R v Liu - [2024] NSWDC 321

District Court

New South Wales

Medium Neutral Citation: R v Liu [2024] NSWDC 321
Hearing dates: 29-30 July 2024
Decision date: 30 July 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
It is an element of count two that at the time the Accused allegedly aided, abetted, counselled, or procured the commission of the alleged offence by Mr X, the Accused expected that Mr X, if he destroyed the messages, would be doing so with Mr X having the intention of preventing them from being used in evidence.

Catchwords:
CRIME – Federal offences – Elements of charge of “aid, abet, counsel, or procure the commission of any offence” in contravention of s 11.2(3)(a) of the Criminal Code Act 1995 (Cth) – Necessity for Crown to prove all the elements, including mental elements of underlying offence – Proper construction of “including all its fault elements” - Citigroup Global Markets Australia Pty Limited [2021] FCA 1345 considered and distinguished - Giorgianni v The Queen (1985) 156 CLR 473 remains good law and is consistent with the proper construction of s 11.2(3)(a)

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Blundell v The Queen [2019] NSWCCA 3
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited [2021] FCA 1345
Giorgianni v The Queen (1985) 156 CLR 473
R v Spiteri-Ahern (No 11) [2017] NSWSC 1820
Thomas v. Lindop [1950] 1 All ER 966
Yorke v Lucas (1985) 158 CLR 661

Category: Procedural rulings
Parties: Rex
Chang Hong Liu (Accused)
Representation:
Counsel:
N Evans (Crown)

J Stratton SC (Accused)
A Barber (Accused)
Solicitors:
A Etcell (CDPP) (Crown)
A Shi (Dwellaw) (Accused)

File Number(s): 2023/33826
Publication restriction: Orders made 5 June 2024, restricting any disclosure or publication of the name of the witness, whose name is anonymised in these reasons as “Mr X”.

reasons: ex tempore – count two – elements

The question for determination that is before me has arisen in the context of the settling of the elements document in relation to count two in this trial.
Count two is in the following terms:

“Between about 5 March 2020 and about 10 March 2020, at Sydney in the State of New South Wales and elsewhere, aided, abetted, counselled or procured the commission of an offence by [Mr X], namely that [Mr X], knowing that a thing is or may be required in evidence in a judicial proceeding, namely the prosecution of [Mr Y] being a federal judicial proceeding, destroyed that thing with the intention of preventing it from being used in evidence.”

That question is, is it an element of count two that the Accused expected at the time he performed the alleged physical elements of the charge (i.e. counselled or procured et cetera) by suggesting to Mr X that certain WeChat messages be deleted, that Mr X would, if he deleted those messages, have the requisite intent to constitute an offence, being a breach of s 39(1) of the Crimes Act 1914 (Cth) (“

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 R v Liu

Details

AGLC: R v Liu [2024] NSWDC 321
Case: [2024] NSWDC 321
Decision Date: 30 July 2024

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Liu, the Federal Court of Australia was tasked with determining whether the Crown had properly established the mental elements of an offence under section 11.2(3)(a) of the Criminal Code Act 1995 (Cth). The case centred on the charge of aiding, abetting, counselling, or procuring the commission of an offence, with specific focus on whether the prosecution had to prove the mental elements of the underlying offence as part of the charge. This case required the court to interpret the phrase "including all its fault elements" within the statutory context.

The central legal issue before the court was the proper construction of the phrase "including all its fault elements" in section 11.2(3)(a) of the Criminal Code Act 1995 (Cth). The court had to decide whether the Crown needed to prove the mental elements of the underlying offence as part of the charge of aiding, abetting, counselling, or procuring that offence. This required the court to consider the interaction between statutory interpretation and the established principles of criminal law, particularly the decision in Giorgianni v The Queen, and to examine how this related to the more recent decision in Citigroup Global Markets Australia Pty Limited.

The court concluded that Giorgianni v The Queen remained good law and provided the correct framework for understanding the construction of section 11.2(3)(a). It distinguished the earlier decision in Citigroup Global Markets Australia Pty Limited, holding that the Crown must prove all the fault elements of the underlying offence as part of the charge of aiding, abetting, counselling, or procuring that offence. The court held that the phrase "including all its fault elements" meant that the prosecution must demonstrate that the accused had the requisite mental state for the underlying offence at the time of the aiding, abetting, counselling, or procuring. The court determined that this interpretation was consistent with the statutory language and the established principles of criminal law.

The court ordered that for count two of the charge to stand, it must be proven that the accused expected the person they aided, abetted, counselled, or procured to commit the offence with the requisite intent to prevent the evidence from being used. This expectation must align with the intent required for the underlying offence at the time of the aiding, abetting, counselling, or procuring.

Orders

Orders of the court

It is an element of count two that at the time the Accused allegedly aided, abetted, counselled, or procured the commission of the alleged offence by Mr X, the Accused expected that Mr X, if he destroyed the messages, would be doing so with Mr X having the intention of preventing them from being used in evidence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Liu [2024] NSWDC 321
Hearing dates:	29-30 July 2024
Decision date:	30 July 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	It is an element of count two that at the time the Accused allegedly aided, abetted, counselled, or procured the commission of the alleged offence by Mr X, the Accused expected that Mr X, if he destroyed the messages, would be doing so with Mr X having the intention of preventing them from being used in evidence.
Catchwords:	CRIME – Federal offences – Elements of charge of “aid, abet, counsel, or procure the commission of any offence” in contravention of s 11.2(3)(a) of the Criminal Code Act 1995 (Cth) – Necessity for Crown to prove all the elements, including mental elements of underlying offence – Proper construction of “including all its fault elements” - Citigroup Global Markets Australia Pty Limited [2021] FCA 1345 considered and distinguished - Giorgianni v The Queen (1985) 156 CLR 473 remains good law and is consistent with the proper construction of s 11.2(3)(a)
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Blundell v The Queen [2019] NSWCCA 3 Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited [2021] FCA 1345 Giorgianni v The Queen (1985) 156 CLR 473 R v Spiteri-Ahern (No 11) [2017] NSWSC 1820 Thomas v. Lindop [1950] 1 All ER 966 Yorke v Lucas (1985) 158 CLR 661
Category:	Procedural rulings
Parties:	Rex Chang Hong Liu (Accused)
Representation:	Counsel: N Evans (Crown) J Stratton SC (Accused) A Barber (Accused) Solicitors: A Etcell (CDPP) (Crown) A Shi (Dwellaw) (Accused)
File Number(s):	2023/33826
Publication restriction:	Orders made 5 June 2024, restricting any disclosure or publication of the name of the witness, whose name is anonymised in these reasons as “Mr X”.