The Criminal Code Issue
120 I have set out above the statutory provisions, and her Honour's analysis thereof, on the basis of which she determined that, as a matter of interpretation, it was necessary for the Crown to prove that the Respondent knew the destroyed documentation was to be used in evidence in a judicial proceeding which bore the particular characteristic of a federal proceeding. I have also set out at par [19] above the Appellant's contentions in this Court with respect to the interpretation of s39 of the Crimes Act, in the light of the provisions of the Criminal Code.
121 As appears from the Appellant's contentions, it accepts that the element of the offence requiring that the proceedings have the particular characteristic of a federal proceeding has to be established by the prosecution. However, it submits it is a question of law for the trial judge and not a question of fact for the jury. Accordingly, the Appellant contends, the only issue for the jury is whether or not an accused knows that the document said to have been destroyed may be required in evidence in litigation. It is not for the jury to determine whether or not the litigation involved a judicial proceeding with the characteristic of a federal proceeding, including with respect to the fault element.
122 The determination of whether an element of an offence constitutes a question of law or a question of fact sometimes raises difficult issues. (See e.g. R v Petroulias (2005) 62 NSWLR 663 esp at [12]-[15] and [123]-[132] and Sood v R [2006] NSWCCA 114 at [30], [138] and [132]-[134].) Such difficulties were not considered in the submissions to this Court.
123 The Appellant referred to Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395, which affirmed the long established proposition that the meaning of a technical legal term is a question of law. Although the references to "a federal court" or the "court of a Territory" in s31 of the Crimes Act may not be such a term, the relevant reference to "a court exercising federal jurisdiction" is a highly technical legal term.
124 The issue must be approached, as Fullerton J did, from the particular perspective of the interpretation of the Criminal Code.
125 By force of s3.1(1) of the Criminal Code, the terminology of s39 of the Crimes Act, as expanded by the definition in s31 of that Act, must be divided into "physical elements" and "fault elements". In the present case, the physical element of "a judicial proceeding", and the particular character of such proceeding as a federal proceeding, constitute a "circumstance in which conduct" i.e. the alleged involvement in the destruction of information, occurred. (See s4.1(1)(c) of the Code.)
126 In its submissions to this Court the Appellant sought to draw a distinction between different kinds of elements of an offence. It invoked a distinction between "substantive" and "definitional" characteristics of a physical element of an offence, suggested by the author of a text on the Code. (See Stephen Odgers Principles of Federal Criminal Law, Law Book Co, Sydney, (2007) at p22 par 4.1.390.) It also invoked a similar distinction, drawn by the author of another text, between "facts" and "statutory references or designations". (See Attorney-General's Department The Commonwealth Criminal Code: A Guide for Practitioners, Canberra, March 2002, p119.)
127 I do not think it is open, when construing a Code, to decide that there are elements of an offence that are merely "definitional" or "referential" in such manner as to permit the words used in the formulation of the offence to be set aside. The very breadth of the definition of "physical element", encompassing as it does anything capable of answering the description of a "circumstance", indicates that all of the words of a statutory offence to which the Criminal Code applies must be given force and effect.
128 Accordingly, in the present case the characterisation of the proceedings as 'federal' must be accepted to be either a component part of the single circumstance of judicial proceeding or a separate circumstance. In either event, the issue has to be determined as to whether or not the fault element of knowledge expressed in s39 applies to that circumstance.
129 A Commonwealth offence to which the Criminal Code applies must, by reason of the nature of the Code, be approached on the basis that it comprehensively states each of the elements of a criminal offence. That is the central purpose of adopting a Code. The Criminal Code assumes that it is apparent on the face of the offence, as interpreted in the light of the Criminal Code, precisely what are the physical elements of an offence and to precisely which of those physical elements a fault element, if any, attaches and what that fault element is.
130 As I have noted above, s3.1(2) of the Criminal Code provides that the formulation of an offence may provide that there is no fault element for one or more physical elements. Any such provision must, in my opinion, be express and clear on the face of the statute. Otherwise the default fault element under s5.6 will apply. That was not done here.
131 Furthermore, a similar result could have been achieved by providing in the offence, again expressly, that the offence was one of absolute liability, at least with respect to the particular physical element of the offence constituted by the federal character of the requisite proceedings, for which express provision is made in cl 6.2(2) of the Criminal Code. Again, no such provision was made.
132 In 2001 the Parliament of the Commonwealth enacted the Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001 ("the 2001 Amendment Act") which reviewed the full range of Commonwealth legislation creating criminal offences and applied the general provisions of the Criminal Code to all of those offences. The 2001 Amendment Act bears on its face a lengthy process of detailed consideration, section by section, of each Commonwealth offence creating provision, with a view to determining precisely how the particular requirements of the Code should be adapted to each such offence. Schedule 10 of the 2001 Amendment Act was concerned with the Crimes Act 1914.
133 The particular provisions of Pt 3 of the Crimes Act concerned with "Offences Relating to the Administration of Justice", in which both s31 and s39 appear, were considered section by section in cl 37 to cl 59 of Sch 10 of the 2001 Amendment Act. In some sections the words of pre-existing offences expressed in terms of "knowingly" or "wilfully" were replaced by the word "intentionally". Furthermore, attention was given to the standard of liability required. Accordingly, the offence of giving false testimony with respect to a material matter, created by s35, was clarified by the insertion of an express s35(1)(A) which provides that strict liability applied to the physical element of circumstance constituted by the materiality of the matter.
134 This Court has not received detailed submissions on the application to the other sections of the Crimes Act to which resolution of the issue now before the Court will also necessarily apply i.e. s35 to s40 inclusive. These involve the fault element of intention (e.g. s35, s36, s38 and s40), often with respect to judicial proceedings that are already underway. The purpose of Pt 3 of the Crimes Act is to protect the administration of justice with respect to the exercise of the judicial power of the Commonwealth by any court invested with federal jurisdiction and thereby to maintain the integrity of the administration of justice in that respect.
135 Of particular significance for present purposes is the amendment made in 2001 with respect to the offence of conspiracy to pervert the course of justice. That offence was expressed in the following terms:
"42(1) Any person who conspires with another to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an indictable offence."
136 The amendment in 2001 added the following subsection:
"42(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the judicial power is of the Commonwealth."
137 An identical amendment was made, by the insertion of s43(2) in the same terms, with respect to the pre-existing offence in s43(1) concerning an attempt to pervert the course of justice.
138 It is clear, by the insertion of both s42(2) and s43(2), that the drafter of the 2001 Amendment Act had carefully considered the interconnection between the physical element constituted by the "circumstance" of "judicial power" and the fault element to be attached to that particular physical element.
139 The drafter of the amendments either did not accept or, acted out of an abundance of caution, so as to ensure that, in substance, no fault element attached to the physical element constituted by the fact that judicial power must be that of the Commonwealth. Fullerton J was correct to identify such express provision as making it more difficult for the Court to accept the Appellant's submission that a similar result should ensue as a matter of interpretation for the whole group of immediately preceding provisions from s35 to s40 including, relevantly for present purposes, s39.
140 Whether by oversight or otherwise, no such specific provision was inserted with respect to the federal nature of the concept of "judicial proceeding", established by the definition in s31, and which is terminology that applies to the prohibition on giving false testimony in s35, the prohibition on fabrication of evidence in s36, the prohibition of intimidation of witnesses in s36A, the prohibition on corruption of witnesses in s37, the prohibition on deception of witnesses in s38, the prohibition on destruction of evidence in s39 and the prohibition on preventing witnesses from attending court in s40.
141 The Appellant submitted that the 2001 legislation, which applied the Criminal Code to the relevant Crimes Act provisions did not intend to alter the operation of s39 from its prior operation at common law. The Appellant relied on express statements by the Minister in the Second Reading Speech and in the Explanatory Memorandum, asserting that no change was intended. Such assertions are rarely useful and often have been rejected in the course of interpretation by the courts.
142 The task of the courts is to interpret the words used by the Parliament. It is not to divine the intent of the Parliament. (See State v Zuma (1995) (4) BCLR 401 at 402; (1995) 2 SA 642; Matadean v Pointu [1999] 1 AC 98 at 108; R v PLV (2001) 51 NSWLR 736 at [82]; Pinder v The Queen [2003] 1 AC 620.) The distinction between interpretation and divination is an important one. The courts must determine what Parliament meant by the words it used. The courts do not determine what Parliament intended to say. (See R v Bolton ex parte Beane (1987) 162 CLR 514 at 518; Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 at 459; Wik People v Queensland (1996) 187 CLR 1 at 168-169; R v Young (1999) 46 NSWLR 681 at [5]; Dossett v TKJ Nominees Pty Limited (2003) 218 CLR 1 at [10].) At times that will require the court to refuse to implement an express statement as to what the Parliamentary intention is. (As in R v Bolton ex parte Beane supra.)
143 Statements of the character that the drafter of the legislation did not intend to change the prior operation of the law are rarely, if ever, useful, let alone entitled to significant weight. Such an assertion makes two assumptions. First, that the author knows completely and precisely how the previous provision has been and will be applied. Secondly, that the author has stated the new provision with indisputable comprehensibility. Each assumption reflects a conceit to which drafters of texts are prone when appraising their own work. Each assumption is rarely, let alone generally, applicable.
144 In a context such as the present, where a comprehensive Code is being grafted onto pre-existing legislation, I find these statements of no use whatsoever for the purpose of interpretation. They should be regarded as aspirational. They may reflect the object of the detailed attention that had been given to every offence and its possible interconnection with the structure of the Code in the process of drafting the 2001 Amendment Act. Whether that aspiration was achieved remains a matter for interpretation.
145 Fundamental aspects of the law have been altered by the Criminal Code in substantial and indeed critical matters, by the replacement of a body of nuanced case law, which never purported to be comprehensive, with the comparative rigidity of a set of interconnecting verbal formulae which do purport to be comprehensive and which involve the application of a series of cascading provisions, including definitional provisions, expressed in language intended to be capable of only one meaning, which meaning does not necessarily reflect ordinary usage.
146 Reference to prior case law concerning the element of intent for particular criminal offences is, in my opinion, almost always likely to be a distraction. The changes in the fault requirements implemented by the Criminal Code, compared with the former requirements of mens rea at common law, are of so fundamental a character that, where one is concerned with fault, it is almost certainly futile to seek to determine what the position was at common law.
147 The Appellant contended that, prior to the enactment of the Criminal Code, the prosecution would not have had to establish that the accused knew that the judicial proceedings bore the character of a federal judicial proceeding. It appears that there have only ever been two prior prosecutions under s39 and it was not suggested that this issue arose. There is no adequate basis for a conclusion that no change in prior law was intended in this specific respect.
148 The Appellant may well be correct that the classification of the proceedings as a 'federal proceeding' would have raised a question of law for the judge and that the mens rea of the offence at common law did not require proof of knowledge of that characteristic. Even if correct, and it probably is, the proposition must now find a footing in the language of the Code.
149 The general approach to interpretation of the Code is well established. (See Bank of England v Vagliano Bros [1891] AC 107 esp at 144-145; Brennan v The King (1936) 55 CLR 253 esp at 263; Robinson v Canadian Pacific Railway Co [1892] AC 481 at 481-487; Vallance v The Queen (1961) 108 CLR 56 at 74-76; R v Barlow (1997) 188 CLR 1 esp at 18-19 and 31-32.) There may be occasions on which it is appropriate to refer to the common law, e.g. where the Code employs a technical legal term or where an interpretation is well established or in the case of patent ambiguity. (See e.g. Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. (1974) 134 CLR 1 at 22; Stuart v The Queen (1974) 134 CLR 426 at 437; Lee v R [2007] NSWCCA 71 at [19]-[26].)
150 When interpreting a Code all of the principles of statutory interpretation are applicable. The language used must be construed in its context. The fact that the Code creates criminal offences will often be determinative e.g. to decide that references to reasonable care import a standard of criminal negligence. This may be a specific example of patent ambiguity in a Code, arising when the words are construed, as they must be, in their context in the first instance and not merely after some ambiguity is discerned in the words of the specific offence. (CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Project Blue Sky supra at [69].)
151 In the present case there is language with a technical legal meaning i.e. "federal jurisdiction". However, there is no such language, nor any patent ambiguity, with respect to the fault element which must be found by the tribunal of fact to attach to the element so identified.
152 No provision of the Code states that a physical element which is a question of law for the judge cannot have attached to it a fault element which the jury must decide. The Code makes no direct distinction between questions of law and questions of fact. It does, however, make express provision for decoupling a specific physical element, relevantly a question of law, from any fault element. This can be done by either providing that no fault element applies to that physical element (under s3.1(2)) or by specifying that strict or absolute liability applies to the offence (under s6.1 or s6.2). Neither was done here.
153 The only foothold in the Code which the Appellant was able to invoke in the present case was s9.3, which it submitted, reflects the common law principle that it was not necessary to prove that a person had knowledge of the law. Nevertheless, it is also the case at common law that ignorance of the law may make it difficult for the prosecution to establish fault.
154 In my opinion, the Appellant's reliance on s9.3 was misplaced. There is a distinction between knowing that proceedings have a federal character and knowing the terms of the definition in s31. Knowledge that a matter has a legal character is not equivalent to knowledge of the law.
155 Furthermore, section 9.3(1), set out above, is permissive in its terms: "A person can be criminally responsible …". It extends, relevantly, to the "content of an Act that … affects the … operation of the offence". Section 9.3(2) states, in terms, that "a person is not criminally responsible" if either the Act provides to the contrary or the ignorance "negates a fault element that applies to a physical element".
156 In the present case, it appears to me that s39 and s31 of the Crimes Act provide to the contrary, probably expressly and, if not, then impliedly.
157 In any event, s9.3(2)(b) requires the court to determine what "fault element … applies to the physical element" being, relevantly, the federal character of the affected proceedings. That requires the Court to interpret s39 and s31 of the Crimes Act. The very circularity prevents s9.3 being applied as a basis for removing the fault element which attaches to a legal physical element from the jury, if the proper interpretation of the offence creating provision otherwise does attach it.
158 No doubt this interpretation will make the offence more difficult to prove. However, as Fullerton J concluded, the language is intractable. The structure of the offence creating provision does not permit separation of the federal character of the judicial proceeding from its character as a judicial proceeding with respect to the linkage to the reference to 'knowledge'.
159 For the above reasons, even if I had been of a different opinion on the issue of retrospectivity, I would have dismissed the appeal from Fullerton J.