R v SELIM

R v SELIM - [2007] NSWSC 362 - NSWSC 2007 case summary — Zoe

[11]

Particulars The computer data was the data on the Pan Pharmaceuticals Limited's HPLC computer which contained the said Travacalm data. 3 Both counts are charged by reference to s 39 of the Crimes Act 1914 (Cth) as the offence creating provision. It provides that: Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, intentionally destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence, shall be guilty of an offence. 4 Relevant provisions of the Criminal Code Act 1995 (Cth) provide the structure within which the constituent elements of an offence against s 39 must be construed. Argument has focused on particular provisions in Chapter 2 of the Criminal Code (Cth) to which I will later refer. The Crown also relies upon the provisions relating to "innocent agency" as provided for in s 11.3 Criminal Code (Cth), although no issue arises as to the operation of this provision on this application. 5 The withdrawal of the second count from the jury was a matter that had been adverted to as a possibility in discussions I initiated with counsel once it became evident that the opinion evidence the Crown proposed to lead from Mr Bussing, an expert in the retrieval and recovery of computer data, would be different in material respects from the conclusions expressed in his statement of October 2006 (served as part of the brief of evidence). The reasons for and the extent of the change in the evidence the Crown proposed to lead from Mr Bussing have been canvassed by me in a judgment already published in the proceedings and I do not repeat my findings (see R v Selim [2007] NSWSC 322). 6 For the purposes of the application to withdraw the second count from the jury, it is clear that it was those parts of the October 2006 statement that Mr Bussing has since abandoned that Mr Robberds QC referred to in his opening remarks to the jury when explaining to them the basis for the attempt count being included on the indictment. 7 In his opening Mr Robberds QC submitted: Now, the fact that there is some data still on that computer brings me to the second alternative count in the indictment. The principal Crown case is that Mr Brooks, acting on the instructions of the accused, activated the Seagate Disk Wizard programme and effectively destroyed or rendered the Travacalm data on the computer illegible.

[13]

11 The primary basis advanced by Mr Byrne for a directed verdict is that, on a proper construction of the constituent fault and physical elements of the offence created by s 39 of the Crimes Act (Cth), there is a no evidence of an essential component of the circumstance to which the fault element of knowledge must relate. The Crown concedes that, were the construction of s 39 as contended for by the accused correct, a directed verdict must be the result. I should note that this issue (although perhaps not quite the way the argument has crystallised) has been latent in the trial from the outset, in that neither the Crown nor the accused opened to the jury on the fault element in respect of either of counts one or two on the indictment, informing the jury that that was a matter upon which they would be directed at the conclusion of the evidence. I am informed by counsel that the precise way in which the argument is put here was not advanced in earlier trial proceedings in respect of the same indictment, and I am satisfied that it was not the subject of the decision in this Court where leave was sought under s 5F of the Criminal Appeal Act 1912, Selim v Regina [2006] NSWCCA 378. I am also informed that there is no guidance from other courts in the Commonwealth and, moreover, that there has been no prosecution of any person under this section of which those instructing the Crown are aware. 12 By operation of s.2.1 of the Criminal Code (Cth) the construction that must be given to the constituent elements of an offence under s 39 of the Crimes Act (Cth) is that which is provided for in ss 3.1 and 3.2 of the Criminal Code (Cth): 3.1 Elements (1) An offence consists of physical elements and fault elements. (2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements. (3) The law that creates the offence may provide different fault elements for different physical elements. 3.2 Establishing guilt in respect of offences In order for a person to be found guilty of committing an offence the following must be proved: (a) the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt; (b) in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element. 13 Once the relevant physical and fault elements are identified (noting that s 3.1(3) provides that there may be more than one physical and fault element in the offence, as is the case here) s 3.2 provides that in order for guilt to be established the physical element or elements need to be proved and, in respect of each such physical element for which a fault element is required, proof of one of the fault elements must also be established. Sections 13.1 and 13.2 impose on the prosecution the legal burden of proving every element of an offence relevant to the guilt of the person charged and to the criminal standard of proof. 14 Sections 6.1(2) and 6.2(2) of the Criminal Code (Cth) make provision for strict or absolute liability to apply to a particular physical element of a particular offence and s 3.1(2) recognises that the law creating the offence may provide for no fault element for one or more physical element. Self evidently, the Parliament made no provision in s 39 for any of the constituent physical elements to be the subject of the application of either strict or absolute liability. Neither has it provided for a no fault element in respect of any physical element. Accordingly, the section must be construed in the way provided for in s 3.2 of the Criminal Code (Cth).

[14]

15 In the process of amending various sections within Part III of the Crimes Act (Cth) to ensure conformity with the principles of criminal responsibility as expressed in the Criminal Code (Cth) (including an amendment to s 39), the Parliament made express provision for the physical element in particular sections of that Part to have strict or absolute liability applied to them (see sections 42 and 43 where absolute liability applies to the physical element of a circumstance of the offence, namely that the judicial power in relation to which the course of justice is affected is the judicial power of the Commonwealth). I also note that the Explanatory Memorandum in respect of the Law and Justice Amendment (Application of Criminal Code) Bill 2000 (Cth) states in respect of the then proposed amendment to s 42: 248. This physical element is an appropriate candidate for the application of absolute liability because in most applicable instances the person concerned will not possess any fault element concerning this physical element, and accordingly the offence would become almost unenforceable if the prosecution were obliged to demonstrate fault. Further, the person's degree of culpability under this offence is not materially affected by absence of the subject fault. The defence of mistake of fact should not be available to the defendant and accordingly absolute liability, and not strict liability, is the appropriate application…. 16 It is against this background that identification of the constituent elements of the first count of the indictment must be undertaken. 17 The first step involves a characterisation or identification of the physical and fault elements relevant to establishing guilt of the offence charged. The parties are agreed that the relevant fault elements are knowledge and intention. I have not invited submissions, and none have been advanced as to the significance of the fact that the fault element of intention relates to the physical element of destroying the data to prevent it being used in evidence. This is in recognition of the fact that there is no deficiency in the evidence in respect of these elements, given the content of the evidence of Mr Brooks as the person procured by the accused to destroy the data and the provisions of s 11.3 of the Criminal Code (Cth). 18 In so far as identifying which of the physical elements in s 4.1 of the Criminal Code (Cth) is the one to which the accused's knowledge must relate in a charge under s 39, the parties are agreed that it is that which is provided for in s 4.1(1)(c), namely 'a circumstance in which conduct or a result of conduct occurs' as distinct from conduct or a result of conduct itself. Section 5.3 of the Code provides that a person has knowledge of a circumstance if he or she is aware that it exists or will exist in the ordinary course of things. 19 While the parties are agreed on the way the Criminal Code (Cth) operates to identify and define the constituent elements of an offence against s.39 of the Crimes Act (Cth), they identify or characterise the particular circumstance to which the accused's knowledge must relate in different ways. It is the resolution of this dispute that determines the outcome of the application for a directed verdict on the first count. 20 The following words, italicised for emphasis, are crucial to the debate: On or about 30 January 2003 (the accused) knowing that Pan Pharmaceuticals Limited's computer data for the testing of a travel sickness medication known as Travacalm may be required in evidence in a judicial proceeding ……. 21 Section 31 of the Crimes Act (Cth) provides that in this Part, unless the contrary intention appears: judicial proceeding means a proceeding in or before a federal court, court exercising federal jurisdiction or court of a Territory, and includes a proceeding before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath. 22 The Crown submits that, to prove that the accused knew that the computer data may be required in evidence in a judicial proceeding, it is sufficient that he was aware that it was a reasonable possibility that proceedings would be brought in a Court, and that the data may be required as evidence in those proceedings, but that it need not prove that the accused knew that that the proceeding in which the data might be required was a judicial proceeding as defined, in effect, a Federal judicial proceeding. So ever long as there were, at the date the offence is alleged to have been committed, identifiable potential judicial proceedings wherein the data may have been be required as evidence, and that the accused was aware of the facts that would in fact support a cause of action in those judicial proceedings when he procured Mr Brooks to destroy the data, that, according to the Crown, is sufficient for the matter to be left to the jury. 23 In a written submission Mr Robberds QC expressed it as follows: If the accused knew that: the data may be required in evidence (i) in litigation (ii) where the consumers sued Pan (iii) for injuries suffered because of a defect in the Travacalm tablets (iv) manufactured by Pan (v) (i.e. the accused knew each of those 5 facts) then he knew that the data may be required in evidence in a judicial proceeding as defined in section 31 of the Crimes Act. And the reason he knew that fact is because that litigation is a proceeding based on section 75 AD of the Trade Practices Act which is a proceeding that could be brought before a court exercising federal jurisdiction. (my underlining).

[20]

29 This same submission was advanced in proceedings brought by the accused pursuant to the provisions of s 5F of the Criminal Appeal Act 1912 in respect of rulings made by Sorby DCJ when the matter was before his Honour for trial in the District Court in November 2006 and was rejected. In dealing with that argument McClellan CJ at CL said: The applicant submitted that before the indictment could be made good and the prosecution succeed, the Crown must identify a particular judicial proceeding, which must be specified. In the alternative, it is submitted that before it will be adequately particularised, the Crown must identify a particular Federal proceeding in respect of which it is said that the applicant destroyed the relevant item, having the intent to prevent it from being used in evidence in those identified proceedings. As presently advised, I do not accept that submission. It seems to me, that the section is directed at ensuring that relevant items are not destroyed or otherwise dealt with in the manner prohibited by the section at any time when the person effecting the relevant destruction or dealing may reasonably have in contemplation that a judicial proceeding may take place in the future, in which the items may be required in evidence. The section operates so that a person commits an offence if they effect the relevant destruction or other act at a time when there may be a reasonable possibility of judicial proceedings, although the particular proceedings may not at that time be capable of being identified. If the section was to operate in the way the applicant suggested, it would have a very narrow effect. Indeed, it would operate to encourage the destruction of items at an early date being a point in time where a person may have in mind that judicial proceedings may take place, but because those proceedings have either not commenced or cannot, with particularity, be identified at that point in time, an offence is not committed. It would seem to me that this construction of this section is wholly inconsistent with the policy which lies behind it. ( Selim v Regina [2006] NSWCCA 378 at 7-8). (emphasis added see para [27])

[21]

30 I regard myself as bound by the decision of this Court in the 5F proceedings and, consistent with so holding, I am satisfied that the Crown does not have to establish that judicial proceedings were on foot or imminent in order for a case to be left to the jury. It is sufficient in the present case that the Crown establish that, at the time when the instruction to destroy the data was given by him, the accused was aware, in the sense that he had in reasonable contemplation, that there was a possibility of judicial proceedings being initiated in the future. 31 In the course of the argument before me Mr Byrne submitted that in that part of the judgment that I have underlined in the extract above, his Honour has misstated the requisite fault element of knowledge to something that approximates recklessness and that for that reason the decision is distinguishable, or that at least I should not regard myself as bound to follow it. I do not accept this submission. It is clear when regard is had to the paragraph that immediately follows that part of the judgment extracted, and the fact that the second ground of the application for leave expressly referred to it, that his Honour was mindful of the fact that knowledge was the requisite fault element to which the circumstance "may be required in a judicial proceeding" related. It is also clear that the Court was of the view that the question of how the accused's knowledge that the data may be required in a judicial proceedings should be construed was premature as the learned trial judge had not at that time formulated his directions. I understand that the construction for which the Crown contends in the application before me was the way in which Sorby DCJ ultimately directed the jury, but that no point was taken in that trial that the construction was wrong or that there was an absence of evidence that the accused knew, in the way provided for in s 5.3 of the Criminal Code (Cth), that the proceedings were of the defined kind.

[23]

33 In The Queen v Lavender (2005) 222 CLR 67 Kirby J at [88]-[95] made the following observations when considering whether the rule of strict interpretation was of assistance in construing s 18 of the Crimes Act 1900 (NSW). At paragraph [93] his honour cites Beckwith as an authority for the principle that the rule is a one of last resort. [88] In the past, including in this Court, it has been conventional to say that, where one has been left in real doubt as to the meaning of a penal provision, that provision will be construed strictly and in favour of the person potentially affected by the provision. This rule was originally conceived in the seventeenth century as a means of mitigating the harshness of penal legislation, breach of which often attracted the death penalty. Since that time, the rule has been transplanted and applied in various other legislative contexts, such as legislation purporting to impose taxation, or to interfere with the enjoyment of, or to take away rights to, private property. [89] The rule was conventionally justified on several grounds. First, it was suggested that because of the inequality between the resources of the state and accused persons, the rule played an important function in levelling the field of combat. In this sense, the rule was closely related to principles that are designed, among other things, to achieve an equilibrium between the state and accused persons, such as the presumption of innocence, the "right to silence", the requirement that the prosecution prove the elements of an offence to the criminal standard of proof and the common law requirement that jury verdicts be unanimous. [90] Secondly, it was sometimes asserted that the rule reflected the ideal that it is unfair to convict a person unless they have had fair warning of the reach of the criminal law concerned. This argument was explained by Holmes J delivering the opinion of the Court in McBoyle v United States of America . "[I]t is reasonable that a fair warning should be given to the world ... of what the law intends to do if a certain line is passed". In this respect, the rule of strict construction was closely allied with the presumption that Parliament did not intend statutes creating liabilities to have retrospective operation. [91] This second justification has been criticised on the basis that "[t]hose who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in". However, such an argument, if accepted, could condone careless drafting practices. Because the criminal law is the most coercive instrument which the state possesses and because its application has potential implications for the loss of personal liberty, the legislature would normally be obliged to spell out with sufficient clarity the conduct that attracts criminal liability. [92] Thirdly, the rule of strict interpretation has sometimes been justified as upholding the separation of the respective roles of the legislature and the judiciary in determining the content of the criminal law. Courts have now relinquished the power to create new categories of criminal offences. Interpreting penal statues narrowly preserves this power exclusively for the legislature; but on terms of fairness to potential accused. [93] Confinement of the rule to a last resort : In recent times the rule of strict interpretation has "lost much of its importance", and is now generally regarded as a rule of "last resort". It comes into operation when the normal principles of interpretation have "run out", if "all other indicia [have] failed" to provide guidance. It applies "if [there is] genuine doubt as to the intention of the legislature and if there are no considerations indicating the desirability of a wide interpretation of the statute". [94] The ordinary rules of construction are now first applied, including in the ascertainment of the meaning of penal and taxing legislation. In such categories, as much as anywhere else, it is the duty of a court to ascertain, and give effect to, the purpose of the legislature as expressed in the language enacted by Parliament. To some extent the demise in the attractiveness of the former rule of construction has followed the recognition by courts of the legitimacy of modern Parliaments, elected as they now are by universal suffrage. Artificial categories and exceptions are now less in favour than they formerly were. Nevertheless, somewhat like the contra proferentem rule (the occasionally useful principle of construction of insurance and like documents) the principle suggesting a stricter approach to the interpretation of penal legislation may sometimes prove useful when ambiguity seems intractable. [95] In the present case, a strict approach to interpretation of the contested provisions of the Crimes Act is of limited use. This is so because it is clear that Parliament provided for the offences of murder and of manslaughter and attached penal consequences to conviction. The debate about the meaning of s 18 of the Crimes Act is not advanced very far by incantations about the penal character of such a provision. This is especially so when the history of the offence of homicide is remembered, including the confusion and inconsistencies in that history, and the fact that an offence of manslaughter of broad ambit was deliberately preserved. Disputes over the detailed elements of that crime are unlikely to be resolved at this level of generality. Nevertheless, to the extent that the principle governing the interpretation of ambiguous provisions of penal statutes is available, the respondent invoked it to support the interpretation favoured by the majority in the Court of Criminal Appeal, pursuant to which he had been acquitted. So it is a rule to be kept in mind - but probably at the back of the mind leaving more pressing arguments to command the foreground. (Footnotes omitted)

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