Citation: R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Limited [2016] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 25 November 2016
Judges: Ward JA, Garling J, N Adams J (judgment delivered by N Adams J)
Background
A corporate importer and two of its directors faced charges under s 134.2 of the Criminal Code (Cth) of dishonestly obtaining a financial advantage from a Commonwealth entity by deception. The Crown alleged that the company imported aluminium road wheels from China and falsely represented to Customs that those wheels originated in Malaysia, thereby avoiding anti-dumping and countervailing duties that would otherwise have applied.
The investigation began in November 2011. In August 2013, Customs executed a search warrant issued under s 198 of the Customs Act 1901 (Cth), seizing a computer and business records from the company's premises. Criminal proceedings were not commenced until June 2014. The material seized included email chains, MSN chat logs, and Skype communications between directors discussing strategies for avoiding dumping duty, along with shipping documents, invoices, and bills of lading.
Before the jury was empanelled at trial, the respondents applied to exclude the seized material. On the same day the voir dire commenced, Australian Federal Police executed a further search warrant under s 3E of the Crimes Act 1914 (Cth) at the Sydney office of the CDPP, seizing the documents the respondents had sought to exclude. After an eleven-day voir dire, the District Court judge excluded the evidence. The Commonwealth Director of Public Prosecutions appealed to the Court of Criminal Appeal under s 5F(3A) of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the evidence ruling "eliminates or substantially weakens" the prosecution's case, thereby conferring jurisdiction on the Court of Criminal Appeal to hear the appeal under s 5F(3A)
- Whether the relevant dumping duty notices were void for jurisdictional error, and whether a collateral challenge to those notices was available in the criminal proceedings
- Whether the trial judge erred in her interpretation of s 203R of the Customs Act, which governs the use of material obtained under a Customs search warrant
- Whether the trial judge erred in excluding the evidence under s 138 of the Evidence Act 1995 (NSW), which requires a court to exclude improperly or illegally obtained evidence unless the desirability of admitting it outweighs the undesirability of doing so
Decision
The Court of Criminal Appeal first considered whether the threshold requirement for the appeal was satisfied: the exclusion of evidence must "eliminate or substantially weaken" the prosecution's case. Given that the Crown's case was entirely circumstantial and depended on inferences drawn from the seized material, the Court accepted that the ruling met this threshold.
On the interpretation of s 203R of the Customs Act, the trial judge found that once criminal proceedings were initiated, the seized material could only be used for those proceedings and not retained indefinitely for investigative purposes under the Customs Act regime. The Court of Criminal Appeal found no error in that interpretation.
Regarding the s 3E warrant, the Court considered whether the re-seizure of material that was already held at the CDPP could constitute evidence being "obtained" improperly within the meaning of s 138 of the Evidence Act. The Court accepted the word "obtained" extended to the retention of material as a result of an impropriety, and that even if retention alone were insufficient, the execution of the s 3E warrant at the CDPP premises to re-seize the material clearly fell within that concept.
On the s 138 balancing exercise, the Court applied the principles from House v the King (1936) 55 CLR 499, which require an appellate court to show that a discretionary decision was unreasonable or plainly unjust before interfering. The Court found that the trial judge's balancing exercise involved the application of general principles about coercive powers, that her findings were open on the evidence, and that no error had been demonstrated. The appeal was dismissed.
Orders Made
- The appeal was dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that s 5F(3A) of the Criminal Appeal Act 1912 (NSW) requires the Crown to show that an evidentiary exclusion eliminates or substantially weakens the prosecution's case before the court will entertain an interlocutory Crown appeal.
- Where a Crown prosecution case rests entirely on circumstantial evidence drawn from seized material, exclusion of that material will generally satisfy the threshold for a competent Crown appeal.
- Under s 203R of the Customs Act, material seized pursuant to a Customs search warrant is subject to statutory limitations on use once the investigative purpose shifts to criminal proceedings; retaining material beyond those limits can constitute an impropriety for s 138 Evidence Act purposes.
- The re-seizure of documents already held at a prosecutor's office by executing a further search warrant at that office can constitute "obtaining" evidence improperly within the meaning of s 138 of the Evidence Act 1995 (NSW).
- In dismissing the appeal, the Court reinforced that an appellate court will not interfere with a trial judge's s 138 balancing discretion unless the decision was unreasonable or plainly unjust, consistent with the standard in House v the King.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), s 134.2
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Customs Act 1901 (Cth), ss 198, 203R, 203S, 269TG, 269TJ
- Crimes Act 1914 (Cth), ss 3E, 3C(1)
- Evidence Act 1995 (NSW), s 138
- Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(b)
- Criminal Procedure Act 1986 (NSW), ss 141(1)(b), 143
Cases
- House v The King (1936) 55 CLR 499
- George v Rockett (1990) 170 CLR 104
- Ousley v The Queen (1997) 192 CLR 69
- Chief Executive Officer of Customs v Labrador Liquor Pty Ltd (2003) 216 CLR 49
- Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
- GM Holden Ltd v Commissioner of the Anti-Dumping Commission (2014) 225 FCR 222
- Parker v Comptroller-General of Customs [2007] NSWCA 348
- DPP v Carr [2002] NSWSC 194