Citation: Selim v Regina [2006] NSWCCA 378
Court: New South Wales Court of Criminal Appeal
Date: 10 November 2006
Judge(s): McClellan CJ at CL; Hulme J; Rothman J
Background
The applicant was the former Chief Executive Officer and majority shareholder of Pan Pharmaceutical Limited. He faced retrial on two alternative charges arising from allegations that, on 30 January 2003, he directed an IT manager to wipe a company computer's hard drive containing original test data for a travel sickness medication called Travacalm.
The Crown alleged that the applicant knew the data was being sought by auditors from the Therapeutic Goods Administration, who were conducting an audit that day. The destruction of the data was said to have been carried out using specialist reformatting software that rendered the original data irrecoverable.
The charges were brought under section 39 of the Crimes Act 1914 (Cth), which prohibits the intentional destruction of things known to be or potentially required as evidence in a judicial proceeding, and section 11.3 of the Criminal Code (Cth), which deals with procuring the criminal conduct of another person. After the Crown opened its case at the retrial, the applicant brought an interlocutory application for leave to appeal against rulings made by the District Court trial judge.
Legal Issues
- Whether the indictment was duplicitous on its face (patent duplicity) by charging the applicant under multiple limbs of section 39, namely destroying, rendering illegible, indecipherable, or incapable of identification.
- Whether the indictment was affected by latent duplicity because the Crown relied on more than one type of judicial proceeding as potentially being in the applicant's contemplation.
- Whether the trial judge had applied the correct test for establishing the accused's knowledge that a thing "may be required in evidence in a judicial proceeding."
- Whether leave to appeal under section 5F(3)(a) of the Criminal Appeal Act 1912 should be granted in respect of these interlocutory rulings.
Decision
On Ground 1 (patent duplicity), the Court noted that the applicant had not raised an objection to the indictment before the jury was sworn, as required by section 17 of the Criminal Procedure Act 1986. Senior counsel for the applicant acknowledged this, explaining that the objection had been bundled with the latent duplicity ground and raised after the Crown opening. The Court took the view that the alleged defect, if it was one at all, was apparent on the face of the indictment and should have been raised at the proper time. On a preliminary view, the multiple limbs in section 39 were seen as different species of the same genus describing the prohibited effect rather than separate offences giving rise to duplicity.
On Ground 2 (latent duplicity), the Court considered whether reliance on multiple types of prospective judicial proceedings created an unfair ambiguity. Rothman J, writing separately, noted that the definition of "judicial proceeding" in the relevant legislation confined it to proceedings within the scope of Chapter III of the Constitution, meaning federal judicial proceedings. His Honour took the preliminary view that such proceedings must be more than a mere possibility in the accused's contemplation. The Court acknowledged the argument had force on both sides but noted that any unfairness from a lack of specificity could be remedied through particulars, and that the trial judge had himself flagged concern about that lack of particularity.
On Ground 3 (the mental element test), the Court did not treat this as a sufficiently strong or distinct ground to support the grant of leave at this interlocutory stage.
Across all grounds, the Court applied the general principle that jury trials, once commenced, should not be interrupted except in exceptional circumstances. The Court found that, even if any of the grounds had real merit, the applicant would be fully protected on any appeal following conviction. Leave to appeal was therefore refused.
Orders Made
- Leave to appeal refused.
- Application dismissed.
Key Takeaways
- Under section 5F(3)(a) of the Criminal Appeal Act 1912, leave to appeal against interlocutory rulings in criminal trials will not readily be granted; the Court confirmed that jury trials, once commenced, should be disturbed only in exceptional circumstances.
- A patent defect in an indictment must be raised by objection before the jury is sworn, as required by section 17 of the Criminal Procedure Act 1986; failure to do so before the Crown opens its case is a significant procedural barrier to later relief.
- On a preliminary view, the Court of Criminal Appeal considered that the multiple limbs of section 39 of the Crimes Act 1914 (Cth) describe variations of a single prohibited effect rather than separate offences, making a duplicity argument difficult to sustain.
- Where the accused argues latent duplicity based on multiple types of prospective judicial proceedings, Rothman J noted that the "judicial proceeding" must be confined to federal proceedings under Chapter III of the Constitution and must be more than a mere possibility in the accused's contemplation.
- Refusing leave on all grounds, the Court noted that any error in the trial judge's interlocutory rulings would not go uncorrected, as a conviction obtained on a defective indictment could be challenged on appeal after verdict.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1914 (Cth), s 39
- Criminal Code (Cth), s 11.3
- Criminal Procedure Act 1986 (NSW), s 17
- Trade Practices Act 1974 (Cth)
- Therapeutic Goods Act 1989 (Cth)
Cases:
- Kang v Kwan [2002] NSWSC 1187
- R v Ensbey; ex parte A-G (Qld) [2004] QCA 335
- R v Janceski (2005) 64 NSWLR 10
- R v O'Halloran (2000) 182 ALR 431
- Romeyko v Samuels (1972) 2 SASR 529