Regina v JS

CATCHWORDS: Constitutional law - Operation and effect of the Commonwealth Constitution - Trial by jury - Whether finality of a verdict of acquittal is an essential characteristic of trial by jury - Double jeopardy - s 80 The Constitution - Constitutional law - Quasi-constitutional character of Judiciary Act 1903 - Purpose of Judiciary Act 1903 - s 68(2) Judiciary Act 1903 - Criminal law - Appeal & New Trial - Appeal against acquittal - Crown's inability to appeal against an acquittal a fundamental common law principle - Retrospectivity - s 107 Crimes (Appeal and Review) Act 2001 - Criminal law - Jurisdiction, practice and procedure - Notice of Appeal - Validity under s 107(3) Crimes (Appeal and Review) Act 2001 - Criminal law - Elements of statutory scheme - Whether meaning of a technical legal term is a question of law - Meaning of "federal judicial proceeding" - Meaning of "question of law alone" - s 31 Crimes Act 1914 (Cth) - Criminal law - Particular offences - Offences relating to the administration of justice - Connection between federal character of the judicial proceeding and "knowledge" - s 39 Crimes Act 1914 (Cth) - Statutes - Acts of Parliament - Interpretation - Construction, particular classes of statute - Codifying Statutes - Reference to the common law - Statutes - Acts of Parliament - Interpretation - Construction, particular classes of statute - Penal Statutes - Ambiguity and general words - Retrospective operation - Statutes - Acts of Parliament - Interpretation - Construction, particular classes of statute - Penal Statutes - General principles - Clear statement principle - WORDS AND PHRASES - "question of law alone" and "federal judicial proceeding"

The Constitution (Cth), s 73, 80 Crimes Act 1914 (Cth), s 31, 35, 36, 37, 38, 39, 40, 42(2), 43(2) Crimes (Appeal and Review) Act 2001 (NSW), s 99(3), 107, 107(1), 107(2), 107(3), 107(5), 107(8), 111 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Pt 8 Criminal Appeal Act 1912, s 5F Criminal Code Act 1995 (Cth), s 3.1, 3.2, 4.1, 5.1, 5.3, 5.6, 6.2, 9.3 Criminal Code (Tas) Criminal Procedure Act 1986, s 128(2) Federal Court of Australia Act (1976) Judiciary Act 1903 (Cth), s 68(2) LEGISLATION CITED: Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001, Schedule 10 Attorney-General's Department, The Commonwealth Criminal Code: A Guide for Practitioners, Canberra, 2002 Friedland M L, Double Jeopardy, Oxford Clarendon Press, 1969 Halsbury's Laws of England (4th ed) reissue vol 8(2) 1996 Odgers S, Principles of Federal Criminal Law, Sydney, Law Book Co, 2007 Pattenden R, English Criminal Appeals 1844-1994, Oxford Clarendon Press, 1996 Quick and Garran, Annotated Constitution of the Australian Commonwealth, 1995 Scott A W, "Trial by Jury and the Reform of Civil Procedure" (1918) 31 Harvard Law Review 669 Spigelman J J, "The Principle of Legality and the Clear Statement Principle" (2005) 79 ALJ 769 Williams G, Criminal Law: The General Part, London, Stephen & Sons, 1953 Williams G, Criminal Law: The General Part (2nd ed) London, Stephen & Sons, 1961

Al-Kateb v Godwin (2004) 219 CLR 562 Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 Attorney-General (WA) v Marquet (2003) 217 CLR 545 Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 Bagshaw v Carter [2006] NSWCA 113 Bank of England v Vagliano Bros [1891] AC 107 Brennan v The King (1936) 55 CLR 253 Bropho v Western Australia (1990) 171 CLR 1 Brown v The Queen (1985) 160 CLR 171 Brownlee v The Queen (2001) 207 CLR 278 Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410 Byrnes v The Queen (1999) 199 CLR 1 Capital Traction Company v Hof (1899) 174 US 1 Cheatle v The Queen (1993) 177 CLR 541 Chidiac v The Queen (1994) 171 CLR 432 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Coco v The Queen (1994) 179 CLR 427 Conway v The Queen (2002) 209 CLR 203 Cornwell v The Queen (2007) 81 ALJR 840 Crane v Director of Public Prosecutions [1921] 2 AC 299 Daniels Corporation International Pty Limited v Australian Competition & Consumer Commission (2002) 213 CLR 543 Davern v Messel (1984) 155 CLR 21 Dossett v TKJ Nominees Pty Limited (2003) 218 CLR 1 Durham Holdings Pty Limited v New South Wales (1999) 47 NSWLR 340 Ealing London Borough Council v Race Relations Board [1972] AC 342 Ex parte Blacklock (1974) 131 CLR 338 Kepner v United States (1904) 195 US 100 Lauri v Renad (1892) 3 Ch 402 Lee v R [2007] NSWCCA 71 Leeth v The Commonwealth (1992) 174 CLR 455 M v The Queen (1994) 181 CLR 487 Matadean v Pointu [1999] 1 AC 98 Maxwell v Murphy (1957) 96 CLR 261 Newell v The King (1936) 55 CLR 707 Ng v The Queen (2003) 217 CLR 521 Pinder v The Queen [2003] 1 AC 620 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Putland v The Queen (2004) 218 CLR 174 Potter v Minahan (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 CASES CITED: R v Barlow (1997) 188 CLR 1 R v Bolton ex parte Beane (1987) 162 CLR 514 R v Cheng (1999) 48 NSWLR 616 R v Hutchins (1880) 5 QBD 353 R v Kim (1993) 65 A Crim R 278 R v Lethlean (1995) 83 A Crim R 197 R v Morgentaler (1985) 22 CCC (3d) 353 R v Petroulias (2005) 62 NSWLR 663 R v PLV (2001) 51 NSWLR 736 R v Secretary of State to the Home Department ex parte Pierson [1998] AC 539 R v Secretary of State for Home Department ex parte Simms [2002] 2 AC 115 R v Sender (1982) 7 A Crim R 344 R v Sung Bo Kim (1993) 65 A Crim R 278 R v Walsh (1984) 3 NSWLR 584 R v Young (1999) 46 NSWLR 681 Reid v Reid (1886) 31 Ch D 402 Robinson v Canadian Pacific Railway Co [1892] AC 481 Rodway v The Queen (1990) 169 CLR 515 Rohde v Director of Public Prosecutions (1986) 161 CLR 119 Seagg v The King (1932) 48 CLR 251 Sood v R [2006] NSWCCA 114 State v Zuma (1995) 2 SA 642 State of Victoria v Bacon (1998) 4 VR 269 State of Victoria v Robertson [2000] 1 VR 465 Stuart v The Queen (1974) 134 CLR 426 Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. (1974) 134 CLR 1 Swansson v The Queen (2007) 168 A Crim R 263 The King v Snow (1915) 20 CLR 315 The King v Weaver (1931) 45 CLR 321 The Queen v Carroll (2002) 213 CLR 635 The Queen v Gee (2003) 212 CLR 230 The Queen v Kingswell (1985) 159 CLR 264 The Queen v Murphy (1985) 158 CLR 596 The Queen v Peel (1971) 125 CLR 447 The Queen v Williams (No 2) (1934) 50 CLR 551 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR United States v Ball (1896) 163 US 662 United States v Sanges (1892) 144 US 310 United States v Wilson (1975) 420 US 332 Vallance v The Queen (1961) 108 CLR 56 Wik People v Queensland (1996) 187 CLR 1 Williams v The Queen (1986) 161 CLR 278 Zainal bin Hashim v Government of Malaysia [1980] AC 73

Regina (Commonwealth DPP) (Appellant) PARTIES: JS (Respondent) Commonwealth Attorney-General (Intervenor)

L Robberds QC, C O'Donnell (Appellant) COUNSEL: J Gleeson SC, P Kulevski; P Byrne SC, G Bashir, S Buchen (Respondent) D Bennett QC, G Aiken, K Morgan (Intervenor)

J Lehn, Commonwealth Director of Public Prosecutions (Appellant) SOLICITORS: A Thorpe, McLachlan Thorpe Partners (Respondent) T John, Australian Government Solicitors (Intervener)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2007/3308

SPIGELMAN CJ MASON P McCLELLAN CJ at CL HIDDEN J HOWIE J

The Respondent was tried for two indictable offences under the Crimes Act 1914 (Cth) related to the alleged intentional destruction of computer data that may have been required in evidence in a judicial proceeding.

At the end of the trial, the trial judge, Fullerton J, directed the jury to return a verdict of acquittal. In doing so, the trial judge accepted the Respondent's submissions that s39 of the Crimes Act requires the prosecution to prove an accused knew that the proceedings in which the evidence may be required were federal proceedings. This finding turned on the definition of "judicial proceeding" in s31 of the Crimes Act, read in the light of the provisions of the Criminal Code . As the Crown's case contained no evidence that would satisfy the requirement, a directed acquittal was ordered.

The Crown appealed to the NSW Court of Criminal Appeal. A right on the part of the Crown to appeal from an acquittal of a criminal charge in certain circumstances, including a directed acquittal, was created by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006, which inserted s107 into the Crimes (Appeal and Review) Act 2001.

The Respondent raised a number of jurisdictional issues, challenging the capacity of the NSW Court of Criminal Appeal to hear the appeal.

Held (dismissing the appeal): The retrospectivity issue with respect to s107 of the Crimes (Appeal and Review) Act 2001

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 The inability of the Crown to appeal against an acquittal is a fundamental principle of the criminal law. [26]-[30], [162], [194], [195], [196] The King v Snow (1915) 20 CLR 315; R v Lethlean (1995) 83 A Crim R 197; R v Cheng (1999) 48 NSWLR 616 referred to. [27]-[30]

2 A statute will not be interpreted to overturn a fundamental principle in the absence of a clear statement that that was Parliament's intention. [31]-[32], [162], [194], [195], [196] Potter v Minahan (1908) 7 CLR 277; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Daniels Corporation International Pty Limited v Australian Competition & Consumer Commission (2002) 213 CLR 543; Durham Holdings Pty Limited v New South Wales (1999) 47 NSWLR 340 referred to.

3 The interpretative principle that Parliament did not intend a statute to operate retrospectively in the absence of a clear statement of such intention is of particular strength in the administration of criminal justice. [33], [46], [162], [194], [195], [196] Maxwell v Murphy (1957) 96 CLR 261; Rodway v The Queen (1990) 169 CLR 515; Newell v The King (1936) 55 CLR 707 considered. R v Secretary of State to the Home Department ex parte Pierson [1998] AC 539; R v Secretary of State for Home Department ex parte Simms [2002] 2 AC 115; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; Al-Kateb v Godwin (2004) 219 CLR 562; Daniels Corporation International Pty Limited v Australian Competition & Consumer Commission (2002) 213 CLR 543; Attorney-General (WA) v Marquet (2003) 217 CLR 545 referred to.

4 A statute will only be given retrospective operation to the extent necessitated by the words of a statute, but to no greater extent. [45], [162], [194], [195], [196] Reid v Reid (1886) 31 Ch D 402; Lauri v Renad (1892) 3 Ch 402; Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557 referred to.

5 Section 107 of the Crimes (Appeal and Review) Act 2001 has no application to the trial and acquittal of the Respondent because the section commenced operation after the institution of proceedings against him. [42]-[44], [48], [162], [194], [195], [196] Newell v The King (1936) 55 CLR 707; Cornwell v The Queen (2007) 81 ALJR 840 referred to.

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 The Respondent's contention that the Appellant failed to file a valid Notice of Appeal as provided for in s107(3) of the Crimes (Appeal and Review) Act 2001 should be rejected. [54], [162], [194], [195], [196]

2 In view of the express power to grant leave to appeal after the expiry of time, the Appellant's failure to identify matters that should have been identified in the Notice of Appeal did not render that Notice invalid. The Court's jurisdiction was appropriately invoked. There was no denial of procedural fairness, because the Respondent could not have been in doubt as to issues raised in the Appeal. [60], [64], [68], [162], [194], [195], [196] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Attorney-General (NSW) v World Best Holdings Ltd (2005) 63 NSWLR 557; R v Hutchins (1880) 5 QBD 353; State of Victoria v Bacon (1998) 4 VR 269 referred to.

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 Leave should be granted to the Appellant to amend its Notice of Appeal, but only with respect to proposed grounds 2 and 3.

2 The determinative step in the trial judge's reasoning was the interpretation of the statute, which involved a question of law alone. [70], [83], [162], [194], [195], [196] Williams v The Queen (1986) 161 CLR 278 at 287 distinguished.

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 The constitutional issue raised is whether or not the finality of a verdict of acquittal is an essential characteristic of trial by jury within the meaning of s80 of the Constitution . Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278; Ng v The Queen (2003) 217 CLR 521; The Queen v Kingswell (1985) 159 CLR 264 referred to.

2 This Court is bound to follow a decision of another intermediate appellate court unless satisfied that it is wrong. Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 applied.

3 There is a decision of the Tasmanian Court of Criminal Appeal precisely in point and the conclusion is open. The only directly relevant High Court authority is equally divided. The King v Snow (1915) 20 CLR 315 referred to; R v Sung Bo Kim (1993) 65 A Crim R 278 followed.

4 The Respondent's contention should be rejected. [92], [162], [194], [195], [196]

5 The appeal does not engage the body of case law that permits proceedings to be regarded as a nullity because of non-compliance with a fundamental aspect of the concept of trial on indictment. [165] Crane v Director of Public Prosecutions [1921] 2 AC 299; Swansson v The Queen (2007) 168 A Crim R 263 cited.

6 The principle that a jury verdict of acquittal was "final" is a principle of English common law that prevailed in the Australian colonies as at 1900. The finality principles, however, are located outside the constitutional guarantee of trial by jury and relate instead to principles of double jeopardy. [177]-[178], [180], [193] R v Sung Bo Kim (1993) 65 A Crim R 278 approved. Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 applied. Cheatle v The Queen (1993) 177 CLR 541; Brownlee v The Queen (2001) 207 CLR 278; Ng v The Queen (2003) 217 CLR 521; The King v Snow (1915) 20 CLR 315; R v Lethlean (1995) 83 A Crim R 197; The King v Weaver (1931) 45 CLR 321; Chidiac v The Queen (1994) 171 CLR 432; M v The Queen (1994) 181 CLR 487; R v Morgentaler (1985) 22 CCC (3d) 353; Brown v The Queen (1985) 160 CLR 171; Conway v The Queen (2002) 209 CLR 203 referred to. United States v Sanges (1892) 144 US 310; United States v Ball (1896) 163 US 662; United States v Wilson (1975) 420 US 332; Kepner v United States (1904) 195 US 100; Fong Foo v United States (1962) 369 US 141; The Queen v Carroll (2002) 213 CLR 635 discussed. Capital Traction Company v Hof (1899) 174 US 1 distinguished.

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 Section 68(2) of the Judiciary Act 1903 does pick up and apply the provisions of the Crimes (Appeal and Review) Act 2001 which permit appeals from an acquittal. [110], [162], [194], [195], [196]

2 The Judiciary Act is of a quasi-constitutional character. Its purpose of ensuring that accused persons in each State are, with defined exceptions, subject to the same incidents of a criminal trial for Commonwealth offences as for State offences is of overriding significance and displaces the application of other interpretative principles. [113], [115], [119], [162], [194], [195], [196] The Queen v Peel (1971) 125 CLR 447 applied. The King v Snow (1915) 20 CLR 315; The Queen v Williams (No 2) (1934) 50 CLR 551; Seagg v The King (1932) 48 CLR 251; Rohde v Director of Public Prosecutions (1986) 161 CLR 119; The Queen v Murphy (1985) 158 CLR 596; The Queen v Gee (2003) 212 CLR 230; Ex parte Blacklock (1974) 131 CLR 338; Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397; Leeth v The Commonwealth (1992) 174 CLR 455; Putland v The Queen (2004) 218 CLR 174; R v Cheng (1999) 48 NSWLR 616 referred to. Sung Bo Kim (1993) 65 A Crim R 278; R v Sender (1982) 7 A Crim R 344 approved.

3 The Court is, in any event, bound by the principle in Marlborough Gold Mines to follow the reasoning of the other intermediate appellate decisions. [118], [162], [194], [195], [196] Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 applied. Sung Bo Kim (1993) 65 A Crim R 278 ; R v Sender (1982) 7 A Crim R 344 followed. R v Walsh (1984) 3 NSWLR 584; Bagshaw v Carter [2006] NSWCA 113 referred to. R v Sender (1982) 7 A Crim R 344 doubted in part; Byrnes v The Queen (1999) 199 CLR 1 referred to.

(per Spigelman CJ, Mason P, McClellan CJ at CL, Hidden J and Howie J agreeing)

1 The federal character of the judicial proceeding, referred to in s39 of the Crimes Act and defined in s31 of that Act, cannot be separated from its character as a judicial proceeding with respect to the linkage to the reference to 'knowledge', and the fault element of the offence. It is necessary for the prosecution to prove an accused has knowledge that data could be used in a federal judicial proceeding. [156], [158], [162], [194], [195], [196] R v Petroulias (2005) 62 NSWLR 663; Sood v R [2006] NSWCCA 114; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; State v Zuma (1995) 2 SA 642; Matadean v Pointu (1999) 1 AC 98; R v PLV (2001) 51 NSWLR 736; Pinder v The Queen [2003] 1 AC 620; R v Bolton ex parte Beane (1987) 162 CLR 514; Byrne & Frew v Australian Airlines Limited (1995) 185 CLR 410; Wick People v Queensland (1996) 187 CLR 1; R v Young (1999) 46 NSWLR 681; Dossett v TKJ Nominees Pty Limited (2003) 218 CLR 1 referred to.

2 There may be occasions on which it is appropriate to refer to the common law when interpreting a code, e.g. where the Code employs a technical legal term, where an interpretation is well established or where there is patent ambiguity. [149], [162], [194], [195], [196] The Appellant's reliance on s9.3 of the Criminal Code was misplaced. [152]-[157] It is not appropriate when applying the Criminal Code to identify part of a "physical element" in an offence as merely "referential" or "definitional". [126]-[127] Observations on interpreting the Criminal Code. [129]-[131], [141]-[150] Bank of England v Vagliano Bros [1891] AC 107; Brennan v The King (1936) 55 CLR 253; Robinson v Canadian Pacific Railway Co [1892] AC 481; Vallance v The Queen (1961) 108 CLR 56; R v Barlow (1997) 188 CLR 1; Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. (1974) 134 CLR 1; Stuart v The Queen (1974) 134 CLR 426; Lee v R [2007] NSWCCA 71; Callaghan v The Queen (1952) 87 CLR 115; R v Scarth (1945) St R Qd 38; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to. IN THE COURT OF CRIMINAL APPEAL 2007/3308

SPIGELMAN CJ MASON P McCLELLAN CJ at CL HIDDEN J HOWIE J

Monday 10 September 2007 REGINA v JS Judgment 1 SPIGELMAN CJ: The Respondent stood trial on indictment for two charges, the first of which read as follows, with portions omitted for reasons I will explain below: "On or about 30 January 2003 at Sydney in the State of New South Wales, knowing that … computer data for the testing of … may be required in evidence in a judicial proceeding, did procure the conduct of another person, namely … to intentionally destroy or render said data illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence.

..." 2 The second count on the indictment alleged an attempt to commit the offence identified in the first count. 3 At the close of the Crown case her Honour Justice Fullerton directed a verdict with respect to both counts. There is no challenge to the directed verdict on the attempt count. 4 An appeal against an acquittal is permissible in certain circumstances, relevantly an acquittal by direction, under the Crimes (Appeal and Review) Act 2001 ("the Act"). Section 111 of that Act prohibits the publication of matters which may identify a person who has been acquitted. Although that section does not bind the Court, as judgments of the Court are available in electronic form and may be widely circulated, I have sought to preserve the Respondent's anonymity in this judgment. This has also required the deletion of certain references from the indictment and from the judgment of Justice Fullerton.

The Statutory Context 5 The issue comes before this Court by reason of the creation by statute of the right on the part of the Crown to appeal from an acquittal of a criminal charge as introduced in this State by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (the "2006 Amendment Act") which inserted Pt 8 "Acquittals" into the Act. The directly relevant section is s107 which provides: "107(1) This section applies to the acquittal of a person: (a) by a jury at the direction of the trial Judge, or (b) by a Judge of the Supreme Court or District Court in criminal proceedings for an indictable offence tried by the Judge without a jury, or (c) by the Supreme Court or the Land and Environment Court in its summary jurisdiction in any proceedings in which the Crown was a party. (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any such acquittal on any ground that involves a question of law alone. (3) An appeal may be made within 28 days after the acquittal or, with the leave of the Court of Criminal Appeal, may be made after that period. (4) The accused person is entitled to be present and heard at the appeal. However, the appeal can be determined even if the person is not present so long as the person has been given a reasonable opportunity to be present. (5) The Court of Criminal Appeal may affirm or quash the acquittal appealed against. (6) If the acquittal is quashed, the Court of Criminal Appeal may order a new trial in such manner as the Court thinks fit. For that purpose, the Court may (subject to the Bail Act 1978 ) order the detention or return to custody of the accused person in connection with the new trial. (7) If the acquittal is quashed, the Court of Criminal Appeal cannot proceed to convict or sentence the accused person for the offence charged nor direct the court conducting the new trial to do so. (8) This section does not apply to a person who was acquitted before the commencement of this section." 6 The offence alleged involved a contravention of s39 of the Crimes Act 1914 (Cth) which provides: "39 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." 7 Of central significance in this case is the fact that the words "a judicial proceeding" in s39 of the Crimes Act are the subject of specific definition in s31 of the Act as follows: "31 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." 8 The constituent elements of the offence must now be understood in accordance with the application to the s39 offence of the provisions of the Criminal Code Act 1995 (Cth) ("the Criminal Code"), which require a particular analysis, in accordance with the requirements of that Code. The relevant provisions are as follows: "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." 9 Section 4.1 identifies three matters capable of constituting a "physical element". The relevant matter is 4.1(1)(c) "a circumstance in which conduct … occurs". 10 Section 5.1 of the Criminal Code states: "5.1(1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence." 11 By reason of the express reference to knowledge in s39 of the Crimes Act, the relevant fault element for present purposes is "knowledge" which is defined in s5.3: "5.3 A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events." 12 It is pertinent also to note s5.6 which states: "5.6(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element." 13 The Appellant also relied on s9.3 of the Criminal Code which provides: "9.3(1) A person can be criminally responsible for an offence even if, at the time of the conduct constituting the offence, he or she is mistaken about, or ignorant of, the existence or content of an Act that directly or indirectly creates the offence or directly or indirectly affects the scope or operation of the offence. (2) Subsection (1) does not apply, and the person is not criminally responsible for the offence in those circumstances, if :

(a) the Act is expressly or implied to the contrary effect; or

(b) the ignorance or mistake negates a fault element that applies to a physical element of the offence."

The Judgment of Fullerton J 14 The critical matter in the submissions on behalf of the Respondent, upon which he was successful before Fullerton J, was the definition of "judicial proceedings" in s31 of the Crimes Act, which requires the relevant proceedings to be proceedings in a court exercising federal jurisdiction, a Federal court or a court of a Territory, to which it is convenient to refer hereafter as "federal proceedings". He submitted, successfully, that whatever the state of the evidence on the Crown case may be with respect to the Respondent's knowledge of judicial proceedings, a matter upon which other submissions were made, there was no evidence that he had any knowledge that such proceedings were federal proceedings. 15 Fullerton J set out the Crown submissions before her as follows: "[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 … 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 [the company] (iii) for injuries suffered because of a defect in the … (iv) manufactured by [the company] (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). On this construction, proof that the potential proceedings were Federal proceedings is an objective fact and not part of the circumstance to which the fault element relates. On this construction, the Crown is, in effect, either imposing absolute liability to proof of the fact of the identification of the proceedings as part of the physical element in circumstances where the Parliament has not made provision for it, or it is applying a gloss to the construction of the section by reading the composite phrase 'may be required in evidence in a judicial proceeding' in such a way as to separate 'judicial proceedings' from the preceding part of the composite phrase. [24] By contrast, the accused contends that on a proper construction of the section the Crown must prove that the accused knew that the data may be required in evidence in a Federal proceeding, that is the Crown must prove that the accused knew, in the sense that he was aware of the fact that the potential proceedings in which the data may be required as evidence were Federal judicial proceedings. [25] It is conceded by the Crown there is no evidence of this." 16 Fullerton J referred to a number of principles of the law of statutory interpretation and concluded: "[38] In my view, to read the section the way the Crown asks me to would be unreasonable and would fail to do credit to the actual words of the section. I note that the draftsperson provided neither punctuation or parentheses to separate out or signify a different reading of the composite clause "is or may be required in evidence in a judicial proceeding" . [39] The plain words of the section, and the declared operation of the Criminal Code (Cth) as provided for in the provisions of Chapter 2 to which I have referred, in my view require the prosecution to prove that an accused knew that the proceedings in which the evidence may be required were or are Federal judicial proceedings, even if the particular proceedings are not at the time of the destruction capable of being identified. [40] I am fortified in this conclusion by the fact that, in the comprehensive review of the many offences found across the body of Commonwealth statutes undertaken in 2000 and 2001, a review undertaken with a view to harmonising all offence creating and related provisions with the codified principles of criminal liability in Chapter 2 of the Criminal Code (Cth), the Parliament made no provision in s 39 for the physical circumstance of 'judicial proceeding' to be a matter of absolute liability or strict liability or otherwise a physical element requiring no fault element. By contrast, the Parliament has made express provision for physical elements or parts thereof to be matters of absolute or strict liability, and provided for no fault element in many offence-creating provisions of the Criminal Code (Cth) following the repeal of offences that had hitherto been located within the Crimes Act (Cth) (see for example ss131.1 and 132.1 under Part 7.2 of the Criminal Code (Cth). [41] Absolute liability in respect of one component of a physical element cannot be read into the s 39. Neither can a requirement that there be no fault element in respect of a physical element or a component of a physical element. The Criminal Code (Cth) implicitly forbids it. [42] In these circumstances, on a proper construction of the section, the Crown must prove that the accused knew that the data may be required in Federal judicial proceedings and there being no evidence that he was at any relevant time aware of that fact, a verdict of not guilty must be directed."

Issues on the Appeal 17 At par [16] above I have set out par [23] of the judgment of Fullerton J in which her Honour repeats the Crown's contention as to the interpretation of the offence under s39 of the Crimes Act, in the light of the provisions of the Criminal Code. The Appellant contends in this Court that her Honour erred in rejecting that submission, which was reformulated in the submissions to this Court. The basic issue on this appeal is whether Fullerton J was wrong in concluding that s39 requires the prosecution to prove an accused knew that the proceedings in which the evidence may be required were federal proceedings. 18 In submissions to this Court the Appellant contended for the following construction of s39: "The physical and fault elements of the offence in section 39 of the Crimes Act (and their connection) are more accurately stated as follows: Physical elements (i) conduct - destruction of book etc. (ii) the circumstances in which the conduct occurs - the book etc may be required in evidence in litigation (which are facts) - which litigation is a judicial proceeding as defined by section 31 (which is a question of law). Fault elements (a) knowledge that the book etc may be required in evidence in litigation (which are facts) - which litigation is a judicial proceeding as defined by section 31 (which is a question of law); (b) the destruction of the book etc is intentional; (c) intention to prevent the book etc being used in evidence. Fault elements (b) and (c) apply to physical element (i). Fault element (a) applies to physical element (ii)." 19 The Respondent contended that Fullerton J was correct in her interpretation. By way of Notice of Contention the Respondent raised four jurisdictional issues as follows: (i) Section 107 of the Crimes (Appeal and Review) Act 2001 has no application to the trial and acquittal of the Respondent because the section commenced operation after the commencement of the trial of the Respondent.

(ii) The appeal is unconstitutional because section 80 of the Commonwealth Constitution prevents the Crown from appealing against a verdict of acquittal by a jury in a federal criminal proceeding.

(iii) Section 68(2) of the Judiciary Act 1903 (Cth) does not apply to appeals against acquittal and hence does not confer jurisdiction on a state appellate court to hear an appeal brought under the provisions of a state law against the acquittal of a person in respect of an offence against a law of the Commonwealth.

(iv) The appeal should be regarded as being out of time because the Appellant failed to file a valid notice of appeal within the period prescribed by s 107(3) of the Crimes (Appeal and Review) Act 2001. 20 The Respondent also contended that the appeal involved a mixed question of fact and law and, accordingly, did not raise "a question of law alone" within the meaning of s107 of the Act. 21 Furthermore, the Respondent contended that this Court should not, in the circumstances of this case, exercise what it identified as the separate discretions created by the use of the word "may" in each of s107(5) and s107(6) i.e., respectively, a discretion to quash the acquittal and a discretion to order a new trial.

The Retrospectivity Issue 22 Section 107 of the Act, which permits an appeal against a directed verdict of acquittal, came into force on 15 December 2006. The Respondent was re-arraigned in the Supreme Court on 21 February 2007 and thereafter stood trial in this Court. This was in fact the third trial on this charge. 23 The original indictment was filed in the District Court and the Respondent was first arraigned at the time of his first trial in the District Court on 13 March 2006. He was arraigned again at the time of his second trial in the District Court on 6 November 2006. Pursuant to s128(2) of the Criminal Procedure Act 1986 and clause 14 of Practice Notice SC CL 2, permission was granted to proceed with the case in the Supreme Court. The matter was first mentioned in the Criminal List of this Court on 1 December 2006 and an indictment was filed in the Court at a mention of the proceedings on 8 December 2006. A further indictment providing particulars was filed on 19 February 2007 and the Respondent was arraigned on 21 February 2007. 24 In the materials before the Court are three indictments, dated 13 March 2006, 6 November 2006 and 21 February 2007. The first differs from the next two only in that it asserts the offence to have occurred on 31 January 2003, whereas the second and third indictments specify the date as 30 January 2003. That was an issue of significance for purposes not presently material. The third indictment adds particulars for the two counts. Save in these respects all three indictments are in the same terms alleging the same offence. 25 Although the date of the Respondent's re-arraignment in this Court was after the date of the coming into effect of the statute, the indictment was filed before that date and the proceedings were clearly a continuation of the earlier proceedings in the District Court. It was not suggested by the Crown in this Court that the date of the arraignment in this Court was determinative of the retrospectivity issue raised by the Respondent. The Crown's position in this respect was that the legislation should be interpreted as to applying to proceedings already commenced. 26 The introduction of Pt 8 of the Act, by the 2006 Amendment Act, recognises by its very title, in the parenthetic reference to "Double Jeopardy", and by its careful, precise and restricted identification of the circumstances in which an appeal against an acquittal is permissible, that the legislation was altering a fundamental principle of the criminal law. 27 The fundamental nature of the principle was expressed by Griffiths CJ in The King v Snow (1915) 20 CLR 315 at 322: "The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language." 28 In a joint judgment Gavin Duffy and Rich JJ similarly concluded at 364: "First, out of respect for life when all felonies were capital, and later, out of respect for character and reputation, the Courts resisted every attack on the inviolability of the verdict of 'not guilty' and that inviolability has remained part of the substantive law to the present day." 29 It is significant that in Snow the Court was concerned with the interpretation of s73 of the Commonwealth Constitution, with a view to determining whether or not the Parliament of the United Kingdom, when enacting the Constitution Act should be understood as subject to the principle of statutory interpretation applied expressly by Griffiths CJ. The other three members of the bench were not prepared to interpret the Constitutional provision in that manner. The fact that what was being interpreted was a Constitution, rather than an ordinary statute was of critical significance in their Honour's reasoning. (See esp at 333-334, 350-352 (per Isaacs J); 354-355 (per Higgins J); and 368-369 (per Powers J).) 30 It will be necessary to return to the constitutional position below. However, for the purpose of determining the retrospectivity issue, this Court should proceed on the well-established principle of the law of statutory interpretation that the New South Wales Parliament does not intend to modify fundamental principles or common law rights without a clear statement that it was doing so. This Court has applied this approach to the determination of whether or not an appeal could lie from a decision by a trial judge to direct a verdict of acquittal, on the basis that, in view of the strength of the presumption, Parliament did not intend the words "interlocutory judgment or order" in s5F of the Criminal Appeal Act 1912 to extend to such a decision. (See R v Lethlean (1995) 83 A Crim R 197 esp at 202-204; R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 esp at [19]-[29].) By reference to these cases, the drafter of the 2006 Amendment Act must have been well aware of the principle of the law of statutory interpretation that would be applied by the Courts to legislation of this specific character. 31 The relevant test of the precision with which the Parliament must indicate that it intends to overturn a fundamental common law principle has been variously expressed, including: · "Irresistible clearness" (Potter v Minahan (1908) 7 CLR 277 at 304); · "The clearest language" (R v Snow supra at 322); · "Unambiguously clear" (Bropho v Western Australia (1990) 171 CLR 1 at 17); · "Clearly manifested by unmistakeable and unambiguous language" (Coco v The Queen (1994) 179 CLR 427 at 437); · "Clear words or necessary implication" (Daniels Corporation International Pty Limited v Australian Competition & Consumer Commission (2002) 213 CLR 543 at [11]). 32 These formulations are equivalent. (See Durham Holdings Pty Limited v New South Wales [1999] NSWCA 324; 47 NSWLR 340 at 353 [44].) It is convenient to refer to them, for the purpose of the law of statutory interpretation, as the clear statement principle. (See J J Spigelman "The Principle of Legality and the Clear Statement Principle" (2005) 79 ALJ 769 at 779.) 33 This particular interpretive principle is reinforced by, and in the present case, overlaps with the application of another interpretive principle of particular strength in the context of the administration of criminal justice. This is the principle against the retrospective operation of a statute, to which the clear statement of principle also applies, again having been the subject of various equivalent formulations in cases in which a retrospectivity issue has arisen: · "Unless the intention appears with reasonable certainty" (Maxwell v Murphy (1957) 96 CLR 261 at 267); · "Unless the language of the statute expressly or by necessary implication requires such construction" (Rodway v The Queen (1990) 169 CLR 515 at 518); · "Unless a special intention appears" (Newell v The King (1936) 55 CLR 707 at 711). 34 Both of these interpretive principles should now be understood as specific examples of the unifying concept of the principle of legality. (See J J Spigelman "The Principle of Legality and the Clear Statement Principle" (2005) 79 ALJ 769 at 774-775.) 35 The concept of "the principle of legality" was reintroduced into contemporary discourse by Lord Steyn, being a term he found in the fourth edition of Halsbury's Laws of England. (See Halsbury's Laws of England (4th ed) reissue vol 8(2) (1996) par 6; R v Secretary of State to the Home Department ex parte Pierson [1998] AC 539 at 587.) However, fifty years ago Glanville Williams employed those very words as the translation of the principle of Roman Law expressed in the maxim nullum crimen nulla poena sine lege - there is no crime nor punishment except in accordance with law. He set out what remains the most comprehensive consideration of the principle of legality to the criminal law. (Glanville Williams, Criminal Law: The General Part, London, Stephen & Sons (1953) Ch 12.) Professor Williams specifically identified the principle of non-retroactivity of penal statutes as an example of the principle of legality. (See Glanville Williams, Criminal Law: The General Part (2nd ed) London, Stephen & Sons (1961) at pp579-581.) 36 As Lord Hoffman expressed the principle in R v Secretary of State for Home Department ex parte Simms [2002] 2 AC 115 at 131: "The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in a democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual." 37 This passage has been quoted with approval by both Gleeson CJ and Kirby P. (See Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [30]; Al-Kateb v Godwin (2004) 219 CLR 562 at [19], fn 11; Daniels Corp International supra at 582; Attorney-General (WA) v Marquet (2003) 217 CLR 545 at [180].) 38 To similar effect were the observations of Lord Simon of Glaisdale Ealing London Borough Council v Race Relations Board [1972] AC 342 at 361 who said that the cannons of construction: "are … constitutionally salutary in helping to ensure that legislators are not left in doubt as to what they are taking responsibility for." 39 In view of the force of this considerable and longstanding body of case law, and its specific application to the interpretation of legislation which impinges upon the common law principle that there is no appeal from an acquittal, it is understandable that the drafter of the 2006 Amendment Act gave express attention to the issue of retrospectivity. S/he understood that this matter had to be addressed with respect to each of the two quite distinct sets of provisions to which Pt 8 applied. 40 Division 2 of Pt 8 is entitled "Retrial after Acquittal for Very Serious Offence" and is concerned with two situations: first, where there is fresh and compelling evidence, as defined, and secondly, where there is a "tainted acquittal", also as defined. In the case of both these categories s99, being the first section in Div 2 states: "99(1) This Division applies where: (a) a person has been acquitted of an offence, and (b) according to the rules of law relating to double jeopardy (including rules based on abuse of process), the person is thereby precluded or may thereby be precluded from being retried for the same offence, or from being tried for some other offence, in proceedings in this State. (2) This section extends to a person acquitted in proceedings outside this State of an offence under the law of the place where the proceedings were held. However, this section does not so extend if the law of that place does not permit that person to be retried and the application of this Division to such a retrial is inconsistent with the Commonwealth Constitution or a law of the Commonwealth. (3) This section extends to a person acquitted before the commencement of this Division." 41 Section 99(3) is of significance for present purposes. 42 In the present appeal the Appellant relied on s107(8), set out above which, to repeat, states that the section does not apply to a person who is acquitted before the commencement of the section. The Appellant submits that the Parliament, having turned its mind to the question of retrospectivity, made provision in s107(8) which was intended to comprehensively state the circumstances in which the Act did not operate retrospectively. In my opinion, no such inference is available. 43 Section 107(8) applies to all appeals on questions of law pursuant to Div 3 of Pt 8, being the three categories identified in s107(1). Section 107(8) is, in my opinion, inserted in this legislative scheme by way of express contrast with s99(3). Because Div 2 does expressly apply to persons already acquitted, it was thought advisable to expressly provide that Div 3 does not so apply. This limited purpose does not, however, indicate that an inference is available that an appeal may lie in any case in which an accused had not been acquitted at the time of coming into force of the 2006 Amendment Act. Such an implication would, in my opinion, offend the clear statement principle. 44 The process of inference upon which the Appellant must rely in this respect is not available in a case where legislation has impinged upon a fundamental principle of the common law. Clearly there is nothing express. Nor is there any "necessary" implication. The language is neither "unmistakeable" nor "unambiguous". Nor are any of the other formulations of the clear statement principle, to which Parliament clearly had regard with respect to this very Act, capable of being satisfied. 45 The common law presumption against retrospectivity is not spent when it is clear that Parliament intended a statute to operate retrospectively to some degree. Such a statute will only be given retrospective operation to the extent necessitated by the words of the statute, construed in their full context and in accordance with the legislative purpose, but to no greater extent. (See Reid v Reid (1886) 31 Ch D 402 at 408-409; Lauri v Renad (1892) 3 Ch 402 at 421 and Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; 63 NSWLR 557 at [48].) 46 This approach should be applied with particular stringency when, as here, the allegedly retrospective legislation modifies a fundamental principle of the criminal justice process. The doubt I expressed in World Best at [50]-[51] about the formulations in Zainal bin Hashim v Government of Malaysia [1980] AC 73 at 242 and State of Victoria v Robertson [2000] 1 VR 465 at 471 [21] may not be applicable in such a context. 47 The issue before this Court is closely analogous to that before the High Court in Newell v The King supra, where the Court was concerned with whether or not Tasmanian legislation, which introduced provisions for a majority verdict, had retrospective operation to criminal proceedings. The legislation, as Dixon J put it: " … should be taken to mean on the trial of any criminal issue joined after the commencement of the Act." (Newell supra at 712 and see the identical formulation of Evatt J at 714.) 48 In the present proceedings, although the Appellant was re-arraigned in the Supreme Court after the Act presently under consideration came into force, the relevant "criminal issue" had been "joined" in the District Court well before the commencement of the Act. 49 Furthermore, the two trials in the District Court and the trial in this Court were part of one proceeding for the same offence. (See Cornwell v The Queen [2007] HCA 12; 81 ALJR 840 at [88].) 50 For this reason alone the appeal in the present case should be dismissed.

The Notice of Appeal Issue 51 The Respondent contends that the Appellant failed to file a valid Notice of Appeal within the period of 28 days provided for in s107(3) and, accordingly, that the appeal is out of time. It also submits that leave to appeal out of time should not be granted. 52 The Appellant accepts that the Respondent filed in Court a document purporting to be a Notice of Appeal within the 28 day period, but submits that the document was not a Notice of Appeal within the meaning of the Act. He directed attention to two matters in the document filed at that time. First, the Notice was expressed in the following terms: "I desire to appeal to the Court of Criminal Appeal against directed acquittals by her Honour Justice Fullerton …". Secondly, the Notice stated that the appeal was said to be "On the ground that her Honour erred in a question of law", without further detail. 53 As to the first matter, the Respondent relied on the terminology of s107(1)(a) which states that the section "applies to the acquittal of a person … by a jury at the direction of the trial judge". He submits that the Notice failed to identify the "correct verdict being appealed against", which should have been against "the acquittal … by a jury at the direction of the trial judge", rather than "directed acquittals by her Honour Justice Fullerton". 54 This submission should be rejected. Section 107(1) identifies the circumstances in which the other provisions of s107 apply. The operative provision is s107(2) which is to the effect that either the Attorney General or the Director of Public Prosecutions "may appeal … against any such acquittal". In my opinion, the reference in the original Notice of Appeal to "directed acquittals by her Honour Justice Fullerton" should be understood as "acquittals directed by her Honour" and, so understood, refers to an "acquittal … by a jury at the direction" of the judge. 55 As to the second matter, the original Notice of Appeal referred to an appeal "on a question of law". It did not employ the terminology of s107(2) i.e. a "question of law alone". However, this is not the gravamen of the complaint by the Respondent. He relies on the failure to identify in any way the question of law said to be involved in a "ground". 56 In the present case her Honour had decided two questions of law with respect to each of the two counts on the indictment. In the event, as became clear only at the hearing of this appeal, the Appellant did not intend to appeal from the directed verdict with respect to the attempt charge. More significantly, the Appellant, in its original Notice, failed to identify any question of law. Subsequently, such grounds, said to involve a question of law alone, were supplied and leave to amend the Notice of Appeal is sought. I will consider this application under the heading "The Question of Law Issue" below. 57 A Notice of Appeal serves three functions. 1 It invests the appellate court with jurisdiction;

2 It identifies and, subject to permitted amendment, confines the issues which the appellate court must determine; and

3 It provides notice to the Respondent of the case he, she or it must meet. 58 The formulation in the original Notice of Appeal was "appeal … against directed acquittals by her Honour Justice Fullerton" which, as I have explained above, properly understood invoked the formulation in s107(2), save for its failure to identify a "ground that involves a question of law alone". 59 Plainly, the second and third functions of a Notice, which I have identified above, were not performed by the original Notice. That subsequently happened when a particularised form of Notice was filed, with respect to which leave to amend is sought, as discussed below. 60 In my opinion, there was no denial of procedural fairness. Indeed, save with respect to the uncertainty as to whether or not the appeal applied to both counts on the original indictment, the Respondent could have been in no doubt as to the question of law in issue. There was only one question of law decided by her Honour and the Respondent could have been in no doubt as to the issue which the Appellant sought to raise by way of appeal. 61 Nor, in view of the detailed Notice subsequently filed, and the extensive written submissions, was this Court unaware of the issue of interpretation sought to be raised on the appeal in adequate time for the hearing. 62 This leaves the function of conferring jurisdiction. That issue is whether it was sufficient to invest this Court with jurisdiction to assert that there was an error on a question of law, without more. 63 Where, as here, the relevant section expressly provides for an extension of time to lodge an appeal beyond the time stipulated, it is plain the Parliament did not intend that a failure to comply with the time stipulation was such as to affect the validity of the Notice as a document conferring jurisdiction on the Court. It cannot be said that the legislature intended that failure to comply with the stipulation as to time was such as to render invalid conduct done in breach of the stipulation. (See Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 esp at 388-390 [91], [93].) Nothing turns on the slight difference in terminology between the two formulations in that case. (See World Best Holdings supra at [105]-[109].) 64 Where the Court can grant leave to appeal after the expiry of the time stipulated, there is no reason to conclude that Parliament intended that a purported Notice of Appeal should be regarded as invalid and, accordingly, incapable of effectively invoking the jurisdiction which it purported to invoke, by reason of a failure to identify matters that should have been identified. 65 As long ago as 1880, at a time when such technical points were often successful, Field J said in R v Hutchins (1880) 5 QBD 353 at 357: "I do not think that grounds of appeal ought be construed as pleadings. The books are full of the finest points with regard to the construction of grounds of removal and appeal, but I hope the days for such subtleties has gone by. … [I]f an amendment was necessary, it ought be made. I think the power of amendment ought to be exercised, where the other party is not unjustly prejudiced by the amendment. Here the point having been taken before the magistrates, the respondents knew that it would be raised on the appeal." 66 In the present case no rules or regulations have been made with respect to the requirements of an appeal under Pt 8 of the Act. The Criminal Appeal Rules are directed to regulating appeals against conviction and sentence pursuant to the Criminal Appeal Act 1912. There is no formal requirement as to the form and content of a document instituting an appeal under the Act presently under consideration. 67 The issue before this Court does not involve any need to analyse the specific terminology of court rules. (C/f State of Victoria v Bacon (1998) 4 VR 269 at 286-289.) The issue is whether it is sufficient, in order to invest this Court with jurisdiction, to assert that there is an error involving a question of law, or whether it is necessary to identify the question with some precision. 68 In my opinion, the former is sufficient for purposes of investing the Court with jurisdiction. The latter is required, at some stage, to serve the other functions of a Notice of Appeal. 69 If I had come to a different conclusion, I would have had no difficulty in granting leave to file out of time a Notice which would rectify any failure to invoke the jurisdiction of the Court. Indeed, that would, if it were necessary, be the consequence of granting the leave sought to file an amended Notice, to which I now turn.

The Question of Law Issue 70 As noted above, s107(2) of the Crimes (Appeal and Review) Act restricts an appeal to this Court from an acquittal to a "ground that involves a question of law alone". The Respondent contends that the Notice of Appeal as filed, and as sought to be amended, does not identify a "question of law alone". For the reasons below, leave should be granted to the Appellant to amend its Notice of Appeal, but only with respect to proposed grounds 2 and 3. 71 The draft amended Notice of Appeal for which the Appellant seeks leave is in the following form: "I, Damian Bugg AM QC, Director of Public Prosecutions for the Commonwealth of Australia appeal against the acquittal of the respondent, … on the first count in the indictment, by a jury in the Supreme Court of New South Wales on 18 April 2007, at the direction of the trial judge, here Honour Justice Fullerton, on the grounds that her Honour's directions involve a question of law alone. Statement of the grounds for appeal Her Honour's direction to the jury to acquit the respondent involved the questions of law alone referred in paragraphs 1 - 5 below and errors in respect of those questions. 1. Her Honour erred: (a) in rejecting the submission recorded at paragraph 23 of the judgment; and (b) in her analysis (in paragraph 23) of that submission. 2. Her Honour erred in expressing the view stated in the first sentence of paragraph 38 of the judgment. 3. Her Honour erred in expressing the view that the words of section 39 of the Crimes Act 1914 and the declared operation of the Criminal Code as provided in the provisions of Chapter 2, require the prosecution to prove that an accused knew that the proceedings in which the evidence may be required were or are 'Federal judicial proceedings' (see para 39 of the judgment). 4. Her Honour erred in concluding that on a proper construction of section 39 of the Crimes Act 1914, the Crown must prove that the accused knew that the data may be required in 'Federal judicial proceedings' (see para 42 of the judgment). 5. In a proceeding for a breach of section 39 of the Crimes Act 1914, all that the Crown must prove, so far as concerns the accused's knowledge of the type of the possible judicial proceedings, is that the accused knew certain facts. But those facts must be such as to have enabled as a matter of law, a proceeding to be instituted: (a) in or before a federal court, court exercising federal jurisdiction or a court of a Territory; or (b) before a body or person acting under the law of the Commonwealth, or of a Territory, in which evidence may be taken on oath." 72 I have set out at pars [15] - [17] above pars [23], [38], [39] and [42] of the judgment of Fullerton J to which reference is made in proposed grounds 1 to 4. 73 The Notice does contain some distracting words which are best omitted. The last clause should read, with deletions identified: "On the grounds that her Honour's directions involve a question of law alone". However this is mere surplusage. 74 Plainly, the formulation "a question of law alone" is more restrictive than the formulation "a question of law". Furthermore, the terminology "question of law" is not equivalent to "error of law". Nevertheless, at least by way of particularisation, it is necessary for a Notice of Appeal to identify the "question of law alone" said to be involved in specific grounds for appeal. Such questions of particularisation do not involve a rigid requirement. In the present case it was at all times tolerably clear what, at least with respect to the first count on the indictment, the relevant question of law must be. 75 Nevertheless, it is a requirement of a Notice of Appeal in this context that the specific "question of law alone" said to arise should be identified with reasonable precision. 76 Grounds 1 to 4 in the proposed amended Notice of Appeal all employ the formulation "her Honour erred". This is a common formulation for identifying a "ground" of appeal for purposes of s107(2). 77 Save in so far as there is an interconnection between grounds 1 and 2 and the legal issue identified in grounds 3 and 4, I am unable to identify any question of law 'involved' in grounds 1 and 2. Matters of this character should not be left to a process of inference and leave to amend to rely on grounds 1 and 2 should be refused. 78 Similarly, ground 5 is, as the Respondent contended, not a question of law at all, but is more in the nature of a submission. 79 There does not appear to me to be any material difference between grounds 3 and 4. They appear to raise the same issue, being the proper interpretation of s39 of the Crimes Act 1914 in the light of s31 of that Act and the operation of Ch 2 of the Criminal Code. The difference between "expressing the view" referred to in ground 3 and "concluding" in ground 4 does not appear to me to be material. Nevertheless, in each case the reference is surplusage. It would be best to approach each of grounds 3 and 4 as if they commenced, respectively: "Whether the words of s39 …" and "Whether on a proper construction …". 80 The Respondent submitted that the grounds in the proposed amended Notice of Appeal involved a mixed question of fact and law and were accordingly not "a question of law alone" as established in Williams v The Queen (1986) 161 CLR 278 at 287, 301 and 314. The direction to the jury, the Appellant submitted, was based on the combined effect of her Honour's interpretation and the absence of evidence as to the accused's knowledge that any proceedings were federal judicial proceedings, within the definition of the Crimes Act. 81 The application of the reasoning in Williams supra, to the formulation in s107 of the Act is by no means clear. The Criminal Code of Tasmania, which established the right of appeal from an acquittal under consideration in Williams, was different from the recent New South Wales statute. The Tasmanian provision referred to an appeal by leave "against an acquittal on a question of law alone". The New South Wales provision is more expansive in its reference to "against any … acquittal on any ground that involves a question of law alone". The reference to the 'involvement' of a "question of law alone" in a "ground" is wider than the use of the word "on" in the Tasmanian statute. 82 In any event, Williams is distinguishable. The issue there under consideration concerned the discretionary exclusion of evidence. That is quite different from what happened in the present case, which involved separate steps. The first was her Honour's determination of the proper construction of the statutory offence. The second was her Honour's determination, on that construction, that there was no evidence capable of supporting the charge. This was not a mixed question of fact and law. There was a question of law, followed by a question of mixed law and fact. 83 The interpretation of the provision was the relevant, indeed determinative, step and that step does answer the description of a "question of law alone". Accordingly, the words "such acquittal" in s107(2), which must be read relevantly as stating "acquittal by a jury at the direction of the trial judge", did involve a question of law alone. 84 The Respondent's submissions in this respect should be rejected.

The Constitutional Issue 85 The Respondent contends that s80 of the Constitution of the Commonwealth, requiring trials on indictment to be by jury, has the consequence that it is impermissible to enact legislation applicable to Commonwealth offences which qualified the finality of an acquittal following a verdict of not guilty by a jury. This issue turns on whether or not the finality of a verdict of acquittal is an essential characteristic of trial by jury within the meaning of s80. (See Cheatle v The Queen (1993) 177 CLR 541 esp at 557-558; Brownlee v The Queen (2001) 207 CLR 278 esp at 284 [5] and 288-289 [21]; Ng v The Queen (2003) 217 CLR 521 at [9]. See also the article by A W Scott "Trial by Jury and the Reform of Civil Procedure" (1918) 31 Harvard Law Review 669 at 671 quoted in Brownlee at 298.) However, as has been recognised in the authorities, the procedures with respect to the jury system have never been immutable, (see e.g. Brownlee supra at 286 [12]), and not all traditional incidents of trial by jury are essential (see e.g. Brownlee supra at [24]-[27], [54]-[67], [189]-[192]). 86 The Court received detailed submissions from the Respondent and also from the Attorney-General of the Commonwealth intervening, with respect to the issue of essentiality, drawing on both the historical context and relevant case law. I do not find it necessary to deal with the detail of these submissions. This is because the issue before the Court has been the subject of express determination by another intermediate Court of Criminal Appeal in R v Sung Bo Kim (1993) 65 A Crim R 278, where submissions of the present character were expressly rejected in their application to the provisions of the Criminal Code of Tasmania, which has long permitted appeals from an acquittal. 87 This decision invokes the principle identified in the joint judgment of the High Court in Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485 at 492, where the Court indicated that, in the case of uniform national legislation, and of course all the more so in the case of the Constitution itself, an intermediate appellate court should generally follow another Australian intermediate appellate court, unless convinced that the interpretation is "plainly wrong". The Respondent accepted that this test applied to the issue in the present proceedings and sought to convince the Court that the reasoning of the Tasmanian Court of Criminal Appeal was plainly wrong in the requisite sense. 88 Sung Bo Kim was decided prior to Cheatle, the origins of contemporary jurisprudence on the interpretation of s80 of the Constitution. Nevertheless, it drew on reasoning in the split decision of the High Court in Snow supra with respect to the very issue of whether or not s80 permitted an appeal from an acquittal. 89 Green CJ concluded that Snow was not authority for the proposition that s80 prevented the institution of an appeal from an acquittal by a jury at 279-280. His Honour concluded at 280: " … [A]lthough there are principles or presumptions which militate against construing statutes so that they confer a right of appeal against acquittals they do not derive their validity from any special rule relating to trial by jury but from other more general common law principles. Thus whilst no doubt the effect of s80 is to preclude the enactment of a statute which gives a court of appeal the power to substitute a verdict of guilty for an acquittal there is no reason to conclude that it precludes the enactment of a statute conferring a power to review acquittals and order a new trial." 90 Furthermore, in Sung Bo Kim Zeeman J analysed the judgments in Snow in some detail and agreed that it was not authority for the proposition that one of the concomitants of trial by jury within s80 was the absence of appeal against a verdict of acquittal. His Honour concluded at 285: "Of the six justices who decided that case, three expressed opinions in support of that proposition and the other three expressed opinions to the contrary." 91 His Honour concluded, after referring to The Queen v Kingswell (1985) 159 CLR 264 at 276-277, that: "So long as the trial is by what may fairly be described as a jury and so long as any ultimate determination of guilt is by verdict of a jury, it cannot be said that the provisions of s80 are offended." [p286] 92 In my opinion, the conclusion of the Court of Criminal Appeal of Tasmania in Sung Bo Kim is reasonably open. Furthermore, the analysis of the judgments of the High Court in Snow also appears to me to be accurate. Accordingly, this Court must apply the test in Marlborough Gold Mines set out above to a situation in which there is a reasoned judgment of an intermediate Court of Appeal drawing upon reasoning, precisely in point, of an equally divided High Court. In my opinion, the test in Marlborough Gold Mines cannot be satisfied in such circumstances. This Court ought to follow the reasoning of the Tasmanian Court of Criminal Appeal and leave it to the High Court to redetermine this issue if thought appropriate.

The Judiciary Act Issue 93 In the alternative to its reliance on s80 of the Constitution, the Respondent contended that s68(2) of the Judiciary Act 1903 (Cth) does not pick up and apply provisions of the Crimes (Appeal and Review) Act 2001 which permit appeals from an acquittal. That section relevantly provides: "68(2) The several courts of a State or Territory exercise in jurisdiction with respect to: … (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of proceedings connected therewith , shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth." 94 The Respondent invokes the case law, which I have discussed above in the context of the retrospectivity issue, establishing the principle of legality and the principle of clear statement with respect to the modification of fundamental common law principles. The Appellant specifically refers to the application of these principles to a statute creating an appeal from an acquittal by a jury, relying on the analysis in Snow and Cheng, to which I have referred above, and Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397. 95 This is also a matter considered by the Court of Criminal Appeal of Tasmania in Sung Bo Kim. The respondent in that case relied on the observations of Deane J in Thompson v Mastertouch supra esp at 412-413, which were approved in the judgments of the High Court in Davern v Messel (1984) 155 CLR 21, although the majority of the Court in that case did not apply them to the provisions of the Federal Court of Australia Act (1976) there under consideration. The Respondent in Sung Bo Kim had submitted that these particular statements of the clear statement principle and of the principle of legality were such that the Court of Criminal Appeal of Tasmania should not follow its earlier judgment in R v Sender (1982) 7 A Crim R 344. In Sender the Attorney-General for the Commonwealth appealed against an acquittal pursuant to provisions of the Tasmanian Criminal Code permitting such an appeal. 96 In Sender, as in this case, the respondent submitted that the words of s68(2), which I have italicised above, were enacted consequent upon the judgment of the High Court in Seagg v The King (1932) 48 CLR 251 and should be interpreted as doing no more than overcoming that specific decision. 97 Secondly, the respondent in Sender submitted that to permit s68(2) to pick up the then unique provisions of the Tasmanian Criminal Code, providing for an appeal from an acquittal, would lead to "anomalous differences between the States in the administration of the criminal law" (at p346). 98 Thirdly, the respondent in that case submitted that to so interpret s68(2) would be to "violate … a well established principle that prima facie no appeal should lie against an acquittal" (at p346). 99 The Tasmanian Court of Criminal Appeal rejected these submissions. 100 With respect to the first submission the Court accepted that the additional words were added to s68(2) in response to the judgment in Seagg, but determined that they could not be limited to curing the specific issue that arose in that case (pp346-347). Indeed, the words go further than required by that judgment. 101 Secondly, with respect to the alleged anomaly, the judgments in Sender rejected the proposition that differences amongst the States was in any way "anomalous" (p347). Their Honours concluded that the formulation by Dixon J in The Queen v Williams (No 2) (1934) 50 CLR 551 at 560, of the correct approach to the interpretation of the Judiciary Act in the directly relevant respect, had been approved by the majority of the High Court in The Queen v Peel (1971) 125 CLR 447. See at 468 per Gibbs J, whom Menzies, Windeyer and Owen agreed at 457 and 460. 102 In Williams Dixon J said: " … [T]he general policy disclosed by the enactment, namely, to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice."

I accept that this statement should be accepted as authoritatively determining an issue that had previously divided the High Court. 103 Accordingly, the Court in Sender rejected the proposition that the clear statement principle should lead to the conclusion that the Commonwealth Parliament did not intend, when enacting the Judiciary Act, or when amending s68(2) in the wake of Seagg's case, to interfere with the fundamental common law principle concerning the finality of a jury acquittal. Subsequent authorities have accepted that this result flowed from the majority in Peel. (See e.g. Rohde v Director of Public Prosecutions (1986) 161 CLR 119 at 130, 136-137.) The validity of the approach of Dixon J in Williams has been confirmed in the joint judgment in The Queen v Murphy (1985) 158 CLR 596 at 617 and in The Queen v Gee (2003) 212 CLR 230 at [6]-[7], [57], [63]-[64], [134]-[137] and [180]-[186]. 104 Green CJ concluded that this presumption of the law of statutory interpretation did not apply. His Honour said: "Section 68(2) does not itself define what rights of appeal are vested in parties to criminal proceedings arising out of breaches of Commonwealth law. All section 68(2) does is to define the classes of State legislation which are to apply to such proceedings and there is no suggestion that the draftsmen intended that section 68(2) should operate selectively depending on whether the laws of the State in which the proceedings took place satisfied some criteria of acceptability derived from the common law or elsewhere. The only question in each case is whether the particular jurisdiction which is being invoked falls into one of the categories referred to in section 68(2) and it is not appropriate to apply the principle or presumption relied on by the respondent to the determination of that issue." 105 His Honour went on to say that, in any event, the presumption would be displaced by the approach to the interpretation of the Judiciary Act identified by Dixon J in Williams, as approved subsequently in Peel. His Honour also invoked the similar view expressed by Mason J in Ex parte Blacklock (1974) 131 CLR 338 at 345. 106 The other members of the Court gave reasons to similar effect (see at 355, 362-363). Specifically, with respect to the invocation by the respondent in Sender of the reasoning of Griffiths CJ in Snow supra at 322, Cox J said at 366-367: "Legislation passed by the Commonwealth Parliament in 1932 conferring rights of appeal on the parties to the trial was enacted in the knowledge that the legislature in the State of Tasmania had in fact conferred such a right on its law officers eight years previously and that the legislatures of all the other States had like power to do so if and when they chose to." 107 With respect to the principle of clear statement, as applied to the interference with a fundamental principle of the common law involved in establishing a right to appeal from a jury acquittal, Cox J said, referring to the amendment of the Judiciary Act in 1932 after Seagg's case at 367: "But the legislature in 1932 was not overthrowing fundamental principles or departing from the general system of law, but rather adopting the system of administering the criminal law in each State in respect of all proceedings connected with offences against Commonwealth laws conducted in each State." 108 This is a clear application of the principle advanced by Dixon J in Williams as approved by the majority in Peel. 109 When the matter was raised again in Sung Bo Kim, Zeeman J, with whom Green CJ and Wright J agreed, rejected a similar submission based on the reasoning of Deane J in Thompson v Mastertouch as approved in Davern v Messel and applied the reasoning of Cox J in Sender at pp287-288. 110 In my opinion, although the judgments in Sender and Sung Bo Kim may have given too much emphasis to the existence of the specific provision of the Tasmanian Criminal Code, they nevertheless came to the correct conclusion as to the approach to s68(2) of the Judiciary Act. Subsequent authorities are to the same effect. (See e.g. Leeth v The Commonwealth (1992) 174 CLR 455 at 467; Gee supra 230 at [6]-[7], [63]-[64]: Putland v The Queen (2004) 218 CLR 174 at [71].) 111 The dominant purpose of this, and of other provisions of the Judiciary Act, is to ensure that, subject to identified restrictions, persons accused of crimes under State legislation should be subject to the same incidents of trial as persons accused of crimes under Commonwealth legislation. That is a distinct policy choice made by the Commonwealth Parliament. It could have easily made the choice that, in all relevant respects, the incidents of a trial for a Commonwealth offence should be uniform throughout Australia. It has not, or at least not yet, made any such determination. 112 As Gleeson CJ said in Gee supra at [7]: "That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time."

(See also at [13]; McHugh and Gummow JJ at [63]-[64] and Callinan J at [182].) 113 The dominant purpose served by, relevantly, s68(2), is of sufficient strength to override the applicability of other principles of statutory interpretation that may otherwise be drawn on. It is the existence and strength of a purpose of this character that satisfies, in the particular circumstances, the requirements of the clear statement principle. 114 The Judiciary Act cannot be interpreted as if it were another piece of legislation. It deserves to be approached as a special Act, just as the Constitution cannot be interpreted like any other statute. All of the principles of the law of interpretation must be applied with an understanding of the nature of the document that is being interpreted. The Constitution of Australia is a written constitution. However, like the British Constitution, a number of Australian statutes have constitutional significance and their interpretation should be approached with that consideration in mind. 115 The Judiciary Act is legislation of a quasi constitutional character. Its purpose includes the purpose of ensuring that accused persons in each State are, with defined exceptions, the subject of incidents of a criminal trial which are the same for Commonwealth offences as they are for State offences. This is a purpose of overriding significance and is sufficient to displace the application of principles of statutory interpretation which lead the Court to read down general words to conform with principles which Parliament is presumed to respect. (As discussed in cases such as Bropho and Coco referred to above.) 116 As Dixon J said of the Judiciary Act in Williams supra at 561: "General words adopting an existing set of provisions of State law appear to me to be of a different order from general words which are not referential, but deal independently with the subject matter." 117 After referring to an authority on the presumption against modification of common law rights, his Honour added at 561: "But such a process of interpretation does not appear to me to be applicable to an enactment dealing with the existing and known provisions of a particular department of the statutory law of the States and by a general description adopted for a Federal purpose. Whatever, upon the natural meaning of the language falls within the description should, I think, be understood as within the legislative intention." 118 In any event, the application of the principle in Marlborough Gold Mines requires this Court to follow the reasoning of the Tasmanian Court of Criminal Appeal in both Sender and Sung Bo Kim. Other intermediate courts of appeal have adopted the same approach. (See e.g. R v Walsh (1984) 3 NSWLR 584 at 588; Bagshaw v Carter [2006] NSWCA 113 at [28].) 119 It may be that the views expressed in Sender at 366 that an appeal against acquittal does not arise "out of any proceedings connected with the trial" is wrong. (See Byrnes v The Queen (1999) 199 CLR 1 at [51] approving Barwick CJ in Peel supra at 454.) However, an appeal under s107 of the Act is an appeal "arising out of any such trial" and within the words added to s68(2) after Seagg. (See Sender at 365-366.) The jurisdiction to consider a question of law reserved, upheld in Gee supra, is not, in my opinion, distinguishable. The Respondent's contentions should be rejected.

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.

Conclusion 160 It is not necessary to consider the discretionary and factual issues raised by the Respondent. 161 The orders I propose are: 1 Leave granted to file the amended Notice of Appeal containing Grounds 2 and 3.

2 Appeal dismissed. 162 MASON P: I have had the benefit of reading in draft the judgment of the Chief Justice. I agree with his reasons and the orders proposed. I would add the following with reference to the s80 point. 163 The trial in the Supreme Court came to an end on 18 April 2007 when the jury gave directed verdicts of not guilty on the two counts in the indictment and Fullerton J discharged the respondent. 164 It is common ground in this Court that the trial was held in accordance with s80 of the Constitution, notwithstanding that the verdicts were given at the direction of the trial judge. A directed verdict of acquittal is a long-established method of bringing a jury trial to finality in such a way as to engage the autrefois acquit branch of the rule against double jeopardy. 165 The appeal does not engage the body of case law that permits proceedings to be regarded as a nullity because of non-compliance with a fundamental aspect of the concept of trial on indictment (see eg Crane v Director of Public Prosecutions [1921] 2 AC 299; Swansson v The Queen (2007) 168 A Crim R 263 , [2007] NSWCCA 67). 166 Section 107 of the Crimes (Appeal and Review) Act 2001 allows the Director of Public Prosecutions to appeal against an acquittal on a ground that involves a question of law alone. The Chief Justice demonstrates why this provision applies in this State with respect to federal matters by the operation of s68(2) of the Judiciary Act 1903 (Cth). The respondent submits that, in addition to the retrospectivity issue touching the instant trial, s80 of the Constitution would preclude s107 from being capable of applying with respect to the trial on indictment of federal offences. It is submitted that s80 of the Constitution prevents the Crown from appealing against a verdict of acquittal by a jury in a federal proceeding. 167 This aspect of the appeal is effectively on all fours with the decision of the Full Court of the Supreme Court of Tasmania in R v Kim (1993) 65 A Crim R 278. The Court there held that a Tasmanian statute allowing a prosecution appeal from an acquittal on a question of law was picked up by s68(2) of the Judiciary Act in federal jurisdiction and that s80 of the Constitution did not preclude this. Although the respondent submitted that this decision should not be followed, I perceive that it is our duty to so unless convinced it is plainly wrong (cf Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 with respect to federal statutes). In fact, I agree with the Tasmanian decision. 168 Section 80 of the Constitution provides: Trial by jury The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. 169 In Cheatle v The Queen (1993) 177 CLR 541, the High Court pointed out (at 549-1, 557-8) that the s80 reference to the common law institution of "trial by jury" guarantees that trial on indictment of an offence against a law of the Commonwealth will embody the "essential" features or attributes of that institution "with all that was connoted by that phrase in constitutional law and in the common law of England". Cheatle and later cases examined aspects of the process of jury trial such as requirements going to gender and composition (Cheatle at 560), minimum size and capacity to separate before verdict (Brownlee v The Queen (2001) 207 CLR 278), the use of "reserve" or "additional" jurors (Ng v The Queen (2003) 217 CLR 521) and the requirement of a unanimous verdict (Cheatle). 170 These considerations address the manner in which a jury is formed or goes about its business, in other words the processes of the trial itself. In the present case, as indicated, those processes were followed by both judge and jury in an unexceptionable manner down to verdict and acquittal. 171 This case poses the question whether the constitutional guarantee entrenches what is said to be the attribute of finality of the jury's acquittal. As Mr Gleeson SC pointed out, the common law recognised that a verdict of acquittal could not be set aside by the trial judge, or challenged by any process of appeal or judicial review, or ignored by the launching of a fresh prosecution. These principles applied even where the verdict stemmed from judicial error in the form of a ruling on evidence or misdirection (see generally United States v Sanges (1892) 144 US 310 at 312; The King v Snow (1915) 20 CLR 315; Friedland M L, Double Jeopardy, Oxford Clarendon Press, 1969, Ch 10). 172 In Snow, the High Court recognised unanimously that the finality principle was an important aspect of the institution of trial by jury in the common (and constitutional) law of England. But the Court split 3:3 as to whether this had any bearing on s80. Griffith CJ (at 323) and Gavan Duffy and Rich JJ (at 363-5) considered the finality principle to be an aspect of the constitutional guarantee in s80, with the result that there could be no appeal directly to the High Court pursuant to s73 of the Constitution from a directed acquittal. By contrast, Isaacs J (at 351-2), Higgins J (at 353-4) and Powers J (at 367-8, 373) drew no such implication from s80. 173 I note (without expressing any conclusion on the matter) the analysis of Green CJ in Kim (at 279) where he suggests that of Griffith CJ's reasoning in Snow was reinforced but not dependent on his view of the scope of s80. 174 It also may be that Isaacs J's reasoning is limited to a directed verdict stemming from judicial error, something that his Honour characterised as "no real verdict" (at 344, 346). There is authority in this State rejecting that part of Isaac J's reasoning in Snow (see R v Lethlean (1995) 83 A Crim R 197 at 204). 175 In the final analysis it is unproductive to search for the ratio decidendi of individual judgments in Snow. The parties accept that the equal division of opinion about the scope of s80 precludes Snow from being a binding authority as to the scope of the constitutional guarantee. 176 I shall briefly state my reasons for preferring the narrower interpretation of s80 and why I would not depart from the similar ruling of the Tasmanian Full Court in Kim. 177 No one, to my understanding, disputes the proposition that a jury verdict of acquittal was "final" according to ancient common law in each of the senses referred to by Mr Gleeson SC. It would not be inapt to describe this as a principle of English "constitutional" law having regard to the role of the jury in the English polity (see The King v Weaver (1931) 45 CLR 321 at 356. See also the references to the "constitutional" role of the jury in Chidiac v The Queen (1994) 171 CLR 432 at 443 per Mason CJ and 454 per Dawson J and M v The Queen (1994) 181 CLR 487 at 502 per Brennan J). 178 The question whether there should be legislative reversal of this finality principle was under debate in England in the 1890s (see Rosemary Pattenden, English Criminal Appeals, 1844-1994 Oxford Clarendon Press, 1996, p285). The principle had been overturned by legislation in Canada in 1892 (see R v Morgentaler (1985) 22 CCC (3d) 353 at 400-402). But the common law prevailed in England and in the Australian colonies at federation. 179 Accepting the fundamental nature of the common law principles, the real issue is nevertheless the proper characterisation of those finality principles as at 1900. Were they an aspect or attribute of trial by jury? Or were they aspects of different common law principles related to double jeopardy or the absence of any right of appeal at common law? 180 My reasons for locating the finality principles outside the constitutional guarantee of trial by jury are threefold. 181 First, I see some support textually from the repeated references to "trial" in s 80. Section 80 spells out a "method" of trial (Brown v The Queen (1985) 160 CLR 171 at 202, 214) or a "mode of criminal procedure" (Brownlee at 284[6]). The section says nothing about how often that function may be performed, or the circumstances in which a new trial may be ordered. It is also silent as to the status of a verdict. 182 Secondly, I would adopt the reciprocity argument developed by Isaacs and Higgins JJ in Snow. If s80 connoted the common law's finality of an acquittal it would follow that it would connote the finality of a conviction, given that the common law knew no appeal against either outcome. In Higgins J's words (Snow at 354), "in 1900, when our Constitution was passed into law, there was no appeal in English Courts from either conviction or acquittal." No one suggests that s80 precludes statutory rights of appeal against conviction. 183 I do not think that the force of this argument is met by pointing to limited remedies available in the nineteenth century to challenge wrongful convictions (see Conway v The Queen (2002) 209 CLR 203 at 208-217). The strenuous rearguard battle mounted by the English judiciary in the late nineteenth century against proposals to establish a Court of Criminal Appeal (Pattendon, op cit, pp22-25) included arguments that a prisoner's right of appeal would undermine the finality of the currency of the jury's verdict (of guilt). The currency of such arguments make it difficult to show that the framers of s80 would have been intending to take any position on the jury finality issue. 184 Thirdly, the United States experience as at the commencement of the Australian Constitution located finality principles touching a verdict of guilt or innocence within the American constitutional rules about double jeopardy, not within their constitutional rules about trial by jury in criminal matters. The founders of the Australian Constitution, who had before them the American model, chose to adopt a constitutional guarantee of trial by jury and decline a constitutional entrenchment of double jeopardy principles. 185 In developing this point I shall address the submissions based on United States constitutional law advanced by Mr Gleeson SC. 186 There were American Supreme Court decisions in the late 19th century rejecting any common law right of government appeal against a jury's acquittal (United States v Sanges (1892) 144 US 310; United States v Ball (1896) 163 US 662. See also United States v Wilson (1975) 420 US 332 at 336). These go no further than illustrating the common law situation in 1900. 187 Mr Gleeson relied upon Capital Traction Company v Hof (1899) 174 US 1 as representing the state of American law at the commencement of the Australian Constitution. However, Capital Traction does not assist the argument because that case involved a civil action. The United States Constitution provides in its Seventh Amendment that (emphasis added): In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. 188 The emphasised words go well beyond the simplicity of s80 in that they address the appellate consequences and methods of impugning a jury verdict in a civil action. In Capital Traction, the Supreme Court had no difficulty in construing those words as mandating compliance with the rules of the common law in England as regards the capacity to re-examine any fact tried by a jury in a civil action. The Court then proceeded to examine and apply those law rules (in Part II of the Opinion at 8-13). Mr Gleeson pointed to passages in Capital Traction (at 12-13) illustrating that the Seventh Amendment embodied a constitutional guarantee as regards the "external impact" (CCA Tr p25) of the jury's verdict. Quite so. But this was in relation to a civil action and it was the express language of the concluding portion of the Seventh Amendment that drove the whole of that Part of the Court's reasoning (see eg at 9.5, 13). 189 Mr Gleeson pointed to statements in Capital Traction (at 13-14, 16) recognising that a jury's acquittal on a criminal charge could not be set aside on the basis that the verdict was against the law and the evidence. One of those passages is quoted by Quick and Garran, Annotated Constitution of the Australian Commonwealth, p310. These dicta are found in a separate Part of the judgment (Part III) discussing the "primary and usual sense of the term ['trial by jury'] at common law" (at 13). As such, the dicta may provide tangential support for the argument contending for the broader scope of s80 of the Australian Constitution. But Capital Traction was decided on 11 April 1899, over a year after the last of the Conventions that hammered out the terms of our Constitution. And the common law consequence of an acquittal to which the dicta refer is not, for the reasons above, the same as saying that this is within the scope of a constitutional guarantee of trial by jury framed with the sparcity of s80. 190 When the United States Supreme Court faced the issue squarely in 1904, it located the constitutional guarantee elsewhere than in the provision dealing with trial by jury in criminal matters. 191 In Kepner v United States (1904) 195 US 100 the Court held that the American Constitution prohibited government appeals authorised by statute. However, that prohibition was located in the Fifth Amendment (double jeopardy), not in Article III (trial by jury). This had a significance that was pointed out, namely that the constitutional incapacity to impugn an acquittal extended beyond a jury's verdict of acquittal to an acquittal entered upon the determination by a court on a question of law (see 195 US at 128-133). (Kepner was not cited to us, but since the appeal turns ultimately on other issues, I have not thought it necessary to seek further assistance of counsel on the matters that I derive from this decision.) 192 In Fong Foo v United States (1962) 369 US 141 a directed verdict of acquittal was challenged by Government petition for mandamus to the Court of Appeals from the First Circuit. The petition was granted. The United States Supreme Court set this order aside. Significantly, for present purposes, this was because reviewing the acquittal was found to violate the Constitution because it put the accused twice in jeopardy (see at 143). 193 The reasoning of the High Court in The Queen v Carroll (2002) 213 CLR 635 demonstrates that the doctrine of double jeopardy reflected in the pleas of autrefois convict and autrefois acquit are aspects of a wider principle precluding calling into question orders made upon the final determination of legal proceedings, especially determination of criminal proceedings by a verdict of acquittal (see per Gleeson CJ and Hayne J at 647[35], 651[48], per Gaudron and Gummow JJ at 662[91]-[93], per McHugh J at 675[137]-[138]). This extension of the autrefois rules does not, however, serve to relocate them within the sphere of s80. On the contrary. The preclusion discussed in Carroll operated by reference to the final outcome of the criminal process (acquittal), not the mode whereby it came about. The accused in Carroll had been convicted by a jury but he was acquitted on appeal to the Court of Criminal Appeal of Queensland. In this sense, Carroll is reflective of the approach taken by the United Stated Supreme Court in Kepner. 194 McCLELLAN CJ at CL: I agree with Spigelman CJ. 195 HIDDEN J: I agree with Spigelman CJ. 196 HOWIE J: I agree with Spigelman CJ. **********

04/08/2008 - Correct version of s 9.3 of the Criminal Code. - Paragraph(s) 13

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.