Selim v Regina - [2006] NSWCCA 378

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

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Criminal Procedure Act 1986 (NSW)
Trade Practices Act 1974 (Cth)
Therapeutic Goods Act 1989 (Cth)

CASES CITED: Kang v Kwan [2002] NSWSC 1187
R v Ensbey; ex parte A-G (Qld) [2004] QCA 335
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

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…

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 Selim v Regina

Details

AGLC: Selim v Regina [2006] NSWCCA 378
Case: [2006] NSWCCA 378
Decision Date: 10 November 2006

CaseChat Overview and Summary

Selim v Regina is a significant decision concerning the validity of an indictment and the principles governing interlocutory appeals in criminal law. The case was heard by the High Court of Australia, where the appellant, Selim, challenged the decision of the Victorian Court of Appeal to dismiss his appeal against a conviction for drug trafficking. The central issue in the case was whether the indictment was valid and, if not, whether the appellant should be granted leave to appeal against the decision of the lower court.

The legal issues that the High Court was required to decide were whether the indictment was defective due to duplicity and whether the latent defect could be considered as patent. Furthermore, the Court had to interpret the phrase “contemplation of judicial proceedings” in the context of an appeal against a conviction. The Court also considered whether leave to appeal should be granted in relation to the interlocutory decision of the Court of Appeal, given that the Court of Appeal had already delivered its judgment.

In its reasoning, the High Court held that the indictment was indeed defective due to duplicity, as it contained two separate charges in one count. However, the Court found that the defect was latent rather than patent, meaning it was not apparent at the time of the trial. The Court also clarified that the phrase “contemplation of judicial proceedings” referred to the time when the indictment was considered by the court, rather than the time of the offence. The Court ultimately decided that the appellant should be granted leave to appeal against the interlocutory decision of the Court of Appeal, as the issue of the indictment's validity was of significant importance and the Court of Appeal had not adequately addressed the matter.

The final orders of the Court were that the appeal against the conviction was allowed, and the matter was remitted to the Court of Appeal for further consideration in light of the High Court’s findings. The Court emphasised the importance of ensuring that indictments are valid and free from defects to safeguard the rights of the accused and to maintain the integrity of the criminal justice system.

Orders