New South Wales Court of Criminal Appeal CITATION: SELIM v REGINA [2006] NSWCCA 378 HEARING DATE(S): 10 November 2006 JUDGMENT DATE: 10 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 38; Rothman J at 40 DECISION: 1. Leave should be refused; 2. Application dismissed. CATCHWORDS: CRIMINAL LAW - 5F APPEAL - validity of indictment - duplicity - latent - patent - meaning of " contemplation of judicial proceedings" - whether leave to appeal should be granted - principles applying to appeals of interlocutory decisions Criminal Appeal Act 1912 (NSW) Crimes Act 1914 (Cth) LEGISLATION CITED: Criminal Code (Cth) Criminal Procedure Act 1986 (NSW) Trade Practices Act 1974 (Cth) Therapeutic Goods Act 1989 (Cth) Kang v Kwan [2002] NSWSC 1187 R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 CASES CITED: R v Janceski (2005) 64 NSWLR 10 R v O'Halloran (2000) 182 ALR 431 Romeyko v Samuels (1972) 2 SASR 529 PARTIES: James Selim (Appl) The Crown FILE NUMBER(S): CCA 2006/2572 COUNSEL: P Byrne SC/G Bashir/S Buchen (Appl) P S Hastings QC/R J Bromwich (Crown) SOLICITORS: Aitken McLachlan Thorpe Lawyers (Appl) Commonwealth Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0708 LOWER COURT JUDICIAL OFFICER: Sorby DCJ LOWER COURT DATE OF DECISION: 7 November 2006 IN THE COURT OF CRIMINAL APPEAL 2006/2572 McCLELLAN CJ at CL HULME J ROTHMAN J FRIDAY 10 NOVEMBER 2006 SELIM, James v REGINA Judgment 1 McCLELLAN CJ at CL: The applicant, James Selim, applies for leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 in respect of rulings made by Sorby DCJ on Tuesday, 7 November 2006. Those rulings arose from applications made on behalf of the applicant after the Crown opening to the jury at his retrial on two alternative charges arising from s 39 of the Crimes Act 1914 and 11.3 of the Criminal Code (Commonwealth). 2 The applicant is the former Chief Executive Officer and majority shareholder of Pan Pharmaceutical Limited, which is now in liquidation. As I understand the Crown case, it is that on the afternoon of Thursday, 30 January 2003, the applicant directed the former IT manager at Pan, Mr Karl Brooks, to wipe the hard drive of a Pan computer that contained original data from the testing of a travel sickness medication known as Travacalm, so that this data could not be recovered. 3 The evidence, as I understand it, is that the original data was, to the knowledge of the applicant, sought by auditors of the Therapeutic Goods Administration during the course of an audit that had commenced that day, and was continuing the next day. 4 The Crown case is that the computer data was manipulated prior to printing, in the second half of 2002, to produce compliant test results for Travacalm, without affecting the original data. This manipulation, it is said, had enabled Travacalm tablets, that should have been rejected due to serious manufacturing defects, to be able to be approved for sale, and in fact, sold on the Australian market in late 2002. The defects are alleged to have caused the tablets to have highly variable doses of active ingredients ranging from none at all to up to seven times the correct dose. 5 Some of the excess dose tablets that were consumed resulted in serious adverse reactions for a number of consumers, resulting in the audit by the Therapeutic Goods Administration and a product recall taking place in January 2003 for all of the product Travacalm that had been released for sale. 6 Section 39 of the Crimes Act (Commonwealth) provides: "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 Section 11.3 of the Commonwealth Criminal Code provides that: "A person who: (a) has, in relation to each physical element of an offence, a fault element applicable to that physical element; and (b) procures conduct of another person that (whether or not together with conduct of the procurer) would have constituted an offence on the part of the procurer if the procurer had engaged in it: is taken to have committed that offence and is punishable accordingly." 8 "Judicial proceeding" is defined by reference to Federal judicial proceedings. 9 The indictment which was presented on Monday of this week is in substantially the same terms as that which was presented at the applicant's first trial, which commenced on 13 March 2006. As I understand it, the charges in the former indictment were not changed in any material way in the most recent indictment. 10 The first trial took place over a number of days until the jury was discharged following an application by the Crown. During the course of that trial, the substance (although not with the same degree of detail) of the points now raised were agitated before the then trial judge, who ruled in each case against the applicant. 11 The debate and resolution of the same matters in the present trial has been made by the trial judge, conscious of the rulings of the earlier trial judge, and the reasons of the former judge have been substantially followed by the judge in the present trial. 12 The prosecution case is that the applicant knew that the computer data of Pan may be required in a judicial proceeding and with that knowledge, procured the destruction or rendering of that data illegible by Mr Brooks, or procured an attempt to have that take place. Mr Brooks has apparently stated that following the direction from the applicant, he downloaded specialist reformatting software from the suppliers of the hard drive used by Pan and used it to overwrite the data in a way that rendered it irrecoverable. 13 The Crown case contemplates that in addition to the matters to which I have referred, the applicant effectively gave Mr Brooks a command to dispose of evidence in prospective judicial proceedings. The Crown case is that the applicant was aware of the real possibility of, firstly, product liability claims under the Trade Practices Act 1974 (Cth), because of conversations he had already had with the Managing Director of the customer to whom Pan supplied the Travacalm, being Key Pharmaceuticals (known as the sponsor of Travacalm), and because of adverse reactions and the recall of the Travacalm; secondly, an administrative decision which he knew had been made to restrict or revoke Pan's licence, both of which ultimately happened and, as a result, a judicial review challenge to such an administrative decision, (because that was the first thing that he had himself threatened when told by the Therapeutic Goods Administration of a licence restriction being imposed the following Monday, which was 3 February 2003); and thirdly, that he was aware of the real possibility of Pan being prosecuted for an offence under the Therapeutic Goods Act 1989 (Cth) because, the Crown will submit, that was a highly predictable outcome of the Therapeutic Goods Administration investigation and any subsequent investigation. 14 The application which the applicant brings to this Court depends on a grant of leave pursuant to section 5F(3)(a). An application was made to the trial judge for the relevant certificate under the section, but that was denied. The grounds upon which the applicant seeks to pursue an appeal are three, and may shortly be described as follows: 15 Ground 1 - alleged duplicity in the indictment by the use in the indictment of the words from s 39 of "destroys it or renders it illegible or indecipherable or incapable of identification". 16 Ground 2 is an allegation of latent duplicity in the indictment by reason of reliance on more than one kind of judicial proceeding being in the contemplation of the accused. 17 Ground 3 is framed in terms of an alleged error as to the test to be applied in establishing the state of mind of the accused as to the knowledge that he had, that a thing may be required in evidence in a judicial proceeding. 18 The Crown submitted that the first ground of appeal raises a matter which, if the submission is correct, is a patent deficiency in the indictment. Accordingly, it is submitted that the applicant is advancing an objection to the indictment for a formal defect which is apparent on its face. Section 17 of the Criminal Procedure Act 1986 requires that such an objection be brought before the jury is sworn at the trial. 19 Senior counsel for the applicant has indicated to this Court that an objection was not made to the indictment before the jury was sworn. Indeed, it was not made until after the jury had been sworn, and the Crown Prosecutor had opened the Crown case. It was submitted that this course was taken because, being aware that matters said to be latent defects in the indictment, were also to be raised it was convenient, in counsel's opinion, for those matters to be raised at the one time. 20 When questioned as to the appropriate understanding of s 17(1) and the use of the word "must" in relation to the obligation as to the time at which the objection must be taken, senior counsel submitted that this Court should understand the use of that word to mean "should be" understood. It was submitted that it merely defined a procedural requirement, which does not rise to a mandatory obligation. 21 I do not accept that submission. In my opinion, the word "must" in the section should be given its ordinary meaning and full force should be given to it. To my mind, there was a clear legislative purpose in providing s 17 in the form in which the Legislature has made it. This was to ensure that the trial process was able to proceed efficiently and, in particular, that jury persons would not be unnecessarily or unreasonably inconvenienced by either adjournments or, as may happen if the indictment was found relevantly defective, the jury being discharged. 22 It may be - although I express no concluded view on the matter - that s 17 does not operate to bar an appeal to this Court following a conviction: see R v Janceski (2005) 64 NSWLR 10 at, in particular, 55. However, it is unnecessary to consider that matter. 23 Apart from the problem which the applicant faces by reason of s 17, it is also necessary for him to persuade this Court that leave should be granted in any event. 24 In my opinion, leave should be refused in relation to each of the grounds for the reason that I am not persuaded that any of the grounds has sufficient prospects of success if this Court proceeded to determine them. 25 With respect to ground 1, in my view, as I presently understand the position, the words in s 39, which describe the activity giving rise to the offence, are no more than different characterisations of the proscribed conduct. 26 This issue has been addressed on a number of occasions. In particular, in Romeyko v Samuels (1972) 2 SASR at 529 and 552, the Chief Justice of South Australia made plain that legislation may operate to penalise a single act if that act had one or more forbidden characteristics, or was comprised of one or more different acts: see also R v O'Halloran (2000) 182 ALR 431 at 450-2. 27 At the first trial Geraghty DCJ summarised his opinion in relation to this aspect of the matter by saying that a charge under s 39: "involves an allegation that someone performs one activity, of so dealing with data which was likely to be used in evidence in such a way as to make it unavailable, to prevent it being used in evidence." 28 It seems to me, that this is an appropriate way of describing the operation of the section and, for that reason, I am of the view that the applicant's argument has little, if any, prospect of success on this ground of appeal. 29 In relation to count 2, the Crown submitted that the applicant is again barred by s 17(1) from pursuing that matter in this Court. I do not hold that view, for it seems to me that the argument, as I understand it, does not raise a formal defect, on the face of the indictment, of the nature contemplated by the section. 30 However, as I have already indicated, in my view, leave under s 5F should also be refused for the reason that the ground has little, if any, prospect of success. 31 In my opinion, s 39 has the stated purpose of preventing interference by a person in the administration of justice by the destruction of a "book, document or other thing of any kind which may be used in evidence in a judicial proceeding". 32 The applicant submitted that before the indictment could be made good and the prosecution succeed, the Crown must identify a particular judicial proceeding, which must be specified. In the alternative, it is submitted that before it will be adequately particularised, the Crown must identify a particular Federal proceeding in respect of which it is said that the applicant destroyed the relevant item, having the intent to prevent it from being used in evidence in those identified proceedings. 33 As presently advised, I do not accept that submission. It seems to me, that the section is directed at ensuring that relevant items are not destroyed or otherwise dealt with in the manner prohibited by the section at any time when the person effecting the relevant destruction or dealing may reasonably have in contemplation that a judicial proceeding may take place in the future, in which the items may be required in evidence. The section operates so that a person commits an offence if they effect the relevant destruction or other act at a time when there may be a reasonable possibility of judicial proceedings, although the particular proceedings may not at that time be capable of being identified. 34 If the section was to operate in the way the applicant suggested, it would have a very narrow effect. Indeed, it would operate to encourage the destruction of items at an early date being a point in time where a person may have in mind that judicial proceedings may take place, but because those proceedings have either not commenced or cannot, with particularity, be identified at that point in time, an offence is not committed. It would seem to me that this construction of this section is wholly inconsistent with the policy which lies behind it. 35 In relation to the third ground of appeal, again I am of the view that leave should be refused. It raised for consideration the test which should be applied to the state of mind of an accused person with respect to the knowledge which they hold that the relevant item may be required in a judicial proceeding. 36 As I understand it, the trial judge has not yet ruled in relation to that matter, and it has not been effectively argued before him. For that reason, the question is premature. However, beyond that, it seems to me that that question is appropriately addressed, having regard to the evidence which is ultimately accepted at the trial. The issue can be determined at the point in time at which his Honour is formulating directions, if the trial proceeds to that point. 37 Accordingly, in my view, leave should be refused. 38 HULME J: I agree with the order proposed by the presiding judge, and substantially for the reasons given by his Honour. I regard the appellant's arguments on the construction of s 39 as insufficiently strong to justify the grant of leave and the consequent interruption to the trial at this stage. 39 I would add that I agree with the presiding judge as to the operation of section 17 and its effect in this case. 40 ROTHMAN J: I agree with the orders proposed by the Chief Judge at Common Law. I do so for the following reasons. 41 In relation to the first ground of appeal, which is essentially the ground relating to duplicity, the argument of the appellant depends on leave being granted under s 5F(3) of the Criminal Appeal Act 1912 and on the provisions of s 17 of the Criminal Procedure Act 1996. Both of these Acts implement the same legislative purpose. That purpose is that jury trials, once commenced, ought not be the subject of interference, other than in exceptional circumstances. However, the objection to the indictment is fundamental and, if correct, would seem to require the quashing of any conviction that arose. Such an outcome is the necessary effect of not interfering with jury trials and causes no injustice because the position of the applicant, if a conviction should result from the indictment, is fully protected. 42 I agree with the reasons of McClellan CJ at CL on this First Ground, except that I reserve for another day the meaning of "must" in s 17 of the Criminal Procedure Act. 43 My preliminary view is that each of the terms in s 39 of the Crimes Act 1914 (Cth): "destroys it"; "renders it illegible or indecipherable"; and "incapable of identification", are species of the one genus which describes an effect of the prohibited conduct and does not give rise, at least on a preliminary view, to an arguable point on duplicity. 44 As to the question of "judicial proceeding" (the Second Ground) it seems to me, on a preliminary view, that because of the definition of "judicial proceeding" in the Act, it must be confined to a justiciable controversy within the terms of Chapter III of the Constitution. The knowledge that one's conduct may be unlawful together with the fact that there is a complaint or an investigation made or undertaken, does not lead to the conclusion that one knows that the relevant item is or may be required in evidence in a judicial proceeding or, in other words, that federal proceedings will ensue: cf R v Ensbey; ex parte A-G (Qld) [2004] QCA 335. 45 I take the preliminary view that the proceedings need to be more than a mere possibility: see by analogy, Kang v Kwan [2002] NSWSC 1187. There is a strong argument both ways. However, any unfairness that is involved in the lack of specificity may be overcome by the provision of particulars, and I note that his Honour the trial judge expressed concern about the lack of particularity. It is a matter that has not yet been fully agitated before his Honour below, and again it is a matter where, if his Honour rules incorrectly, the applicant will be fully protected in any appeal. 46 For those reasons, I join in the orders proposed. ********** 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.