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Supreme Court 18 April 2007

R v SELIM

[2007] NSWSC 362

Public order & justice offences
CRIMINAL LAW APPLICATION FOR A DIRECTED VERDICT

Citation: R v Selim [2007] NSWSC 362
Court: Supreme Court of New South Wales (Common Law Division, Criminal List)
Date: 18 April 2007
Judge(s): Fullerton J

Background

The accused was charged with two counts arising from events on 30 January 2003 in Sydney. The first count alleged that he, knowing that computer data held by Pan Pharmaceuticals Limited relating to a travel sickness medication called Travacalm may be required in evidence in a judicial proceeding, procured another person (Karl Brooks) to intentionally destroy or render that data illegible, with intent to prevent its use as evidence. The second count charged an attempt to commit the same offence, included as an alternative on the basis that the data destruction may have been only partially successful.

Both counts were laid under section 39 of the Crimes Act 1914 (Cth), which makes it an offence to intentionally destroy or render illegible a thing known to be or likely to be required in evidence in a judicial proceeding, with intent to prevent its use in evidence. The Crown's case relied on expert computer evidence from a witness named Bussing. That evidence, however, changed materially between the witness's October 2006 statement and what he was prepared to say at trial, undermining the factual basis for the attempt count.

At the close of the Crown case, the accused applied for directed verdicts of acquittal on both counts. A directed verdict is a ruling by the judge that the evidence is legally insufficient to sustain a conviction, so the matter should not go to the jury at all.

  • Whether, at the close of the Crown case, there was sufficient evidence to support the alternative attempt count, given the expert witness had abandoned key parts of his earlier opinion
  • How section 39 of the Crimes Act 1914 (Cth) should be construed in light of the fault and physical element framework in Chapter 2 of the Criminal Code Act 1995 (Cth)
  • Specifically, whether the prosecution was required to prove that the accused knew the relevant judicial proceeding was a federal (Commonwealth) judicial proceeding, not merely a judicial proceeding of any kind
  • Whether, absent evidence of that knowledge, a directed verdict of acquittal on the first count was compelled

Decision

Fullerton J withdrew the second (attempt) count from the jury at the close of the Crown case. Once the expert witness abandoned the opinion that a low-level format may have been only partially successful, there was no longer any evidential basis on which the attempt count could be left to the jury. Her Honour noted that, in any event, the reasoning on the first count would have caused the second count to fail as well.

On the first count, the central issue was statutory construction. The accused argued that section 39, read through the prism of the Criminal Code (Cth), required the Crown to prove not merely that the accused knew the data may be required in evidence in some judicial proceeding, but that he knew the proceeding in question was a federal judicial proceeding. The Crown contended for a broader reading, under which knowledge of the federal character of the proceeding was not an element the Crown needed to establish.

Fullerton J accepted the accused's construction. Her Honour reasoned that, under sections 3.1 and 3.2 of the Criminal Code (Cth), every physical element of an offence carries a fault element unless the legislature expressly provides otherwise. The phrase "is or may be required in evidence in a judicial proceeding" contains a circumstantial element, namely the nature of the proceeding, and no provision in section 39 displaces the default fault element of knowledge in relation to it. Parliament had, in reviewing Commonwealth offences in 2000 and 2001, expressly designated certain physical elements as matters of strict or absolute liability in other provisions, but made no such provision for section 39.

Her Honour concluded that to adopt the Crown's reading would be unreasonable and contrary to the plain words of the section. Because there was no evidence that the accused was at any relevant time aware that the data may be required in federal judicial proceedings specifically, the essential fault element was not made out. A directed verdict of not guilty was entered on both counts.

Orders Made

  • Directed verdict of not guilty entered on the first count (procuring destruction of evidence under section 39, Crimes Act 1914 (Cth))
  • Directed verdict of not guilty entered on the second count (attempt to commit the same offence), which had also been withdrawn from the jury

Key Takeaways

  • Under section 39 of the Crimes Act 1914 (Cth), construed through Chapter 2 of the Criminal Code Act 1995 (Cth), the prosecution must prove that the accused knew the judicial proceeding in which the evidence may be required was a federal judicial proceeding. Awareness of a proceeding in general is insufficient.

  • The default rule in the Criminal Code (Cth) framework is that every physical element of an offence attracts a corresponding fault element. Strict or absolute liability for a physical element requires express legislative provision, and none existed in section 39.

  • Parliament's deliberate choice, during the 2000 and 2001 harmonisation review of Commonwealth offences, not to designate any element of section 39 as strict or absolute liability reinforced the conclusion that knowledge of the federal character of proceedings is required.

  • A directed verdict is appropriate where, at the close of the Crown case, evidence of an essential element is entirely absent. Here, the Crown conceded that if the accused's construction of section 39 was correct, a directed verdict was the inevitable result.

  • The Supreme Court noted that, at the time of the decision, no other court in the Commonwealth had apparently prosecuted anyone under section 39, and the precise argument on the fault element had not previously been determined.

Legislation and Cases Referenced

Legislation
- Acts Interpretation Act 1901 (Cth)
- Crimes Act 1914 (Cth), section 39
- Criminal Appeal Act 1912 (NSW)
- Criminal Code Act 1899 (Qld)
- Criminal Code Act 1995 (Cth), chapters 2 and 11, sections 2.1, 3.1, 3.2, 11.3, 131.1, 132.1
- Law and Justice Amendment (Application of Criminal Code) Bill 2000 (Cth)

Cases
- Beckwith v R (1976) 135 CLR 569
- Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
- R v Ensbey; ex parte A-G (Qld) [2004] QCA 335
- R v Selim [2007] NSWSC 322 (related earlier judgment in same proceedings)
- Selim v Regina [2006] NSWCCA 378 (earlier Court of Criminal Appeal proceedings)
- The Queen v Lavender (2005) 222 CLR 67