R v El-Zeyat

[2002] NSWCCA 138

CITATION:	R v El-Zeyat [2002] NSWCCA 138 revised - 08/02/2005
FILE NUMBER(S):	CCA 60724/01
HEARING DATE(S):	4/2/02
JUDGMENT DATE:	3 May 2002
PARTIES :	Regina Naseam El-Zeyat
JUDGMENT OF:	Wood CJ at CL at 1; Sully J at 61; Dowd J at 71

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0645
LOWER COURT JUDICIAL OFFICER :	Backhouse DCJ

COUNSEL :	R C Pontello (App) R A Hulme (Crown)
SOLICITORS:	S E O'Connor (Crown)
CATCHWORDS:	Criminal Law - Hinder discovery of evdience concerning a serious inditable offence - tamper and assist with disposal of vehicle - whether specific or general knowledge of offence required - statutory interpretaton.
LEGISLATION CITED:	Crimes Act 1900 Interpretation Act 1987
CASES CITED:	Bahri Kural v The Queen (1987) 162 CLR 502 Beckwith v The Queen (1976) 135 CLR He Kaw Te v The Queen (1985) 157 CLR 523 Kingswell v The Queen (1985) 159 CLR 264 M v The Queen (1994) 181 CLR 487 Murphy v Farmer (1988) 165 CLR 19 R v Bright [1916] 2 KB 441 Regina v CWW (1933) 32 NSWLR 348 R v Stone (1981) VR 739 R v Tevendale (1955) VLR 95
DECISION:	Appeal allowed. Conviction and sentence quashed. A verdict of acquittal entered.

- 22 -IN THE COURT OF

60724/01

WOOD CJ at CL
SULLY J
DOWD J

Friday 3 May 2002

Regina v Naseam El Zeyat

Judgment

1 WOOD CJ at CL: On 2 October 2001, the appellant was indicted before her Honour Judge Backhouse QC at the Sydney District Court on the following charge:

That he on 17 July 1998 at Punchbowl in the State of New South Wales did tamper with and assist in the disposal of a car, registration number VFU 560, with intent to hinder the discovery of evidence concerning a serious indictable offence committed by a person or persons unknown. (s. 315(1) Crimes Act 1900 , maximum penalty: imprisonment for 7 years). (Emphasis added).

2 The appellant pleaded not guilty and was tried before her Honour and a jury of twelve. On 5 October 2001 the jury returned a verdict of guilty.

3 He now appeals against the conviction, but not against the sentence which was imposed, of imprisonment for a term of 12 months, with a non-parole period of 6 months.

FACTS

4 On 17 July 1998, the occupants of a red Mitsubishi station wagon, registration number VFU 560, became involved in an altercation with three men outside the Five Dock Hotel. One of the occupants of the vehicle, said to be Michael Kanaan, produced a firearm and fired a number of shots in their direction. As a result, two of the men died and the other was injured. After the shots were fired the vehicle was driven away from the scene. Its registration number was recorded by a bystander, and a police search for it was immediately commenced.

5 A witness, given the pseudonym Alan Rossini, was called in the Crown case. He had been given an immunity in relation to certain drug charges, and an undertaking that the evidence that he gave in this trial would not be used against him, unless it was false.

6 Rossini said that he had been seated in the front passenger seat of the vehicle, of which Shadi Derbas was the driver. Michael Kanaan, he said, was seated in the rear of the vehicle with Bassim Kazzi and a “young Lebanese guy”.

7 There was an altercation he said, between the occupants of the car outside the Five Dock Hotel, in the course of which he had a fist fight and lost his mobile phone. Kanaan, he said, fired shots at the three men. Bassim Kazzi, he said, was also involved in a fight, and received a hit in the mouth.

8 Rossini said that as they drove from the scene of the shooting, to Telopea Street Punchbowl, Derbas made two telephone calls on his mobile phone. He heard him say, “turn the scanner on and see if my car’s come up and call me back”.

9 Next, Rossini said, when they reached the address in Punchbowl which he believed was that of Derbas’ parents, the vehicle was driven through the driveway, towards the back of the house. He said that as they pulled into Telopea Street, Derbas and Kanaan had each given instructions not to speak to anyone about what had happened. Rossini agreed that there was no subsequent conversation in relation to anyone having been shot.

10 When he and the other occupants left the vehicle, there were a number of other persons present, who were standing it its near vicinity. They included Mohamed Dib, the appellant (who he referred to as “Sam Erdit” or “Little Erdit”), “Slow George” (Khouri) and a few other “Telopea Street Boys”. Durbas, he said, remarked “the car’s come up on the scanner”, and gave directions for it to be moved into the carport as there were already helicopters in the air. Additionally, he gave instructions to “two young Lebanese guys to go down to the end of the street to look out for D’s”.

11 Rossini said that the car was moved a couple of metres. Derbas told “Slow George” to get some cans of degreaser. When he returned, Derbas said “I can’t lose the car; we’ll just have to degrease it to get rid of fingerprints and saliva”.

12 Rossini said that he, the appellant, and a “Lebanese guy” sprayed the inside and outside surfaces of the vehicle with the aerosol degreaser. The appellant, he said, pulled out a seat belt and sprayed and wiped it. While this was happening, he said another “big guy” broke the steering lock of the car. He believed that Dib was using a screwdriver to tamper with the door locks to the vehicle.

13 After 10 to 15 minutes of this work, Rossini said, Derbas instructed “Slow George” to take the car to Roselands and dump it. The appellant was directed to follow “Slow George” in the latter’s van. They were to ring once they had dumped the car. Rossini said that he saw “Slow George” get into the Mitsubishi and the appellant walk down the side of the house. He added that he, Kanaan and Derbas waited for 5 or 10 minutes until Derbas received a phone call, after which he said “it was done”.

14 Rossini said that he had known the appellant for approximately 12 months and had met him many times over that period. The appellant in his evidence acknowledged knowing him and the other persons mentioned in Rossini’s evidence.

15 On 18 July 1998 the vehicle was discovered in the driveway of a property at Roselands. Examination of it revealed a strong odour consistent with that of degreasing chemicals, along with damage to the near side external door lock and to the ignition barrel and casing. An oily type substance was found covering the internal vinyl trim and windows of the vehicle. The damage to the vehicle was however not such as to permit entry to it or a starting of the engine, without the use of a key.

16 The appellant gave evidence in which he denied any involvement with the vehicle, and said that while he could not recall precisely where he had been on 17 July 1998, he knew that he had not been to Telopea Street that day. He was living at that time at Bidwill, a fact confirmed by Leanne Auon and Sheryl El-Zeyat, each of whom gave evidence to that effect, but neither of whom could recall where he had been that day.

17 The appellant suggested that Rossini had a motive to lie, in that in about August or September 1998 he had been involved in a sexual liaison with Rossini’s then girlfriend Sandra, at Kings Cross where she worked as a stripper. He thought that Rossini had discovered the affair and could remember being confronted by him in relation to it somewhere in the city, probably in late December. He said that after he provided an explanation, Rossini’s response was “sweet, no worries” after which he left.

18 Rossini disagreed with the suggestion the he had learned of any such affair, or that he had confronted Rossini with it. The appellant’s wife said that she had no knowledge of it, and did not believe it. Rossini additionally said that a similar “motive” had been put to him by another person charged with a quite separate offence, involving the murder of Edward Lee, when he gave evidence in relation to that matter – the single difference being the proposition, on this occasion, that it was this other accused who had been engaged in an affair with his girlfriend.

19 On 7 February 2000, Rossini took part in an identification procedure, in the course of which he was shown a video containing photographs of a number of people, including the appellant. He identified the appellant as a person “involved in discarding the vehicle”, later adding that “this person took that car that was used in the incident”. He described the vehicle at this stage as “a station wagon, late model, the colour of the car maroony”.

20 Rossini’s reliability and credibility was heavily attacked at the trial, in the light of inconsistencies in the several accounts which he had given, and in the light of the undertaking and/or immunity which he had in relation to the shootings, and in relation to a serious drug offence. However, there was some evidence corroborative, at least of his presence at the time of the shootings, so far as a mobile telephone registered to him was found at the scene.

GROUNDS OF APPEAL

Ground 1 – The Elements of the Offence

21 In the present case, it was beyond question, assuming that Rossini’s evidence was to be accepted, that the accused knew or had reasonable grounds for believing that some offence had been committed, and that it probably was a particularly serious offence. That arises by reason of the flurry of activity which could only have been designed to remove incriminating evidence, the reference to the vehicle having come up on the scanner and to helicopters being in the air, to the posting of lookouts to warn of detectives entering the street, and the disposal of the vehicle.

22 At the close of the Crown case, an application was made for a directed verdict of acquittal, upon the basis that the Crown had not proved that the appellant had known that the person or persons unknown, referred to in the charge, had committed any particular offence.

23 It was accepted by reason of s 313 of the Crimes Act, that the Crown did not have to prove that the appellant knew that the offence had been a “serious indictable” offence. However, it was the defence case at trial, and upon appeal, that it was an essential element of the offence of which the appellant was charged, that he be shown to have been aware of a specific primary offence (being one which in fact amounted to a serious indictable offence) having been committed, and to have tampered with the vehicle with the intention of hindering the discovery of evidence concerning that offence.

24 The application for a directed verdict was dismissed, without any reasons being given. The point raised has relevance for this ground of appeal – in so far as it is maintained that the trial judge erred in not directing an acquittal. It also has relevance for the second ground of appeal – so far as it is submitted that the verdict cannot be supported on the evidence, there being no evidence to show an awareness on the appellant’s part of the fact that the vehicle had been used in a shooting.

25 The charge was preferred under s 315 of the Crimes Act 1900, and carries with it a maximum penalty of imprisonment for 7 years. That section is in the following terms:

“ 315 (1) A person who does anything intending in any way to hinder:
( a) the investigation of a serious indictable offence committed by another person, or
(b) the discovery of evidence concerning a serious indictable offence committed by another person, or
(c) the apprehension of another person who has committed a serious indictable offence,
is liable to imprisonment for 7 years.
(2) For the purposes of subsection (1), a person is to be considered to have committed a serious indictable offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence.
(3) ... ”

26 By s 313, it is provided:

“If it is an element of an offence under this Part that an offence is a serious indictable offence, it is not necessary for the prosecution to establish that the accused knew that the offence was a serious indictable offence. ” (Emphasis added).

27 A serious indictable offence is defined in s 4 of the Crimes Act as an indictable offence which is punishable by imprisonment for life, or for a term of 5 years or more. The primary offences in this matter clearly qualified as such.

28 The directions which were given by the trial judge as to the elements of the offence charged in this case were as follows:

“ Members of the jury, there are two elements in the offence. One, is the act in this case. The allegation is more than one act, but there is the act which it is alleged the accused did on this occasion, that is on 17 July 1998. The second element is that he intended on that occasion to hinder the discovery of evidence concerning a serious indictable offence committed by a person or persons unknown. They are the two elements of which you must be satisfied beyond reasonable doubt before you would find the accused guilty of the offence.”

29 Having given this direction, her Honour identified the several circumstances upon which the Crown relied in support of the second element, that is the intention to hinder the discovery of evidence concerning the primary offence, which it was required to prove. Earlier, when summarising the evidence of Mr Rossini, she had identified the serious indictable offence involved as “the shooting outside the hotel”.

30 The circumstances from which the mental element was to be inferred were identified as follows:

“ …namely, that the accused was present at the address in Telopea Street, Punchbowl, on the evening of 17 July 1998, when the vehicle VFU 560 then being driven by Mr Derbas arrived back at that address in Punchbowl.
Secondly, that the accused did the acts alleged by the Crown, that is participating in the degreasing of the vehicle and then leaving that address on the direction of Mr Derbas.
Thirdly, that the vehicle had come on the scanner, that helicopters were present, that when the car first arrived back, Mr Derbas directed the two young guys to go down to the end of the street to look out for the D’s, …
… and asks you to infer that the vehicle was involved in a serious offence on 17 July 1998. Also that the accused was aware that a serious offence had been committed and in complying with the directions of Mr Derbas, he had the intention to hinder the discovery of evidence concerning a serious offence committed by person or persons unknown .” (Summing Up at 9 and 10) (Emphasis added).

31 After further directions as to the fact finding role of the jury, the drawing of inferences, and the use of circumstantial evidence her Honour repeated the matters upon which the Crown relied as circumstantial proof of the appellant’s intention (Summing Up pages 17-18), observing:

“ It is from these facts… the Crown asks you to infer that the vehicle was involved in a serious indictable offence on the evening of 17 July 1998, that the accused was aware that a serious offence had been committed, and that complying with the directions of Mr Derbas he had the intention to hinder the discovery of evidence concerning a serious offence committed by a person or persons unknown.” (Emphasis added).

32 There was no further direction given in relation to any particular state of knowledge which the appellant needed to have concerning the primary offence, save that when dealing with the Crown submissions, her Honour said:

“ So far as the communications between the persons back at the address at Telopea Street, her submission to you is that it was very much on a need to know basis, and that the accused knew there had been an offence . Her submission to you was that there was no other explanation except the car was used in that kind of offence.” (Emphasis added).

The “ kind of offence ” referred to in the concluding sentence in this paragraph was not further identified. Nor was there any direction given as to whether the Crown needed to show an awareness of the commission of a particular offence, or an awareness of the commission of some offence, the details or nature of which were unknown to the appellant.

33 There was no complaint about the directions which were given. However, it may be accepted that the relevant point had been taken at the time of the application for a directed verdict, it being implicit, in its dismissal, that her Honour did not consider it necessary for the Crown to establish an awareness or knowledge of the precise offence or offences which had been committed, the discovery of evidence concerning which, the appellant intended by his acts to hinder.

34 That was the position which the Crown had adopted at trial, and maintained on the appeal. In that regard, it submitted that identification of the primary offence was a particular of the charge and not an essential element of it.

35 It was accepted by the appellant that the Crown did not have to prove that he had known who had in fact committed the shooting. The terms of s 315(2) would support such a concession, although they would also permit the Crown to name, in the indictment, the person who was, on reasonable grounds, suspected by the public officer referred to in the subsection, to have committed the primary offence.

36 The appellant’s submission was confined to the proposition that the Crown had to show, in relation to mens rea:

(a) that he knew that a shooting had occurred; and that

(b) with that knowledge, he tampered with and assisted in the disposal of the vehicle used in the shooting with the intention of hindering the discovery of evidence concerning that shooting.

37 As I understand this submission it was not put that the appellant had to know the specific details of the shooting, going for example to the time, place and identity of the victim or victims or, as I have observed, the identity of the shooters. However, he had at least to know that a person or persons had been unlawfully shot, and that the motor vehicle had some association with that event.

38 S 315 takes its part within a framework designed to deal specifically with attacks upon public justice. In the second reading speech concerning the Crimes (Public Justices) Amendment Bill 1990, the Attorney-General observed:

“ The amendments contained in this bill will rationalise and reform the law concerning offences involving interference with the course of justice. Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end it must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties ” ( New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 17 May 1990 at 3691).

39 Counsel for the appellant invited comparison with the offence of being an accessory after the fact to any serious indictable offence (other than those mentioned in s 348 and s 349 of the Crimes Act) for which the maximum penalty is imprisonment for 5 years. In essence, his submission was that since it was essential to criminal liability, as an accessory after the fact, that the accused be shown to have known the facts amounting to the precise offence committed by the principal or primary offender: R v Stone (1981) VR 739 and R v Tevendale (1955) VLR 95, it was unlikely that the legislature had intended to create an offence under s 315 which carried a larger maximum penalty, but which did not require a similar state of mind to that required for accessorial liability.

40 It is true that, in a case such as the present, and perhaps in other cases falling within Part 7, the Crown could have charged the appellant or a person in his position as an accessory after the fact. It does not, however, follow that accessorial liability necessarily equates with liability for public justice offences, for all purposes.

41 In particular, I do not see that it must inevitably follow that the same requirements as to mens rea attach, since the public justice offences have specifically been created to protect the administration of the criminal justice system itself.

42 I have given consideration to the question whether any light is thrown upon the question of principle which arises, by reference to any of the other provisions which are to be found in Part 7, specifically sections 316, 321 to 324, and 333.

43 It is to be noted that s 315 speaks in terms of “a serious indictable offence”. However s 324 provides for an increased maximum penalty in relation to offences under ss 321 to 323 (interference with witnesses, jurors, Judicial Officers, and public justice officials), where those offences respectively are committed with the intention of procuring “the conviction or acquittal of any person of any serious indictable offence.” (Emphasis added). S 333(2) which provides for an increased maximum penalty in relation to offences under s 333 (subornation of perjury), is in similar terms.

44 The foundational offences (ss 321 to 323 and 333(1)) clearly do not require proof of the knowledge of the offence to which the relevant proceedings relate. However it is clear that, in order to attract the circumstance of aggravation, the Crown would need to prove the additional mental element, that is the intention mentioned in s 324 and s 333(2).

45 As Gibbs CJ, Wilson and Dawson JJ observed in Kingswell v The Queen (1985) 159 CLR 264 at 280:

“ There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that that the rule of practice in R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed. ”

46 The “rule of practice” in R v Bright [1916] 2 KB 441 was drawn from the remarks of Darling J who, when delivering the judgment of the Court, said:

“ [the judge] must not attribute to the prisoner that he is guilty of an offence with which he has not been charged – nor must he assume that the prisoner is guilty of some statutory aggravation for the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation. ”

47 This view would accord with that discussed in He Kaw Te v The Queen (1985) 157 CLR 523, Bahri Kural v The Queen (1987) 162 CLR 502 and Regina v CWW (1933) 32 NSWLR 348. It clearly is necessary in the case of an accused charged under ss 321 to 323 or under s 333(1), for the Crown to establish the specific intention referred to in s 324 or in s 333(2), before he or she could become liable to the increased maximum penalty. It is this circumstance which explains the approach which is taken in Part 7 concerning these offences – namely that the circumstance of aggravation relating to intention has become an element of a distinct offence and must be charged. However, there is nothing in these provisions, arising from a comparison of the references to “a serious indictable offence” in s 315, and to “any serious indictable offence in ss 324 and 333(2)”, which throws any further light on the issue which presently arises.

48 Section 316, by comparison with ss 315, 324 and 333(2), it may be noted, creates an offence of concealing a serious indictable person, which arises where:

(a) “ a person has committed a serious indictable offence and another person [the accused] who knows or believes that the offence has been committed ” and has information which might be of material assistance;

(b) fails without reasonable excuse to bring that information to the attention of a relevant person.

Clearly in that case, the Crown would need to establish knowledge or belief in the accused of the commission of the actual offence.

49 The differences in the ways in which these public justice offences have been formulated does not assist in the resolution of the present issue. All that is common to them is the fact that the Crown need not prove that the accused knew that “the offence” which was committed, that being the expression used in s 313, amounted in law to “a serious indictable offence”.

50 In these circumstances I find the question at issue particularly difficult of decision. On the one hand it may be that the legislature did not intend to narrow the ambit of the provision to cases where the accused knew of the precise facts going to establish the specific primary offence which had been committed, and intended to bring within its sphere of application those who acted with reckless indifference as to what the primary offender had done, although with the intention of assisting him or her to escape detection for whatever that might have been.

51 On the other hand, it might be thought unreasonable to impose criminal liability, under s 315, upon a person who, having good cause to believe or suspect some act of criminality had occurred, but not knowing what it was, even in a general sense, then acted in the relevant way provided by the section.

52 At that end two considerations lead me to the conclusion that the appellant’s submission is to be preferred.

53 First, the issue needs to be understood in the light of the traditional rule that criminal statutes, if ambiguous or doubtful, should be construed strictly, that is, in favour of the accused: see for example Beckwith v The Queen (1976) 135 CLR at 576 per Gibbs J, and Murphy v Farmer (1988) 165 CLR 19 at 28-29.

54 This has a relevance for the present case since it was open to the legislature, had it intended to give the wide potential operation to the legislation contended for by the Crown, to achieve that result when enacting s 313, for example by adding the words “or the precise nature of that offence”.

55 Secondly, there is the consideration that absent some general understanding or awareness of the nature of the primary offence, there is something of a logical difficulty in an accused forming an intention to hinder the discovery of evidence concerning it. Had the provision been directed to include cases depending on constructive knowledge of the primary offence, or upon wilful blindness or recklessness in relation to it, then it might have been expected that the legislature would have made that clear. In this regard I am not persuaded either by reference to the amendments, the second reading speech, or the explanatory memorandum, that an application of the purposive rule of statutory interpretation (s 33 of the Interpretation Act 1987 (NSW) achieves the result contended for by the Crown. Specifically, it is not clear to me that the purpose, or the mischief to which the amendments were directed, is stated with sufficient clarity to bring about that result.

56 It follows, absent evidence in this case that the appellant was aware in a general way, of the nature of the primary offence, concerning which he was intentionally hindering the discovery of evidence, there should have been a directed verdict.

Ground 2 – Verdict Unreasonable

57 It was submitted that the verdict was unreasonable and could not be supported on the evidence, having regard to:

(a) what was said to be the unreliability of Rossini as a person with an indemnity or undertaking, and with a motive to falsely implicate the appellant in the offences charged; and
(b) the absence of any evidence to show that the appellant had knowledge that the vehicle had been used in any particular offence.

58 For the reasons already mentioned it is not necessary to deal with this ground.

59 I would propose that the appeal be allowed, the conviction and sentence be quashed, and a verdict of acquittal entered.

60 I would however add that if it had been the unexpressed intention of the legislature to create an offence which would be complete where a person deliberately hindered an investigation, or the discovery of evidence, or the effecting of an arrest, in relation to an offence, which happened to be a serious indictable offence, committed by another person, without specifically knowing or having reasonable cause to suspect what that offence was, then it would be appropriate for consideration now to be given to amendment of this Part of the Crimes Act.

61 SULLY J: I have read in draft the judgment of Wood CJ at CL. I adopt gratefully his Honour’s canvass of the relevant facts, of the issues now to be resolved, and of the competing submissions made in connection with those issues.

As to Ground 1

62 In my opinion the following analysis is correct:

1. There is, as Wood CJ at CL points out, a measure of ambiguity about the intended operation of section 315 of the Crimes Act 1900 (NSW) . The nature of that ambiguity is summarised in paragraphs 50 and 51 of his Honour’s judgment.

2. Any attempted resolution of that ambiguity must take account of section 33 of the Interpretation Act 1987 (NSW) . That section provides, relevantly:

“In the interpretation of a provision of an Act ………………, a construction that would promote the purpose or object underlying the Act …………….. (whether or not that purpose or object is expressly stated in the Act ………………………..) shall be preferred to a construction that would not promote that purpose or object.”


3. Section 315 forms part of Part 7 of the Crimes Act . The “purpose or object underlying” section 315 cannot be considered properly otherwise than in the context of the “purpose or object underlying” the Part of which the section is but one of a number of legislative components.

4. The “purpose or object underlying” Part 7 is the enactment of a comprehensive statutory scheme in connection with public justice offences. The comprehensiveness of the statutory scheme is underlined by the provisions of Division 5 of Part 7. Those provisions effectively abolish all of the antecedent common law offences against public justice excepting only the three particular common law offences referred to in section 343.

5. Approached in that way, sections 313, 315 and 316 operate together so as to produce the following results:

(a) There is to be a clear policy distinction between unlawful action and unlawful inaction. That distinction is to be made manifest in the scale of relevant punishments. Mere unlawful inaction will attract a maximum penalty of imprisonment for 2 years. Unlawful inaction, if deployed as a bargaining counter in the pursuit of personal advantage, will attract a maximum penalty of imprisonment for 5 years. Unlawful action will attract a maximum penalty of imprisonment for 7 years.

(b) Mere unlawful inaction is to be constituted by the withholding, without reasonable excuse, of information in circumstances where:

(i) a crime has been committed; and

(ii) it is in fact a serious indictable offence as defined in section 4 of the Crimes Act , whether or not that fact is known to the holder of the particular information; and
(iii) the holder of the particular information either knows or believes that the crime has been committed; that is to say, either knows of, or believes in, the existence of facts that are capable in law of constituting a crime; and
(iv) the holder of the particular information either knows or believes that the information might be of material assistance in the lawful detection of the crime or in the lawful prosecution or conviction of the offender.


(c) In such a case of unlawful inaction, the holder of the particular information does not have to know that the relevant crime constitutes a serious indictable offence as defined by section 4 of the Crimes Act : section 313 of the Crimes Act expressly so provides.

(d) Neither, in my opinion, does the holder of the particular information have to know that the facts, whether known or believed to exist, amount in law to a crime of particular definition, e.g. that the facts constitute manslaughter rather than murder.

What the holder of the particular information does have to know is that the facts known or believed to exist either have attracted, or might well attract, the attention of the police or some other relevant authority. It is that knowledge which generates logically an awareness of the potential materiality of the information, with the consequential obligation not unreasonably to withhold the information from the police or other relevant authority.

(e) The next relevant stage in the statutory progression adds to the knowledge discussed in (d) above an active pursuit by the holder of the particular information of some collateral benefit in exchange for the unreasonable withholding from the proper authorities of the information.

(f) The next relevant stage in the statutory scheme moves the focus away from the holder of the particular information and onto any person who does, or threatens to do, anything that is intended to achieve the withholding of the information by frightening the holder of the information into withholding it. The seriousness, as seen by the legislature, in the progress from the holder’s own cupidity to his successful intimidation by another is marked by an increase from 5 to 7 years in the term of the statutory maximum penalty of imprisonment.

(g) Section 315, the next relevant stage in the statutory scheme, moves the focus yet further away from the withholding of information, and onto any unlawful activity that is aimed directly at the hindering of the proper investigation of a serious indictable offence. The statutory maximum penalty, in line with the distinction between unlawful activity and unlawful inactivity, remains at imprisonment for 7 years.

(h) In such a case of unlawful action, the unlawful actor does not have to know that the offence which he is proposing to hinder constitutes a serious indictable offence as defined by section 4 of the Crimes Act : section 313 of the Crimes Act expressly so provides.

(j) Neither, in my opinion, does the particular actor have to know that the facts, the investigation of which he is proposing to hinder, amount in law to a crime of particular definition.

What the particular actor does have to know is that the facts which he knows or believes to exist either have attracted, or might well attract, the attention of the police of some other relevant authority. It is that knowledge which generates logically, first, the intent to hinder that attention on the part of the police or other relevant authority; and secondly, the consequential activity which gives effect to that intent.

(k) In the present case, what the appellant knew, taking the evidence at its highest in favour of the Crown, was:

(i) that something had happened away from the Telopea Road premises;

(ii) that whatever it had been, it was seen by those involved in it as not only likely to attract police attention, but also as likely to attract an immediate and massive police response;

(iii) that those involved perceived a need to deal with the motor vehicle so as to frustrate that police response; and

(iv) that by doing what he did to assist, he was associating himself with that intended frustration of the police response.

(l) In my opinion this was a sufficient state of knowledge and belief to satisfy the requirements of section 315.

63 I would not uphold Ground 1.

As to Ground 2

64 The relevant principles are stated definitively by the High Court of Australia in M v The Queen (1994) 181 CLR 487. The principles are now well established, and there is no present need to detail them.

65 The core of the Crown case against the appellant was the evidence of the witness Rossini. Rossini was, plainly, a problem witness by reason of his own significant criminal antecedents. He was closely and vigorously cross-examined; and it is, in my opinion, fair to say that the cross-examination did disclose variations between things said by Rossini in evidence at the appellant’s trial, and things said by him on previous occasions, and either in statements to the relevant law enforcement authorities, or in evidence in other criminal proceedings. I have found it very difficult to form a confident assessment, sight unseen, of Rossini as a witness. A reading of the transcript of his evidence does not suggest to me that it can be said with the requisite assurance that his evidence is so obviously deficient and lacking in probative force as to entail no other conclusion by this Court than the conclusion that, “even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted ………………………”. : 181 CLR, 494.

66 The appellant gave evidence at his trial. There was some support for parts of his evidence, that support coming from evidence called in his case at trial from members of his own family. The appellant’s case was simple. It was that Rossini was, simply and comprehensively, lying in his allegations about the appellant. It was the appellant’s case that he had not been at the Telopea Street premises at any time on the relevant day. The appellant did not put a case of mistaken identification; and he could hardly have done so, bearing in mind that he and Rossini were well acquainted with each other.

67 The jury was confronted, therefore, with two diametrically opposed versions of the essential relevant facts. It is not suggested that the learned trial Judge misdirected the jury in connection with the way in which the jury should approach the resolution of that conflict. The verdict of the jury is not explicable on any basis other than the basis that the jury accepted, beyond reasonable doubt, the version given by Rossini.

68 In those circumstances, I do not think that a proper application of the principles enunciated in M justifies this Court, which has no sense at all of the atmosphere at the trial, and which has neither seen nor heard either Rossini or the appellant, in now setting aside the verdict of the jury.

69 I would not uphold Ground 2.

70 For the whole of the foregoing reasons, I would dismiss the appeal against conviction.

71 DOWD J: I have read the judgment of Wood CJ at CL in draft form. I agree with the proposed orders and with his Honour's reasons.

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