that revealed contact between telephone services associated with the appellant and telephone services associated with a person named "Martin Chulov". 17 Mr Lowe opened to the jury immediately after the opening address of the Crown Prosecutor, saying: (T'cpt 6/3/07 34.48-55): Now, what is of course in dispute is that my client disputes that he communicated the contents of the document, that is, either of the two documents referred to by the Crown, to Martin Chulov or Jonathan Porter , who were journalists from The Australian . Someone else, perhaps, from Customs, but not necessarily so, must have leaked that report or communicated the contents of that report. (Emphasis added.)

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20 In the course of the Crown Prosecutor's closing address the jury asked a question (MFI 31) in these terms: Is proof (beyond a reasonable doubt) needed that the defendant communicated the contents of the documents to both Martin Chulov and Jonathan Porter? 21 The trial judge stated that he proposed responding to the question saying, "the Crown will have succeeded if it has persuaded you beyond reasonable doubt that the contents of the documents were communicated directly or indirectly to one of or both of these two reporters". (T'cpt 21/3/07 22.24-28) Mr Lowe maintained the submission that he had earlier made that it was incumbent on the Crown to prove communication to both. 22 The Judge directed the jury in answer to their question (T'cpt 21/3/07 25.13-19): This is something that I will need to direct you upon in the course of my summing-up to you, but in response to your specific question I can say this. The Crown will have succeeded in respect of the second element to the charge if it does satisfy you beyond reasonable doubt that the contents of the documents were communicated to either or both of Mr Chulov and Jonathan Porter. 23 Mr Lowe put the appellant's case in this way in his closing address (T'cpt 22/3/07 26.41-27.19): So if there are other reasonable or rational hypotheses consistent with innocence, if you sit down in your deliberations and you think that there are rational or reasonable inferences such as there might have been a discussion by my client with somebody from "The Australian", not about the contents of the report, or that somebody else might have had access to the report and provided it "The Australian" (sic) because of issues associated with Schapelle Corby or God knows what, for whatever reason, then you would be bound to find my client not guilty because there are other - the Crown hasn't proved its case beyond reasonable doubt. In a circumstantial case the only inference that you would have to draw is one of guilt if you excluded all those other competing hypotheses consistent with innocence. Now the real issue in this case is in fact whether my client is the person who communicated the contents of the report. Now if you are of the view that there was a document that was in the possession of "The Australian" such as a hardcopy report, a copy of that report, the police could have executed a search warrant, they could have, they didn't. They could have made a comparison between the two documents. For instance exhibits A, there's evidence in this case exhibit A had handwritten notations on it. I'm not just saying one page but a number of pages. There are also in relation to exhibit B nicks in pages, creases, dog tagging particular pages and the like and even I think there's a mark that was identified on the front cover of exhibit B. Well we know what was seized from my client's house both at Marrickville and at Mount Victoria. Surely the best evidence in this case would have been to execute - if there was, if "The Australian" did have those reports, execute a search warrant, obtain a copy, make a comparison between what they had and what my client had, wouldn't that be the best evidence you might well think. (Emphasis added.) 24 The elements of the offence which the Crown was required to prove beyond reasonable doubt were: (a) the appellant having been a former Commonwealth officer; (b) intentionally communicated a document/s; (c) which document/s had come into his possession as a Commonwealth officer; and (d) the appellant was under a duty not to disclose the documents.

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29 I turn now to the contention that it was necessary for the Crown to prove that the appellant communicated by direct means the whole of the contents of the two reports. 30 The trial judge directed the jury in the course of his summing up (T'cpt 22/3/07 18-19): I ask you to note the emphasis that I just placed upon the words "contents of". The wording of the charge regarding the matter of which you must be satisfied beyond reasonable doubt in this element is that the accused communicated the contents of the two documents there named. It may be the case that you are satisfied beyond reasonable doubt that the reports were communicated in their entirety, that is to say by the provision of copies of those documents. If you were so satisfied, it would mean that the Crown has succeeded in respect of this particular aspect of the case it presents. However, the Crown does not allege that this is what the accused has done. The Crown alleges that he communicated contents of the two documents, whether or not actual copies of the document were provided. The question you must decide is whether or not you are satisfied beyond reasonable doubt that the accused communicated contents of the documents. In this regard you will note that the second document in time, that is the second report of which exhibit B is a redacted copy, incorporated in its text the content of the first report of which exhibit A is a redacted copy. Thus, the Crown would succeed upon this aspect of the case it presents if you were satisfied beyond reasonable doubt that the accused communicated the content of the reports, whether he did so by communicating the content of one or both of the documents. 31 The indictment charges the appellant with the communication of the contents of the documents. The words of the section refer to, "a person who … publishes or communicates … any fact or document which came to his or her knowledge or into his or her possession … ." Where two or more subjects are qualified by two or more matters the qualifications may attach to the subjects in the order in which they appear: see, generally, DC Pearce and RS Geddes Statutory Interpretation in Australia (Aust: Butterworths, 2006, 6th ed) at 146, [4.34]. If the provision were framed in terms that, "a person who … communicates or publishes … a fact or document which came to his or her knowledge or possession" it may have been open to construe it as creating two ways in which the offence could be committed: (i) communicating a fact in the person's knowledge or (ii) publishing a document in the person's possession. The order of the words "publishes or communicates" does not suggest such a construction. There is no reason to conclude that one cannot "communicate" a document. This seems to have been accepted by Calloway JA in R v Kelly [2006] VSCA 221 at [8]. To "communicate" is to transmit or to impart knowledge or make known (Macquarie Concise Dictionary, 3rd ed.) One may "communicate" a document by communicating the contents of the document. This is how the Crown particularised this case. Generally, to publish connotes to make publicly known, however, in the law of defamation publication applies to making the matter complained of known to any person other than the person defamed. This appeal does not raise the distinction between publishing and communicating for the purposes of the offence created by s 70.

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33 The purpose of the provision is to criminalise the unauthorised intentional disclosure of material that has come into a Commonwealth officer's knowledge or possession by virtue of their office. The appellant's construction of the provision would produce an absurd result in that a person might remove the coversheet from a confidential report and hand the balance of the report to a journalist with impunity since the whole of the report would not have been communicated. As a matter of ordinary English usage one communicates the contents of a document by conveying the substance or purport of the document or some part of it. Questions of degree may arise in determining whether the contents of a document have been communicated to another. In this case the articles in The Australian drew on material portions of the Risk Analysis report. It was not an error not to direct the jury that the Crown was not obliged to prove all the contents of each report had been communicated. 34 Dr Glennon's next challenge was to the direction that it was sufficient that the communication of the contents of the document be by indirect means. The Crown submitted that indirect means were sufficient: Kelly per Callaway JA at [11] and Redlich JA and Coldrey AJA at [23]. The point was not raised in Kelly although it does appear that it was assumed that the communication of a document may be by indirect means. In Kelly the Crown case was that the document had been physically handed over to the journalist. Here the Crown did not confine its case in this respect. It was the Crown case that the articles demonstrated that the author/s had been informed of the contents of the reports (or at least the contents of the Risk Analysis report). 35 The Crown Prosecutor in his closing submissions put it this way (T'cpt 25.54-26.14): The Crown doesn't need to prove to you that the documents themselves were handed over to any particular person. The Crown doesn't have to prove to you that there was communication by some particular means, either verbally or given a copy to a particular person. The Crown doesn't need to prove to you that the communication was directly to either of those journalists. It could have been indirect. For example, a copy might have been sent in to a journalist. A copy might have been left at a location. There could have been communication over the telephone by speaking to one of the persons and reading out some parts of the reports. The Crown doesn't need to prove that. All you need to be satisfied of is that the Crown has proven beyond reasonable doubt that there was in fact communication. What the Crown says is that you can see that there has been because when you look at the newspaper articles and the reports, you can see that the contents of each of those appears in some parts within the newspaper article. 36 Dr Glennon's submissions did not develop the distinction between direct and indirect communication. On one view, acceptance of his submission would mean that the offence would be committed by handing a copy of a document to another, but not by posting it to that other. Communication of the contents of a document requires no more than that the contents be conveyed or transmitted to another. This may be done directly by handing the document to another or by reading the document to another. It may be done indirectly by leaving the document on a park bench for another to collect or in any of a variety of ways. The essential feature of communicating a fact or document for the purposes of s 70 is that the communication is intentional. There was no error in the trial judge directing the jury that communication of the contents of the document may be by indirect means. Grounds 2 and 7 are without merit. The hearsay challenge 37 At the trial Mr Lowe objected to the admission of a copy of The Australian dated 31 May 2005 (exhibit F) on the basis that it was "absolute hearsay". (T'cpt 12/3/07 269.54) Dr Glennon submitted that the trial judge erred in admitting the document over objection. He supported this submission by reference to a number of authorities dealing with the hearsay rule at common law, including Myers v DPP [1965] AC 1001. In Myers the House of Lords declined to create new exceptions to the hearsay rule, observing that such a task must be left to the legislature. Following the decision the Criminal Evidence Act 1965 (UK) was enacted to overcome some of the restrictions of the operation of the rule. 38 The trial judge was correct to admit exhibit F. The newspaper was received in order to prove the words that appeared in the two articles. This was relevant to proof of the Crown case. The newspaper was not received to prove the existence of a fact that the author or authors of the two articles (or of any other of the material) intended to assert by the representation: Evidence Act 1995 (NSW), s 59. 39 The assertion in the written submissions filed on the appellant's behalf that the trial miscarried because the trial judge directed the jury to compare the copy of exhibit F with the copies of the redacted reports, exhibits A and B, is misconceived. A circumstance in the Crown case was that the article contained quotations from the reports and paraphrased parts of the reports (or at least the Risk Analysis report). The invitation to compare the two did not involve an invitation to use the articles for a hearsay purpose. 40 The Crown did seek to have the by-line "Martin Chulov Jonathan Porter" admitted for a hearsay use. The Crown Prosecutor submitted that the by-line was admissible under s 70 of the Evidence Act as evidence of the fact that Martin Chulov and Jonathan Porter were the authors of the articles. Mr Lowe objected to the reception of the by-line as evidence of the fact of authorship. His Honour did not give reasons for the admission of the newspaper, but he appears to have accepted the Crown Prosecutor's submission with respect to the operation of s 70. (T'cpt 13/3/07 341.38-39) 41 Section 70 provides: The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed: (a) in the course of a business, and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object. 42 The Crown submitted that the inclusion of the names, "Martin Chulov" and "Jonathan Porter" under the headings of the newspaper articles was writing placed on the document that may reasonably be supposed to have been placed in the course of business for the purpose of describing or stating Mr Chulov's and Mr Porter's ownership of the articles in the sense of their authorship of them. I am not persuaded that is so. In my opinion, the text of an article printed in a newspaper or magazine is not writing placed on an object (including a document) within s 70. Moreover, without addressing consideration of such rights as employed journalists may have in their work published in a newspaper, magazine or periodical it is straining the language of s 70 to hold that the by-line has been placed on the document to state the ownership of the article.

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43 Exhibit F was admitted in the course of the evidence of Federal Agent Read on 14 March 2007. (T'cpt 496.1) His Honour directed the jury at the time of its admission that (T'cpt 14/3/07 496.34-55): Just while that's being distributed ladies and gentlemen [copies of exhibit F] I want to say something to you about the document which is about to be read to you, and I'll be going into some detail when I give my directions to you at the end of the evidence and after counsel have addressed. But the document, that is the article which you're about to hear contains in it a number of representations. Some person has written the article and in that article there are assertions of facts. At this stage you should note that the document is being tendered to prove the fact that those matters were published, that is to say that the fact that the article was written in those terms. The truth of what is said within the article is a completely separate matter, and the document is not to be used at this stage as to the truth of what is said in the article. Simply it's still a fact that the article was written. When I'm dealing with concepts of hearsay evidence it can be a little complex and difficult to understand. I can tell you a lot of lawyers don't really understand this concept sometimes. But if you can just note that distinction at the moment and I'll be dealing with it hopefully in a way that will make it all clear to you at the appropriate time. 44 Mr Lowe addressed the jury on the basis that exhibit F contained an assertion that the authors had obtained a copy of the reports. His Honour referred to this submission in the course of the summing up. He directed the jury that (SU 22/3/07 39-40): Now I should say something to you about that submission by Mr Lowe because of the principles relevant to what lawyers refer to as hearsay evidence. By embracing the representations to which he invited your attention and which he asked you to accept as evidence of the fact that the report was with News Limited, he is inviting you to accept those particular representations as evidence of the existence of that fact, that is, that there was a hardcopy of the report with The Australian at the time. Now in exhibit F in the first article, those passages upon which he would rely are in the first column about half way down and I quote." According to a classified Customs report" and then in the second column of the first article in exhibit F, the first full paragraph and I quote, "The report obtained by The Australian ". Now implicit in the submission that Mr Lowe has made to you is this proposition that he would have you accept that representation as evidence of the fact that it asserts. Well you may do so, but there a number of other representations in the document that you should not approach in the same way. Indeed, the balance of the article in its entirety and the balance of the other article, all of the other article rather, in exhibit F, you should simply view as evidence of the fact that those words were published in the newspaper on that day, for the purposes of comparing what was said and the passages quoted with what appears in exhibit A and B, so that you may draw, if you wish to do so, the inference that at the time those articles were prepared and written they had that text from those reports. That is the basis upon which the Crown tendered the articles and that is the way the Crown invites you to make use of the evidence. Mr Lowe has sought to make the greater use of those particular passages to which I have referred so that you might, in his submission, come to the view that the newspaper had a copy of the reports which would make redundant or unnecessary any need for the accused to communicate by telephone with the journalists or News Limited about the content of the reports. 45 Despite his Honour's indication that he proposed to admit the by-line "Martin Chulov Jonathan Porter" under s 70 as evidence of the authorship of the article, he does not appear to have done so. Neither the direction given at the time the exhibit was tendered nor the direction in the summing up admitted of the by-line being used as evidence of the fact of authorship. The only assertion in exhibit F which his Honour left to the jury as capable of being used by them as evidence of the fact were the two assertions relied upon by Mr Lowe to establish that that author had a hardcopy of the reports. 46 His Honour summed up on the basis that the Crown case was circumstantial. One of the circumstances that his Honour pointed out the Crown relied upon was that the names of the journalists, Martin Chulov and Jonathan Porter, appeared in the by-line for the articles "allowing the inference the Crown says that they were the authors of those articles". (SU 22/3/07, 27) The suggestion that the jury might infer from the by-line that the persons named in it were the authors of the article is an approach which has been applied in this State and in Victoria by judges hearing charges of contempt: R v Nationwide News Pty Ltd (Supreme Court of Victoria, 22 December 1997, unreported) Gillard J observed that: [I]n the normal course of things, a person is not described as the author of an article in a well-known national newspaper without his permission. In my opinion I am entitled to infer from the photograph and name appearing in the rectangular box on p24 as being some evidence that he was responsible for the article. 47 In Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 152 Howie J adopted a similar approach: It seems to me that the overwhelming inference to be drawn from the appearance of the by-line in the context of the newspaper as a whole is that the person named in the by-line is the author of what follows and the person responsible for its contents. This is so whether or not some other person within the papers' organisation also had responsibility for what was published, at least so far as the internal management of the newspaper is concerned. 48 The fact that the name Martin Chulov appeared in the by-line was a circumstance that was relevant to proof of the Crown's case and did not depend upon proof of the asserted fact, that Martin Chulov was an author of the article. The article could have been written by a sub-editor. The significance, when taken with the other circumstances, was that the name "Martin Chulov" appeared in association with the articles. MFI 46 49 Following their retirement the jury sent a note (MFI 46) asking: Does confirmation that the reports are genuine constitute communication of the contents? Does answering questions raised by Chulov in relation to the contents of the reports constitute communicating the contents of the reports? 50 During the course of the discussion concerning the directions that the trial judge might give in answer to the questions that the jury asked in MFI 46 there was the following exchange (T'cpt 22/3/07 54-55): HIS HONOUR: It may be that they are looking at what's contained in the text of the articles to infer that there has been some representation by - or that there has been some investigative role played by Chulov to elicit the information that is recorded in the articles. LOWE: It's the no speculate rule that would apply. HIS HONOUR: I think I'm just going to re visit - the simple answer to those two questions, in my assessment, is "yes" but it should be accompanied by, I believe, a further or a reminder that they should not be using the article for a hearsay purpose beyond that which was advanced by Mr Lowe and that they should not embark upon speculation as to what might or might not have been said by witnesses who are not called. It just seems to me that if they are undertaking that exercise to which I've alluded, it may be they're trying to look at the representation or a representation in that article or one of the articles or both and from that taking the view that it is evidence of the existence of that fact and then saying, "well, if that is the fact, is that an act of communication" which is contrary to what I've told them about the hearsay principles. LOWE: It may be a section 165 direction is required, your Honour. It may be, because it's hearsay evidence, 165(1)(a). HIS HONOUR: But it's not unreliable because they're only looking at it as to the fact of the publication and they're asked to compare - and I've told them that they should look to the quoted passages for comparison with the content of exhibit A and exhibit B, to see whether they can infer communication from those facts. LOWE: Yes but it's the pernicious effect about the third question that's been posed. 51 Section 165(2) of the Evidence Act requires a trial judge in a case in which there is a jury to give a warning about evidence of a kind that may be unreliable if requested to do so by a party. Section 165(1) (a) - (g) lists the kinds of evidence that may be unreliable including hearsay evidence. Accepting for present purposes that the exchange above can be characterised as a request for a warning under s 165, it was a request for a warning that exhibit F may be unreliable because it was hearsay. A judge is not required to give a warning at the request of a party that evidence is of a kind that may be unreliable if there are good reasons for not doing so. The discussion which followed Mr Lowe's statement that "it may be a section 165 direction is required" makes plain that the Judge did not give such direction because the jury had been directed not to use the newspaper article for a hearsay purpose. His Honour's failure to give a direction that the copy of the newspaper article, exhibit F, may be unreliable because it was hearsay was not an error: the only hearsay use which his Honour directed the jury they might make of the contents of the article was the use that the appellant's counsel invited them to make. 52 Neither Martin Chulov nor Jonathan Porter gave evidence in the Crown case. Mr Lowe asked the trial judge to give a "full Jones v Dunkel" direction ([1959] HCA 8; (1959) 101 CLR 298). (T'cpt 21/3/07 74.39) 53 Federal Agent Read gave evidence of inquiries made by himself and by another officer concerning Mr Chulov and Mr Porter. Neither journalist had been willing to provide a statement or to assist the AFP in the investigation of the matter. Officer Read had been informed that Martin Chulov was overseas as at January 2006. He sent an email to Mr Chulov on 26 February 2007, to which he received a response from Mr Chulov on the same date advising that Mr Chulov's position had not changed. The emails were in evidence, exhibit J. Mr Porter was in the jurisdiction. The Crown had served a subpoena on him to attend and give evidence at the trial. The Crown Prosecutor informed the Court that it was not his intention to call Mr Porter. 54 In Dyers v R [2002] HCA 45; (2002) 210 CLR 285 at 291 and 295 Gaudron and Hayne JJ observed: Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses. 55 There was an explanation given for the circumstance that neither Mr Chulov nor Mr Porter were called at the trial in the Crown case. 56 Dr Glennon pointed to the reasons given by the Crown Prosecutor in the absence of the jury, for the decision not to call Mr Porter (T'cpt 8/3/07 151.49-54): … the Crown's position at the moment, as I indicated yesterday, the Crown does not wish to call Mr Porter, the Crown has had a subpoena issued and served so that he may be made available should the defence require him. We don't know what he will say, he won't assist, he won't cooperate, he is an unknown quantity, your Honour.

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In Dr Glennon's submission, the Crown made a "nakedly tactical" decision not to call Mr Porter and called for a Jones v Dunkel direction. 57 This evidence was that neither journalist wished to cooperate with the authorities in the prosecution of the appellant. On the hearing of the appeal the Crown submitted that the prosecutor's forensic decision not to call Mr Porter was reasonable. This was because it was highly probable that if called Mr Porter would decline to disclose his source. There was no reason to consider that Mr Porter's evidence would tend to exculpate the appellant. As a matter of practical reality, calling Mr Porter was likely to be a distraction in that time would be taken up with consideration of the scope of the "protected confidence" privilege under s 126B of the Evidence Act and in the event that such a claim were unsuccessful with the prospect of Mr Porter nonetheless refusing to identify his source. The latter course, it was suggested, might occasion further delay arising out of consideration of contempt. In light of the results of the AFP's inquiries and the ethical obligations of journalists with respect to the protection of the identity of sources, the Crown Prosecutor's assumption that Mr Porter's evidence was unlikely to advance either the Crown's or the appellant's case was reasonable. There is no basis to characterise the decision as a tactical one reflecting a view that Mr Porter's evidence was unlikely to accord with the "Crown case theory": cf R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450. The trial did not miscarry as the result of the decision not to call Mr Porter in the Crown case. There was an explanation for the fact that the Crown did not call either journalist in its case. No occasion arose for the Judge to give a Jones v Dunkel direction. 58 The trial judge raised with counsel the response to be made to the jury's two questions contained in MFI 46. (T'cpt 22/3/07 53-60) The questions are set out at [49] above. In the protracted discussion that followed, Mr Lowe's submissions ranged from the suggestion of a s 165 warning to a renewed request for a Jones v Dunkel direction. They fastened on the concern that the jury may be engaging in impermissible speculation. It was not clear how Mr Lowe suggested that trial judge should answer the questions. The answer that the Judge gave is set out as follows: (T'cpt 22/3/07 62-63, 65): In simple terms, one might answer both of those questions with "yes" but it is a little more complex than that and I need to go into some of the matters that I have already spoken about to you. "Confirmation that the reports are genuine" may involve a range of communications that in some instances may amount to a confirmation or rather amount to a communication of the contents, or it might not quite get across that threshold, depending upon what was said. The fact is there is no evidence of precisely what was done to communicate the contents of the report. The Crown has said to you that the evidence allows as the only rational inference that the accused communicated the contents of the report and communication of the contents of the report may have taken various forms, the precise nature of which is just not known. For example, the communication of the contents of the reports may have been by way of the document or documents in their hardcopy. The communication of the contents of the reports may have been by reading parts of the reports out to the person to whom the information is being communicated. The contents of the reports may have been communicated by way of an intermediary, or by an indirect route, to those to whom the Crown has said that the reports or the contents of the reports were communicated; from the accused to another person through a chain, as it were, with the purpose eventually to reach the journalists for the purposes of their publication. The Crown is not in a position, and indeed you are not in a position, to say one way or the other how that communication actually took place, but the Crown says that the evidence establishes that beyond reasonable doubt, and by way of the only rational inference, that the communication did take place, that is a communication by the accused to the journalists, directly or indirectly. Now, it may also be communicated, that is the content of the reports may also be communicated in circumstances where the report or reports have been provided to the journalists and one or both of them have engaged the accused in conversation to discuss the contents of the reports, as you have asked, to confirm the accuracy or the bona fides or the veracity of some or all of the contents of the reports . The Crown is not obliged to prove that all of the contents of the reports were communicated. Any part of the contents of the reports would satisfy that particular element of the charge, if they were communicated directly or indirectly by the accused to the journalists. … As I told you earlier, Mr Lowe said, there are two passages in that newspaper article that would lead you to the view that The Australian had copies of the reports, a hardcopy of the reports, and therefore the telephone calls, the contacts, the particulars of the phone numbers found in the possession of the accused are really neither here nor there because why would he need those if there've already got a copy of the report? Well, if they do have a copy of the report and there is this telephone contact and there are communications between the accused and the journalists, to confirm or discuss the content of the report, that may be a communication of the content of the report for the purposes of this provision and this charge and if that was something of which you were satisfied beyond reasonable doubt as an inference, the only rational inference to draw from the evidence that is before you, that is a finding that you may come to. 59 After giving this direction the trial judge asked counsel if they wished him to revisit any aspect of it. Mr Lowe responded, "No I don't think they're shy from coming forward your Honour". (T'cpt 22/3/07, 73) 60 The submissions filed by Dr Glennon contended that his Honour's initial answer "yes" to the jury's question was wrong. The submissions went on to assert that the great vice in the directions was "the potential for speculation and great confusion leading to a miscarriage of justice". (WS [96]) 61 The jury's questions raised whether it was sufficient for the Crown to establish that the appellant had confirmed the accuracy of material that the journalists had obtained from another source. His Honour directed the jury that it was. The direction was wrong. The offence under s 70 may be committed by publishing or communicating a fact which came to the knowledge of the accused by virtue of having been a Commonwealth officer or by publishing or communicating a document which came into his or her possession by virtue of having been a Commonwealth officer or by both. This was a case in which the offence charged was the communication of the documents. To confirm the accuracy of a document leaked by another to a journalist may be to communicate a fact, but in my opinion it is not to communicate the document. In any event, the Crown case was that the appellant was the person who was the source of the "leak". 62 In written submissions the Crown acknowledged that the opening words of the direction at [58] above was wrong, but the Crown submitted the opening words were to be understood in the context of the whole which was said to have emphasised the need not to focus on what the nature of the communication might have been but rather on whether the Crown had established that it was the appellant who had communicated the contents of the reports. 63 The Crown's submission is to be assessed against the highlighted parts of his Honour's direction set out at par [58]. 64 Dr Glennon submitted that defence counsel had repeatedly "voiced objection to the many areas of speculation that his Honour touched upon" during the exchanges before the direction was given. (WS [102]) This submission has the same opacity as the submissions made at trial. At the commencement of the discussion the trial judge expressed the provisional view that confirming the genuineness of the reports would amount to communicating the contents of the documents. (T'cpt 22/3/07 53) At no point in the lengthy discussion that followed did Mr Lowe submit that to answer the jury's question in this way was wrong in law and was not the case that the Crown had run. He did not request any re-direction after the answer was given. On the hearing of the appeal the Crown did not submit that leave should not be granted to allow the appellant to rely on ground 6 by reason of r 4 of the Criminal Appeal Rules. As noted, the matter was argued on the appellant's behalf on the assumption that leave was not required because counsel, "made clear his objection to his Honour's course of proposed directions, which touched upon the questions posed by MFI 46". (WS [103]) This overstates the position. However, since the question of leave under r 4 was not agitated on the hearing it is not appropriate to refuse leave to permit the appellant to rely on a ground of appeal that has been made good. The trial judge's directions given in answer to the two questions asked by the jury were wrong. The consequences of this error will be addressed after dealing with the remaining grounds of appeal.

[28]

The directions concerning MFI 1 and MFI 2 65 Exhibits A and B were redacted copies of the reports. Full copies of each report were MFI 1 and MFI 2 respectively. During the course of their retirement the jury sent a note (MFI 52): We have found extracts in The Australian (31 May 05) articles that indicate they could only have come from the draft " Tarmac Report " (exhibit 2). We wish to be sure that these extracts do not exist in MFI 1 and/or MFI 2, example exhibit F, second column, second para - "it says baggage handlers, etc" and relates to exhibit 2 page 4. Also the reference to Operation Barina does not exist in MFI 1 or MFI 2. 66 Exhibit 2 comprised an email with an attachment being another redacted version of one of the reports. 67 The trial judge directed the jury that MFI 1 and MFI 2 were not exhibits and that they could not be given access to either of them. His Honour's directions in this respect are not the subject of complaint. The Crown Prosecutor asked the Judge to give the jury a further direction to the effect that it was not necessary that they be satisfied beyond reasonable doubt that everything in the articles came from the reports. His Honour gave the jury this further direction (SU 26/3/07 9): It is not necessary for you to be satisfied beyond reasonable doubt that everything appearing in the newspaper fell from the reports. If some of what appears in the newspaper is established by the Crown to be content of the reports that would be sufficient for the Crown to have established that particular aspect of its case, because we are not talking about the question of who was the person who did the communication, we are just talking about whether or not there had been communication by some person. But relevant to that question, it is not necessary that you look at the newspaper article and be satisfied beyond reasonable doubt that all that you read there came from the reports before you could find that the Crown succeeded on that one particular aspect of the case. If you came to the view beyond reasonable doubt that there was some content from the reports, of which exhibit A and exhibit B are the redacted copies, were published or found their way into the newspaper articles in exhibit F, that would be sufficient for that particular aspect of the Crown case. 68 In the written submissions filed on the appellant's behalf it was contended that the redirection was unnecessary and not responsive to the issues raised by the question in MFI 52. The answer to the question asked was that the material was not in evidence. The further directions, so it is said, had the potential to cause "further confusion to the jury". Beyond this assertion, the submissions do not identify any error in the direction or expound on the respects in which the direction is said to have been susceptible of causing confusion. It was open to his Honour to consider that simply informing the jury that they could not have recourse to material that was not in evidence was an insufficient response to their query. There is no merit to this ground. The admission of the appellant's emails 69 Mr Lowe objected to the tender of a printed copy of an email dated 9 June 2005 from "Allan Kessing" to "Donnata Scattolin" (exhibit M). The subject of the email was stated in the heading as "Out at Last", the body of the email read as follows: Donna, perhaps you have heard on the grapevine that I finally quit. After all the argument with Beach over time off for my mom's leukaemia needs, he had the gall to smarm at me on the first morning back "how's your mum". It was all I could do from flattening him then & there so I just typed out I RESIGN sent it via email and dropped a hardcopy on his desk before taking my place on the Line. Do you reckon I feel light & free???? I walked out of that air conditioned hellhole feeling like a 20 yr old and haven't given it a moment thought since. Except when I open my email and see your last so I shall ring you when I next have a window 'twixt Mum and Margaret. It feels so good I thoroughly recommend you pull the plug too, esp with the latest bullshit from John Anderson, $200M to upgrade airport security but we need a Pom to figure out how! I'd love to know who leaked the report to the press because there aren't that many who would be privy to it, surely less than a dozen. I had to laugh when first all & sundry were denying it, then running for cover and now blowing the budget. Typical arse covering without actually doing anything effective, wotta surprise! 70 Mr Lowe submitted that the email was not relevant and, in the alternative, that it should be excluded in the exercise of the discretions under s 135 or s 137. (T'cpt 15/3/07 591.35-58) His Honour considered the relevance of the email to be its capacity to demonstrate that the appellant entertained feelings of acrimony towards the ACS. He asked Mr Lowe what unfair prejudice would be occasioned by its admission. Mr Lowe responded, "because in the scheme of life one is entitled to lose your temper". (T'cpt 15/3/07 593.29-30) 71 Dr Glennon submitted that it was an error to admit exhibit M, since while it was capable of showing the appellant's hostile feelings towards Mr Beach, an individual, it was not capable of demonstrating acrimony towards the ACS as an organisation. While the contents of the email evidenced the appellant's resentment of Mr Beach's attitude concerning his leave, it was capable of being understood as evidencing a wider disillusionment with the ACS at the material time. It was relevant to the question of whether the appellant had a motive to seek to embarrass the ACS by the exposure of the matters that were the subject of the Risk Analysis. It was not incumbent on the Crown to prove a motive, however, this is not to say that evidence capable of establishing a motive was not relevant. No danger of unfair prejudice was identified in the course of the submissions at the time the objection was taken. His Honour did not err in concluding that the probative value of exhibit M was not outweighed by the danger of unfair prejudice to the appellant. 72 A bundle of emails relating to the appellant's unauthorised absence from work were admitted (exhibit E). Dr Glennon submitted that it was an error to admit these documents because they were not relevant to any issue in the trial. The emails were capable of establishing that in the period leading up to his resignation the relationship between the appellant and his superiors within the ACS was a poor one. In the Crown's submission, they were evidence demonstrating that the appellant was a disgruntled and insubordinate employee, possessed of a motive to embarrass the ACS. Dr Glennon submitted that this construction was not supportable. Rather, he submitted that the emails showed the ACS accommodating the appellant by the provision of extended leave. This was a question for the jury. The correspondence was plainly capable of bearing the complexion which the Crown advanced. There is no substance to grounds 9 and 10.

[29]

The proviso 73 The appellant has established that there was a wrong decision on a question of law within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). The Crown submitted that in the event the Court found error, the appeal should nonetheless be dismissed under the proviso in s 6(1) in that no substantial miscarriage of justice actually occurred. 74 In deciding whether a substantial miscarriage of justice has actually occurred the Court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in proceeding wholly on the record, the guilt of the accused was established beyond reasonable doubt: Weiss v R [2005] HCA 81; (2005) 224 CLR 300. As the Court explained in Weiss, this task is undertaken in the same way as the determination of whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence: at 316 [41]. 75 In some cases the nature of the error made at trial is such that regardless of the assessment of the strength of the evidence it would be inappropriate to apply the proviso. Cases involving a significant denial of procedural fairness or where the consequence of the failure of process at trial has been to deprive the appellate court of the capacity to justly assess the strength of the case against the appellant provide examples of such instances: Weiss at 317 [45]; Nudd v R [2006] HCA 9; (2006) 80 ALJR 614 per Gleeson CJ. This is not a case involving error of those kinds. The erroneous direction did not involve such a departure from the essential requirements of the law as to go to the root of the proceedings: Wilde v R [1988] HCA 6; (1987-1988) 164 CLR 365 per Brennan, Dawson and Toohey JJ at 373. 76 The appellant contends that the verdict was unreasonable and cannot be supported by the evidence. The Crown submits that the case overwhelmingly established the guilt of the appellant, such that the wrong direction was not productive of a substantial miscarriage. Both contentions require this Court to undertake an independent assessment of the evidence. The Court is required to undertake the same exercise, but the questions to be determined are different. The appellant's ground requires the Court to decide whether upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty: M v R [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493. The application of the proviso involves consideration of the negative proposition stated in Weiss, which is that it cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved beyond reasonable doubt the appellant's guilt of the offence: at 317 [44]. 77 In Gassy v R [2008] HCA 18; (2008) 82 ALJR 838 Gummow and Hayne JJ at 848 [35] noted that the jury in that case had deliberated for a relatively lengthy time. Their Honours observed that the difficulties the jury experienced suggested a need for caution on the part of an appellate court before concluding on a review of the record that the offence charged was proved beyond reasonable doubt. That is a caution which is to be borne in mind in assessing the Crown's submission in this case that the appeal should be dismissed pursuant to the proviso. There was a lengthy retirement in this case. 78 Dr Glennon's submission in support of the ground that the verdict could not be supported on the evidence did not descend to an analysis of the evidence. The submissions were focussed on what were said to be the factual and legal similarities between this case and Kelly. In Kelly the Court of Appeal, by majority, directed an acquittal. An assertion that a verdict cannot be supported by the evidence necessarily turns upon the facts of the case and is not helpfully advanced by reference to the outcome of an appeal in a case involving different facts. It is to be noted that in Kelly there was evidence of telephone contact between Mr Kelly and the journalist who had received a leaked copy of a draft ministerial statement. That circumstance may be thought similar to one circumstance in this case. Some dissimilarities between the two include that the draft ministerial statement had been furnished by email to about 300 employees of the Department of Veterans' Affairs throughout Australia. No security was attached to the emails and hardcopies of the attachments had been printed. After the decision to withdrawn the information there had been no systematic recovery of the hardcopies. The journalists to whom the statement had been leaked were based in Canberra and Mr Kelly was based in Melbourne. 79 A comparison of the copy of The Australian for 31 May 2005, exhibit F, with the redacted copies of the Risk Analysis and the Threat Assessment reports clearly demonstrates that the author/s of the articles had access to the contents of at least the Risk Analysis report. The central question is whether the Crown established beyond reasonable doubt that it was the appellant who communicated the contents of the report/s to the author/s of the articles. 80 The Crown relies on the following circumstances to prove the intentional communication of the contents of the Risk Analysis: (a) The appellant was a former ACS officer who had worked in the secure area known as the Air Border Security (ABS) team. (b) Each of the reports had been authored by his superior officer, Ms Magni, during the time when the appellant was a member of that team. (c) The appellant, with other members of the ABS team, had worked collaboratively on certain parts of the reports during their compilation. He had worked as a researcher for the first report, the Threat Assessment report (exhibit A). (d) As a member of the ABS team, the appellant received, or had access to, copies of both reports for reading and review. These were provided in electronic and hardcopy. He had received electronic versions of the reports from Ms Magni and in respect of the Risk Analysis report had replied to Ms Magni via email with suggested amendments and comments. (e) Copies of the reports, containing the text and content that was published in The Australian on 31 May 2005, were found in the premises in which the appellant was residing, his home residence and his mother's residence, during the execution of search warrants on 6 September 2005. The Threat Assessment report (exhibit A) was located in a box in the bathroom of the appellant's home at 100 Darling Causeway, Mount Victoria and a copy of the Risk Analysis report (exhibit B) was located in an envelope on the floor, in the spare room of the appellant's mother's home at 30 Lilydale Street, Marrickville. (f) The appellant resigned from the ACS on 10 May 2005. (g) There was evidence from which it was open to conclude that the appellant was a "disgruntled employee" with a motive to seek to embarrass the ACS or to publicly expose what he perceived to be its inaction regarding the subject matter of the reports. (h) The business card bearing the name Martin Chulov was located during the search of the premises at XXXXX on the floor of the room in which the Threat Assessment report had been located. The business card bore the contact telephone numbers for Mr Chulov and an email address chulovm@theaustralian.com and the business address of The Australian printed on it. (i) A notepad (exhibit N) on which were written Mr Chulov's mobile telephone number and email address was located on a dresser next to the bed in the main bedroom of the appellant's home at Mount Victoria. (i) Call charge records for the appellant's home land line service connected at 100 Darling Causeway, Mount Victoria revealed telephone calls made from that service to telephone numbers allocated to The Australian on seven occasions between 26 March and 28 May. The telephone calls varied in duration. A call on 24 May 2005 at 6:40pm was of 21 minutes 49 seconds duration. (j) Call charge records for the land line telephone service connected to the appellant's mother's home revealed a telephone call to a telephone number allocated to The Australian on 28 March 2005. (k) Call charge records for a public telephone located in Lilydale Street recorded a call at 12:26pm on 30 May 2005 to the mobile telephone service identified as Martin Chulov's service, the number recorded on the notepad found in the appellant's bedroom. The public telephone was approximately 70 metres from the appellant's mother's home. (l) The article published in The Australian on 31 May 2005 bore the name Martin Chulov in the by-line.

[30]

Each of these circumstances was established by unchallenged evidence that did not depend on an assessment of the credibility of witnesses. As I have noted, there is an issue concerning whether the evidence of the email communications established that the appellant was a person with a motive to seek to embarrass the ACS. In my opinion, the contents of the emails is eloquent of the fact that he was. 81 Ms Magni and each of the officers in the ABS Team at the time the two reports were prepared gave evidence at the trial. Each denied being the source of the communication. Ms Magni was cross-examined to establish that she was disgruntled in the way the ABS Team and the reports had been treated. She agreed that she had been unhappy about the fact that her small ABS Team was being subsumed into a larger group. She explained that her unhappiness arose from the lack of communication about how this transition was to take place. (T'cpt 19/3/07 646.19-27) At the time of giving evidence Ms Magni was still in the employ of the ACS. Members of the ABS Team who had been given access to the reports at the time of their preparation each stated that they had not forwarded electronic copies to anyone outside the ABS Team, nor had they made hardcopies of the reports. None had taken copies of the reports outside the secure ABS Team room. 82 Each officer who had worked within the ABS Team, between the time the reports were created and 31 May 2005, was called to give evidence, save for one officer, Peter Anastasi, who had left the ACS and who was understood to be out of the country. Each of these officers denied communicating the content of the reports to any person outside the ACS. Each gave evidence that they had access to the reports within the secure ABS Team room and that they had not made any copies of the reports nor taken copies of the reports out of the ABS Team room. 83 Ms Magni had supplied hardcopies of the Threat Assessment and Risk Analysis reports to her immediate supervisor, Mr Pappas. Copies of the reports had been furnished to Mr Pappas' superiors. Copies had been sent electronically to identified senior officers of ACS. Each of the officers who had received a copy of one or more of the reports was called and gave evidence denying that they had communicated the contents of the reports to person outside the ACS. 84 Contrary to the appellant's submissions, the evidence did not establish that prior to 31 May 2005 copies of the reports had been distributed to the AFP, other law enforcement agencies or the Airports Corporation. Ms Oderberg, the ACS liaison officer attached to the AFP, had been supplied with a document, but this was not a copy of either of the reports. The document that Ms Oderberg had communicated to the AFP was authored by Jess Hemmings. Mr Max Moore-Wilton, of the Airports Corporation was supplied with a copy of the reports, but this did not occur prior to the publication in The Australian on 31 May 2005. 85 The evidence showed that a number of persons within the ACS had been given hardcopies or electronic copies of one or both of the reports. It did not establish that no person other than the appellant could have communicated the contents of the reports to Martin Chulov or any other person at The Australian. The fact that the appellant had taken home copies of each report demonstrated that the security measures adopted by Ms Magni and her superiors were not failsafe. 86 The evidence established that the Threat Assessment and the Risk Analysis reports were treated within ACS as confidential documents with restrictions on the circulation of each. The evidence of the security measures adopted with respect to the reports was a circumstance to be taken into account in considering as a rational hypothesis that another officer within the relatively small group of persons who had access to the reports had also taken a copy of each, or at least the Risk Analysis report, from the secure ACS offices at the airport. It was not without significance that the appellant undoubtedly had taken copies of each report from the secure ABS Team room and kept them at his places of residence, notwithstanding his obligation to return material at the time he ceased his employment with the Commonwealth. 87 This was a powerful circumstantial case in which the overwhelming inference was that the appellant was the person who communicated the contents of the reports (or at least of the Risk Analysis report) to Mr Chulov. I am satisfied that the Crown established the appellant's guilt of the offence beyond reasonable doubt. Notwithstanding the erroneous direction given by the trial judge in answer to the questions asked by the jury, I have concluded that no substantial miscarriage of justice actually occurred and, accordingly, I propose that the appeal be dismissed. 88 ROTHMAN J: I agree with Bell JA. 89 PRICE J: I agree with Bell JA.

Kessing v R

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Cases Cited (16)

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