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Court of Criminal Appeal 19 December 2008

Kessing v R

[2008] NSWCCA 310

Also reported as 73 NSWLR 22
Public order & justice offences
CRIMINAL LAW S 70 CRIMES ACT (CTH) DEPARTURE FROM PARTICULARS MISDIRECTION OF LAW APPLICATION OF PROVISO EVIDENCE

Citation: Kessing v R [2008] NSWCCA 310
Court: NSW Court of Criminal Appeal
Date: 19 December 2008
Judge(s): Bell JA; Rothman J; Price J

Background

The appellant was a former officer of the Australian Customs Service stationed at Sydney Kingsford Smith Airport as part of an Air Border Security intelligence unit. On 10 May 2005, he resigned from the Service. On 31 May 2005, two articles appeared in a major national newspaper containing paraphrased and directly quoted material from two confidential internal security reports, one assessing contracted security personnel and one analysing a broader range of airport workers.

A subsequent investigation by the Australian Federal Police uncovered copies of both reports at the appellant's home and his mother's home, along with contact details for one of the journalists. Telephone records showed multiple calls from those addresses to the newspaper's offices and to the journalist's personal numbers during May 2005. The appellant had also signed an official secrets acknowledgment upon resignation, confirming he understood his ongoing duty not to disclose Commonwealth information.

The appellant was convicted after trial before Bennett DCJ and a jury in the District Court on a charge under s 70(2) of the Crimes Act 1914 (Cth): communicating the contents of a document which came into his possession as a Commonwealth officer and which it was his duty not to disclose. He was sentenced to nine months imprisonment, suspended on a recognizance. He appealed against conviction on ten grounds.

  • Whether the verdict was unreasonable or unsupported by the evidence
  • Whether the trial judge erred in directing the jury that it was sufficient for the Crown to prove communication to either journalist named in the indictment, rather than both
  • Whether the newspaper edition was admissible, or whether it constituted inadmissible hearsay
  • Whether the trial judge should have given a statutory unreliability warning under s 165 of the Evidence Act 1995 (NSW) in relation to the newspaper
  • Whether a Jones v Dunkel direction should have been given, allowing the jury to draw an adverse inference from the failure to call certain witnesses
  • Whether the trial judge misdirected the jury in response to questions posed during deliberations (on two separate occasions)
  • Whether the trial judge erred in directing that the Crown was not required to prove all contents of the reports were communicated, or that communication could occur indirectly
  • Whether two further pieces of evidence (a witness's testimony and a series of emails) were wrongly admitted

Decision

The Court of Criminal Appeal dismissed the appeal, with all three judges agreeing in the reasons of Bell JA.

On the central evidentiary grounds, the Court held that the newspaper edition was not hearsay in the relevant sense. The by-line identifying the journalists fell within the evidence of the document itself rather than an out-of-court statement offered to prove its truth. The Court also found no error in the trial judge's refusal to give a s 165 unreliability warning or a Jones v Dunkel direction in the circumstances presented.

The Court accepted that the trial judge had given an erroneous direction in responding to jury questions, specifically regarding the legal elements of the offence under s 70(2). However, the Court applied the proviso under the Criminal Appeal Act 1912 (NSW): even where a misdirection occurs, an appeal may be dismissed if no substantial miscarriage of justice actually resulted. The Court was satisfied the circumstantial case was so powerful that the overwhelming inference was that the appellant had communicated the contents of at least one of the reports to the journalist. The erroneous direction did not affect the outcome.

On the sufficiency of evidence ground, the Court found the prosecution case was strong. The appellant had retained copies of both confidential reports after his resignation in breach of his acknowledged obligations, his contact details for the journalist were found alongside those reports, and telephone records placed calls to the journalist from locations connected to him around the time of publication. While the evidence did not entirely exclude the possibility that another officer had been the source, the cumulative weight of the circumstantial evidence supported guilt beyond reasonable doubt.

Orders Made

  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the proviso under the Criminal Appeal Act 1912 (NSW) can be applied to dismiss a conviction appeal even where a misdirection of law occurred at trial, provided the court is satisfied no substantial miscarriage of justice actually resulted.
  • A conviction under s 70(2) of the Crimes Act 1914 (Cth) does not require direct proof of the precise mechanism of communication; the Crown may establish the offence through circumstantial evidence, including records of contact between the defendant and the recipient and physical possession of the disclosed documents.
  • The Court held that a newspaper by-line does not fall within the "s 70 writing placed on a document" exception for hearsay purposes under the Evidence Act 1995 (NSW), making the newspaper itself admissible as a document rather than as a hearsay statement.
  • Retention of confidential government documents after resignation, combined with evidence of contact with a journalist and matching publication content, can constitute a powerful circumstantial case even in the absence of direct evidence of communication.
  • In dismissing the appeal, the Court noted that security measures around confidential documents being imperfect does not, of itself, raise a rational hypothesis sufficient to displace an otherwise compelling circumstantial case against a particular accused.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 70(2)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW), ss 70, 165

Cases:
- Director of Public Prosecutions (Cth) v Sexton [2008] NSWSC 152
- Dyers v R [2002] HCA 45; (2002) 210 CLR 285
- Gassy v R [2008] HCA 18; (2008) 82 ALJR 838
- Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
- M v R [1994] HCA 63; (1994) 181 CLR 487
- Myers v DPP [1965] AC 1001
- Nudd v R [2006] HCA 9; (2006) 80 ALJR 614
- R v Dossi (1918) 13 Cr App R 158
- R v Kelly [2006] VSCA 221
- R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450
- R v Nationwide News Pty Ltd (VSC, 22 December 1997, unreported)
- R v VHP (Court of Criminal Appeal, 7 July 1997, unreported)
- Weiss v R [2005] HCA 81; (2005) 224 CLR 300
- Wilde v R [1988] HCA 6; (1987-1988) 164 CLR 365