The question for determination that is before me has arisen in the context of the settling of the elements document in relation to count two in this trial.
Count two is in the following terms:
"Between about 5 March 2020 and about 10 March 2020, at Sydney in the State of New South Wales and elsewhere, aided, abetted, counselled or procured the commission of an offence by [Mr X], namely that [Mr X], knowing that a thing is or may be required in evidence in a judicial proceeding, namely the prosecution of [Mr Y] being a federal judicial proceeding, destroyed that thing with the intention of preventing it from being used in evidence."
That question is, is it an element of count two that the Accused expected at the time he performed the alleged physical elements of the charge (i.e. counselled or procured et cetera) by suggesting to Mr X that certain WeChat messages be deleted, that Mr X would, if he deleted those messages, have the requisite intent to constitute an offence, being a breach of s 39(1) of the Crimes Act 1914 (Cth) ("Crimes Act") being:
"An intention of preventing it (the WeChat messages) from being used in evidence…"
The Crown relies on what was said by Wigney J in the Federal Court of Australia in Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited [2021] FCA 1345 ("Citibank"), at paragraphs [169] to [178], but in particular at [177], where His Honour said (my emphasis):
"It follows from the two points just emphasised that the prosecutor is not required to prove that Mr Moscati and ANZ knew all of the details of the contravention of s 44ZZRG(1) committed, or to be committed, by JP Morgan. It is sufficient to prove that Mr Moscati and ANZ knew the facts and circumstances which would establish that JP Morgan committed, or would commit, a contravention of the "type" committed by JP Morgan. The prosecutor is also not required to prove that Mr Moscati or ANZ knew that the conduct by JP Morgan that they were aiding, abetting, counselling or procuring was a contravention or offence."
The Crown's submission, based on that passage, is that it is necessary to make out the relevant element is to establish that if Mr X destroyed the relevant emails, he would commit a contravention of the "type" contemplated by s 39.
The Crown contends that all that is necessary to be proved is that the Accused intentionally procured or counselled the deletion of the messages and nothing more. The Crown points out when Wigney J stated that it is necessary to do no more than demonstrate a contravention of the "type" of offence, therefore, so the argument goes, it is not necessary to prove any mental elements because the mental elements in various offences which may all encompass a particular "type" may well be different.
It seems to me that there are a number of considerable difficulties with the Crown's submission. The first is that Wigney J does not in any way explain, nor does any other case that I'm aware of explain, what one does in circumstances where there is a group of offences that can be characterised as a "type", but they have different fault or mental elements. The second hurdle is the statute itself - s 11(2) of the Criminal Code Act 1995 (Cth) ("Criminal Code") is in the following terms:
11.2 Complicity and common purpose
(1) A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a) the person's conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a) his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b) his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
(3A) Subsection (3) has effect subject to subsection (6).
(4) A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent the commission of the offence.
(5) A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the other person has not been prosecuted or has not been found guilty.
(6) Any special liability provisions that apply to an offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1).
(7) If the trier of fact is satisfied beyond reasonable doubt that a person either:
(a) is guilty of a particular offence otherwise than because of the operation of subsection (1); or
(b) is guilty of that offence because of the operation of subsection (1);
but is not able to determine which, the trier of fact may nonetheless find the person guilty of that offence.
The words in brackets in subs 3, ("including its fault elements"), are to my mind clear. The reference to fault elements is a reference not to physical acts, but to the mental state required to be proved to sustain a conviction.
Considerable emphasis was placed by the parties on the decision of the Court of Appeal in Blundell v The Queen [2019] NSWCCA 3 ("Blundell"), and in particular what was said by N Adams J in that decision from paragraphs [131] - [156].
Two things are clear from that judgment, the first is that Her Honour cites with approval what Rothman J said in R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 ("Spiteri-Ahern") and specifically what Rothman J said at paragraphs [30] to [37] of that judgment (see paragraph [132] of Blundell). The second is that Rothman J in Spiteri-Ahern quotes with approval what the High Court said in Giorgianni v The Queen (1985) 156 CLR 473 ("Giorgianni"), and in particular what Gibbs CJ said at [487] - [488].
The third hurdle for the Crown is that, unless Giorgianni has been overtaken by statutory amendment, it is clear authority for the following proposition:
"no one may be convicted of aiding and abetting counselling or procuring the commission of an offence unless knowing all the essential facts which made what was done a crime…"
The Crown submits that Giorgianni is no longer good law because, it correctly observes that the common law being explained in Giorgianni did not allow for a concept of recklessness about the commission of the underlying offence (including its fault elements), but that s 11.2(3)(b) of the Criminal Code does just that. So, the submission goes that it was the intent of the legislation to change the common law as explained in Giorgianni.
So much may be accepted in so far as recklessness is concerned, but the real question is, did the Parliament of the Commonwealth intend by subs 3(a) to alter anything that was said to be the law in Giorgianni.
It should be observed that whilst Giorgianni pre-dates s 11.2, both Spiteri-Ahern and Blundell post-date it. Both of those decisions in terms apply the relevant law as explained in Giorgianni.
The Accused submits that the Crown is over complicating things and misreading Wigney J's reasons in the Citibank case. The Accused submits it is wrong to suggest that it is not a necessary element of count two that the Accused knew or at least expected at the time of the alleged procuring et cetera, that Mr X would have the intention, if he destroyed the messages, of preventing them being used in evidence.
The Accused contends that the reference to "like offences" referred to by Wigney J in the Citibank case is itself a distraction, because in this case there is only one identifiable offence which the facts alleged by the Crown could support and that is a breach of s 39 of the Crimes Act, being destroying evidence. That offence does have a mental element.
The Accused's fundamental submission is that what was said by the High Court in Giorgianni as approved and applied by Rothman J in Spiteri-Ahern, and again approved and applied by the Court of Appeal in Blundell, remains good law and is entirely consistent with the words of s 11.2(3), which is a matter of construction, demands that the Accused intended that his acts would result in the commission of an offence by Mr X, including not just the physical elements of the offence but it's "fault elements". This is one of the "essential elements" being referred to by Gibbs CJ in Giorgianni. The Crown's response to this is that "fault elements" in subs 3(a) must be read down to only be a reference to the physical elements of the underlying offence.
Having considered the competing positions of the parties, I am satisfied that the law as articulated by Gibbs CJ in Giorgianni at [487] - [488], as confirmed by the plurality (Wilson, Dean, and Dawson JJ at [500] - [505]), picking up what Lord Goddard CJ said in Thomas v. Lindop [1950] 1 All ER 966 at [968] remains good law and is consistent with the plain words of s 11.2 of the Criminal Code and none of this was altered by Wigney J's decision in the Citibank case.
I consider what Wigney J was saying was no more than to confirm that it has always been the law that an accessory can be liable, even if not aware of the illegal nature of the conduct which constitutes the underlying offence to be committed by the principal. In other words, what His Honour was saying was that it is not necessary to demonstrate that the alleged principal offender would have knowledge of the actual offence being committed or even that it was an offence. This is entirely consistent with what is said in Giorgianni at [505-06] and also the well-known passage in Yorke v Lucas (1985) 158 CLR 661 at [667]. Apart from anything else, I think that if Wigney J thought he was doing anything other than applying the law as explained in Giorgianni, as opposed to coming to a conclusion that the proper construction of the Criminal Code was that it had substantially altered the law as explained in that case, he would have said so in terms. Moreover, His Honour did not mention the words in brackets ("including its fault elements"), which is yet another reason why I think he was speaking of a different matter. Finally, to my mind the plain words of s 11.2(3) are clear and are consistent with the law as it stood at the time. If Parliament wished to alter that law, it would have used different words. If Wigney J thought "fault elements" ought be construed as only referable to physical elements, he would have said so in terms.
For those reasons, I have concluded that it is an element of count two that at the time the Accused allegedly aided, abetted, counselled, or procured the commission of the alleged offence by Mr X, the Accused expected that Mr X, if he destroyed the messages, would be doing so with Mr X having the intention of preventing them from being used in evidence.
[2]
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Decision last updated: 02 August 2024