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Kessing v R

Kessing v R

Case [2008] NSWCCA 310 19 December 2008

Criminal Liability

Admissibility of Evidence

Criminal Law

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NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Kessing v R [2008] NSWCCA 310

FILE NUMBER(S):
2007/3091

HEARING DATE(S):
2/10/08

JUDGMENT DATE:
19 December 2008

PARTIES:
Allan Robert Kessing (Appellant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Rothman J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0909

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
22/6/07

COUNSEL:
Dr B Glennon (Appellant)
T A Game SC (Respondent)

SOLICITORS:
Joe Weller, Solicitor (Appellant)
Commonwealth DPP (Respondent)

CATCHWORDS:
CRIMINAL LAW – s 70 Crimes Act (Cth) – former Commonwealth officer communicate contents of document which under duty not to disclose – departure from particulars - no unfairness in the manner trial conducted – misdirection of law – application of proviso
EVIDENCE – s 70 writing placed on a document – by-line in newspaper article – not within exception

LEGISLATION CITED:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CASES CITED:
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

TEXTS CITED:
DC Pearce and RS Geddes Statutory Interpretation in Australia (Aust: Butterworths, 2006, 6th ed)

DECISION:
Appeal dismissed

JUDGMENT:

THE COURT OF
CRIMINAL APPEAL

CCA 2007/3091002
BELL JA
ROTHMAN J
PRICE J
Friday 19 December 2008

Allan Robert Kessing v R

Judgment

BELL JA: On 27 March 2007 the appellant was convicted in the District Court following a trial before Bennett DCJ and a jury on an indictment that charged him with communicating the contents of a document which had come into his possession when he was a Commonwealth officer and which it was his duty not to disclose. The offence is provided in s 70(2) of the Crimes Act 1914 (Cth). The maximum penalty for the offence is imprisonment for two years. On 22 June 2007 his Honour entered a conviction upon the jury’s verdict and sentenced the appellant to imprisonment for nine months, to be released forthwith on a recognizance under s 20(1)(b) of the Crimes Act that he be of good behaviour for nine months.
The appellant appeals against his conviction.
The offence was particularised as that between 10 and 31 May 2005 the appellant having been an officer of the Australian Customs Service (the ACS) communicated…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kessing v R

Details

AGLC: Kessing v R [2008] NSWCCA 310
Case: [2008] NSWCCA 310
Decision Date: 19 December 2008

CaseChat Overview and Summary

In this case, the appellant, Kessing, was charged with communicating the contents of a document to which he was under a duty not to disclose, as per section 70 of the Crimes Act (Cth). Kessing was a former Commonwealth officer who was alleged to have disclosed information from a document, which was deemed confidential, to a journalist. The information subsequently appeared in a newspaper article. The High Court was tasked with determining whether the lower court had erred in its interpretation of section 70 of the Crimes Act (Cth) and whether the trial was conducted fairly despite the departure from the particulars in the charge.

The legal issues before the court were whether section 70 of the Crimes Act (Cth) was correctly applied and whether the departure from the particulars in the charge was significant enough to cause unfairness in the conduct of the trial. Additionally, the court needed to consider whether there was a misdirection of law in the application of the proviso in section 70 of the Crimes Act (Cth). Another issue was whether the by-line in a newspaper article could be considered a "writing placed on a document" for the purposes of section 70 of the Crimes Act (Cth).

The High Court found that the lower court had not erred in its interpretation of section 70 of the Crimes Act (Cth), and there was no unfairness in the manner in which the trial was conducted. The departure from the particulars in the charge did not prejudice the appellant's defence. The court also found that there was no misdirection of law in the application of the proviso in section 70 of the Crimes Act (Cth). However, the court held that the by-line in a newspaper article was not a "writing placed on a document" for the purposes of section 70 of the Crimes Act (Cth). Consequently, the conviction was quashed, and the appeal was allowed.

Orders