R v Kelly

[2006] VSCA 221

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 34 of 2006

THE QUEEN

v.

DESMOND PATRICK KELLY

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JUDGES:	CALLAWAY and REDLICH, JJ.A. and COLDREY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 August 2006
DATE OF JUDGMENT:	17 October 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 221

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Criminal law – Appeal against conviction – Offence against Crimes Act 1914 (Cth), s.70(1) – Commonwealth officer allegedly communicating a document which it was his duty not to disclose – Whether verdict unreasonable or could not be supported by the evidence – Whether trial judge erred in providing copy of s.70(1) to jury – Crimes Act 1914 (Cth), s.70(1) – Crimes Act 1958 (Vic), s.568(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M.P. Cahill	Director of Public Prosecutions (Cth.)
For the Applicant	Mr .W.E. Stuart	Bullards

CALLAWAY, J.A.:

1. The applicant was found guilty in the County Court on one count of an offence against s.70(1) of the Crimes Act 1914 (Cth). He received a non-custodial sentence and seeks leave to appeal only against his conviction. There are two grounds. The first is that the “conviction was in all the circumstances unsafe and unsatisfactory”, i.e. that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.[1]  The second is that the learned trial judge erred by providing the jury with a copy of s.70(1).  His Honour did so, without objection, in response to a request from the jury.

   [1]Crimes Act 1958, s.568(1).

1. Before turning to counsel’s submissions, I shall say something briefly about the facts.  The applicant was employed at the Victorian State Office of the Commonwealth Department of Veterans’ Affairs (“DVA”).  At 6.14 p.m. on 16^th February 2004 an internal email was sent to a number of DVA staff.  The email contained attachments relating to a proposed statement by the Minister for Veterans’ Affairs in response to the recommendations of the Clarke Committee, which had conducted a review of veterans’ entitlements.  The attachments included a document headed “Clarke Report”, which was a draft statement to Parliament.  The email was forwarded to the applicant at 8.26 a.m. on 17^th February 2004 and immediately opened by him.

1. Later that day DVA staff were advised, by a further email, that the ministerial statement would not be made and that they should ensure that the information contained in the earlier email was kept confidential.  The applicant received and opened the further email at 12.36 p.m.  Over the course of 17^th and 18^th February DVA staff who had received the material concerning the proposed ministerial statement were told to recall and destroy the information contained within the principal email and its attachments.  None of them was authorized to circulate the email or that information beyond DVA staff who were entitled to receive it.

1. On 19^th February 2004 Peter Reece, the policy adviser to the shadow Minister for Veterans’ Affairs, was contacted by Gerard McManus of the Herald Sun newspaper.  Mr McManus sought his comment on documents detailing the content of a withdrawn ministerial statement.  Mr Reece asked to be provided with copies of the documents but that request was refused.  Documents were, however, left for him at his office the next day.  It is not contested that their contents were identical with the contents of documents attached to the email sent to DVA staff on 16^th February 2004.

1. Also on 20^th February 2004 an article appeared in the Herald Sun written by Michael Harvey and Mr McManus with the headline “Cabinet’s $500 million rebuff to veterans”.  The text indicated that the authors had access to “confidential documents”, “press releases” and “Ministerial speech notes”.  It included a direct quotation from the draft ministerial statement attached to the email of 16^th February 2004. 

1. Following publication of the article, a search was made of all outgoing calls from internal DVA telephone numbers, including mobile numbers, made between 16^th and 20^th February 2004 to telephone numbers associated with the Herald Sun in Victoria and the Australian Capital Territory.  The search revealed that only one telephone number associated with the Herald Sun, namely Mr Harvey’s number at the press gallery in Parliament House, had been dialled and that was from only one internal DVA number.  The internal DVA number was the applicant’s extension [phone].  The search covered over 3,000 extensions within DVA and a large number of mobile telephone numbers.

1. Call charge records of the applicant’s home telephone [phone] and work telephones revealed that outgoing calls to both the press gallery telephone number [phone] and a mobile telephone number associated with Mr Harvey 0419 371 599 were made on seven occasions between 17^th and 20^th February 2004:

“

Date	Time	Call from	Call to	Duration
17 February 2004	17:14	[phone]	[phone]	17 minutes
19 February 2004	09:25	[phone]	[phone]	20 seconds
19 February 2004	09:29	[phone]	[phone]	15 seconds
19 February 2004	10:47	[phone]	[phone]	14 seconds
19 February 2004	12:03	[phone]	[phone]	6 minutes
20 February 2004	17:39	[phone]	[phone]	29 seconds
20 February 2004	17:40	[phone]	0419 371 599	20 seconds

“

It was assumed in argument, based on answers Mr Reece gave in re-examination, that he was contacted on the afternoon of 19^th February 2004.

1. Section 70(1) of the Crimes Act 1914 provides:

“(1)A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he is authorized to publish or communicate it, any fact or document which comes to his knowledge, or into his possession, by virtue of being a Commonwealth officer, and which it is his duty not to disclose, shall be guilty of an offence.”

The offence may be committed by publishing or communicating either a fact or a document but, both in the indictment and in the way the case was run at trial, the Crown confined itself to an allegation that the applicant communicated a document, namely the draft ministerial statement headed “Clarke Report”, to an unauthorized person.

1. The applicant made admissions of fact pursuant to s.149A of the Evidence Act 1958. The most important admission, apart from those relating to telephone calls, was in paragraph 14, namely that Mr Harvey received a hard copy of the draft ministerial statement from an unnamed individual in the days leading up to the publication of the article in the Herald Sun. 

1. It is convenient to deal first with the second ground.

1. Early in the charge, the judge read the whole of s.70(1) to the jury, but his Honour explained that the Crown case was dependent on communication of a document.  He said:

“The fifth matter which the Crown have to establish beyond reasonable doubt of course is the $64 question, that it was the accused who disclosed or in other words, passed on the hard copy of the document to the journalist.  That has to be established beyond reasonable doubt and that is what this case is all about.  It is fair to say that if the Crown case merely satisfies you that the accused man spoke to a journalist as distinct from handing him the document, about the contents of the document, the Crown case is not made out.  The Crown case is that the accused man either directly or indirectly caused this document to be handed to the journalist.”

1. The jury retired at 11.04 a.m. to consider their verdict.  At 2.15 p.m. they asked two questions.  The first was couched this way:  “we were wondering if we could have a copy of the Crimes Act sub-section 70(1) 1914 that you read out so we can clarify [inaudible]”. The jury’s second request was for “a redefinition of a circumstantial case”. His Honour redirected on that second question while his tipstaff made copies of s.70(1). Those copies were given to the jury. No exception was taken to that course.

1. The redirection on a circumstantial case was again in terms of handing over a document.  It reflected the argument run at the trial that was again advanced before us.  The relevant part of the redirection reads:

“But if, after considering all of the evidence there is another reasonable explanation for the facts as you find them then the circumstantial case is not made out and you could not be satisfied beyond reasonable doubt.  We’ll go back to the simple argument – perhaps I shouldn’t call it a simple argument but counsel’s submissions came down to the way in which you should interpret the fact of these phone calls.  Mr Pirrie argued there is only one conclusion, because he made those phone calls of that duration and at that time he must have been the one, and there is no other answer to it, he must have been the one beyond reasonable doubt to provide the document.

On the other hand, you remember the arguments of Mr Stuart about the access that other people had to the hard copies, the number of people to whom the e-mails were ultimately distributed, the possibility that some other person who may have had some axe to grind who had access to the material was a possible culprit and I don’t think I need go over the arguments again.”

1. The gravamen of the second ground of appeal is that the jury may have been satisfied that the applicant communicated either the document or its contents and, seeing both alternatives in s.70(1), may have forgotten or overlooked the way in which the Crown case was confined and convicted the applicant on the basis that he must have been guilty of the offence one way or the other.  The jury did not deliberate very long.  The redirection concluded at 2.20 p.m. and they returned a verdict of guilty at 3.09 p.m.  Counsel submitted that the verdict itself showed that the jury must have travelled beyond the Crown case because, in his submission, they could not conclude beyond reasonable doubt that the applicant had handed over the document.  In that way the second ground overlaps with the first.

1. With the benefit of hindsight, it would have been better not to give the jury a copy of s.70(1), particularly as it contained an alternative that was not particularized in the indictment and on which the Crown did not rely.  Nevertheless, in my opinion, we should not draw the inference that the jury disregarded the way in which the case had been presented or the clear directions that they had been given by the judge or that there is an unacceptable risk of their having done so.[2]  The direction set out in [11] above was particularly clear and there were 12 jurors to jog each others’ memories of what the judge had said.  I would not uphold this ground.

   [2]Compare R. v. Forbes (2005) 160 A.Crim.R. 1 at 9 [43] – [45] per Spigelman, C.J.

1. The real issue is that presented by the first ground, whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant had communicated the document to an unauthorized person.  It is not enough that it is more probable than not that he did so.  The Crown must exclude any reasonable hypothesis consistent with innocence.  That requires little citation of authority.  The principle was discussed in Knight v. R.[3], later subsumed in M. v. R.[4].  The principle, and the potential for reasonable minds to differ, is well illustrated by Cutter v. R.[5].  The appellant in that case stabbed a constable in the throat.  His conviction, by a Supreme Court judge sitting without a jury, was upheld, by majority, in the Western Australian Court of Criminal Appeal and quashed, by majority, in the High Court.  Brennan, C.J., Dawson and Gummow, JJ. considered that there was a reasonable possibility that the appellant did not intend to kill as opposed to wound.[6]

   [3](1992) 175 C.L.R. 495.

   [4](1994) 181 C.L.R. 487. M. v. R. was itself reaffirmed in Jones v. R. (1997) 191 C.L.R. 439.

   [5](1997) 71 A.L.J.R. 638.

   [6]Five out of the nine very senior judges who considered the evidence did infer an intention to kill.  What does that say, I ask rhetorically, about the task described, in relation to the proviso, in Weiss v. R. (2005) 80 A.L.J.R. 444 at 454 [41] – [47]?

1. Two concessions were made in the course of argument, one by Mr Stuart and the other by Mr Cahill.  Mr Stuart conceded, in his outline of submissions, that a reasonable inference could be drawn that the applicant spoke to Mr Harvey about the document but, counsel said, that did not prove that he handed it over.  The evidence was consistent with the hypothesis that the applicant simply discussed its contents.  The evidence did not sustain a conclusion beyond reasonable doubt that he communicated a hard copy.  In answer to questions from the bench, counsel agreed that, if the applicant even talked about the document, that was in breach of his duty.

1. Mr Cahill, for his part, conceded that the respondent’s argument came down to this:  the applicant admitted that Mr Harvey received a hard copy of the document from an unnamed individual in the days leading up to the publication of the article in the Herald Sun;  a search of over 3,000 extensions and a large number of mobile telephone numbers and an examination of call charge records revealed only the seven telephone calls set out in [7] above.  It was a short step to conclude, beyond reasonable doubt, that the unnamed individual was the person who, in breach of his duty, was talking about the document to Mr Harvey.  I think that argument is sound and I accept it.  I do not forget that there were many other officers who could have made hard copies of the attachments to the email. 

1. I do not consider that it is a reasonable hypothesis that the authors of the article obtained the draft ministerial statement from another source or that the purpose of the telephone calls was to answer their questions about a complex topic.  The seven telephone calls of which we are aware were all initiated by the applicant. 

The evidence is silent as to whether any calls were initiated by the journalists.

1. I have reached my conclusions without drawing any inference from the fact that the applicant did not give evidence at the trial.   Since Azzopardi v. R.[7] such an inference may be drawn only with great caution.  It is nevertheless arguable that this is a case where the applicant could have provided additional facts, as opposed to simply controverting the Crown case, and that his failure to offer an explanation of the telephone calls may be taken into account in assessing the strength of the prosecution case.[8]

   [7](2001) 205 C.L.R. 50.

   [8]See Azzopardi v. R. especially at 74 [64] and 75 [67] – [68].

1. In deference to the views of the other members of the Court about the insufficiency of the evidence, I would grant leave to appeal against conviction, but I would dismiss the appeal.

REDLICH, J.A.
COLDREY, A.J.A.:

1. We have had the advantage of reading in draft the reasons for judgment prepared by the learned presiding judge.  We adopt his summary of the facts and issues and agree, for the reasons he gives[9], that the second ground should not be upheld.  We differ from his Honour about the first ground.  In our opinion that ground should succeed. 

   [9]At [10]-[15] above

1. Proof that it was the applicant who had directly or indirectly provided the document to the journalist Michael Harvey rested upon circumstantial evidence.  The trial judge correctly instructed the jury as to the reasoning process which they were required to employ to determine whether the prosecution had satisfied its onus of proof beyond reasonable doubt.  As Dixon, J. said in Martin v. Osborne[10]:

"If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference.  In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.  This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed."

[10](1936) 55 C.L.R. 367 at 375

1. In our view the occurrence of the facts upon which the Crown relied was insufficient to persuade a jury, acting reasonably, that they could reject as a rational inference, the possibility that someone other than the applicant supplied the journalists with the document. 

1. The evidence was sufficient to satisfy the jury that it was the applicant who had made a number of phone calls to the journalist Harvey shortly after the document had been released within the Department of Veterans’ Affairs (DVA).  Given the proximity of the calls, both to the release of the document and the publication of the Herald Sun article, it was arguable that it was the applicant who released the document to one of the journalists, or at least discussed the contents of it.  However, the occurrence of the telephone calls did not exclude, as unreasonable, the hypothesis that someone other than the applicant provided the journalist with the document. 

1. The Crown case was plainly hindered by the journalists' refusal to testify,[11]  but there were other apparent deficiencies in the prosecution case.  The relevant documents were distributed throughout Australia by Departmental email to about 300 employees.  No security was attached to the emails, and hard copies of the attachments could be, and apparently were, printed.  After the Departmental decision was made to withdraw the information there was no systematic recovery of the hard copies undertaken by Departmental officials.  In summary, therefore, hard copies of the attachments could have been printed at any time from the documents emailed to the 300 Commonwealth employees and such hard copies could have been retained by them.

   [11]See Michael Harvey and Gerard McManus v. County Court of Victoria and Ors. [2006] VSC 293.

1. The evidence disclosed that the applicant's work computer had been examined and it was established that he had not emailed the material to any other person or to his home email account. 

1. It is pertinent to note that the evidence, such as it was, indicated that both journalists operated out of Canberra whilst the applicant was based in Melbourne.  The ministerial advisor to the Shadow Minister for Veterans’ Affairs, Peter Reece, gave evidence that he was contacted by the journalist McManus on the afternoon of 19 February and was shown the documents and asked to comment upon them.  No admission of fact was made or direct evidence adduced as to how McManus came into possession of the documents.  The admission of fact made by the applicant, that Mr Harvey received a hard copy of the draft ministerial statement from an unnamed individual in the days preceding the Herald Sun publication, did not answer the questions as to how and where the document was obtained.

1. Although there was evidence of telephone contact between the applicant and Mr Harvey, the prosecution did not adduce evidence that permitted any conclusion to be drawn as to whether there were communications between the journalists and other officers of the Department.  There were no records tendered in evidence of mobile phone or landline phone calls made by the journalists during the relevant period; only incoming calls to the journalists' telephones were examined.  Consequently, there was an absence of evidence as to whether the journalists had been involved in calls to any other DVA employee.  Moreover, no evidence was before the jury as to whether any checks had been conducted on the private mobile phones of DVA employees.

1. Since the only evidence before the jury was as to incoming landline calls to the journalists, the phone records that were introduced into evidence were inconclusive as to the extent of the communications between the applicant and the journalists, and indeed whether it was the applicant or a journalist who had initiated such communication. During the applicant's interview the investigators drew his attention to the phone records.  The inference which the Crown seeks to draw from those phone records that were introduced into evidence was not put to the applicant during his interview with investigators and he was not invited to provide any explanation of what was revealed by those records.  The applicant was not asked, in terms, in his interview, whether he knew Messrs. Harvey or McManus or whether he had spoken with them during the material time.  No evidence was adduced by the prosecution as to whether the applicant had any relationship with these journalists. 

1. Counsel for the applicant advanced the hypothesis that the journalists, having obtained possession of the documents from a source other than the applicant, may have spoken with the applicant about their contents.  This was amongst a number of rational hypotheses which had not been excluded.  Such a contention should be seen in the context of the evidence before the jury that the Clarke Report itself was about 12 months old and had already generated considerable interest both within the veterans community and in the media. 

1. Finally, it should be noted that the applicant himself, on the evidence, was a person of good character.  It was not suggested that he was allied to the cause of veterans or that he had any conflict with his employer, the DVA.  In short, no motive was advanced as to why the applicant would have leaked this document. 

1. As Callaway, J.A. points out, the question whether the circumstantial case at trial satisfied the criminal standard of proof is one on which reasonable minds may differ.  But  an inference that the applicant was probably guilty or even that his guilt was very probable will not suffice.  Though there be only a "short step" as Callaway J.A. describes it[12], to a conclusion beyond reasonable doubt, an acceptance of all of the Crown’s circumstantial proof was, in our opinion, insufficient to satisfy the criminal standard.

   [12]At [18].

1. We give full regard to the fact that the jury was entrusted with primary responsibility for determining the applicant’s guilt or innocence and had the benefit of hearing and observing the witnesses. But the evidence did not lack the necessary probative force because of the manner in which it was given but because, on the undisputed facts, a reasonable hypothesis could not be excluded.  Consequently, this is not a case where full allowance for the jury’s advantage in seeing and hearing the evidence was capable of resolving the doubt which we have experienced.  That doubt is one which the jury should have experienced.[13]  We do not think that upon the whole of the evidence, it was  open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty.

   [13]M. v. The Queen (1994) 181 C.L.R. 487 at 494 ; R. v. V.N. [2006] VSCA 111 at [135].

1. For these reasons we would grant the application for leave to appeal against conviction, allow the appeal, quash the conviction of the applicant and direct that a judgment and verdict of acquittal be entered.

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