R v Liu [2024] NSWDC 321

R v Liu [2024] NSWDC 321

The words "including its fault elements" in s 11.2(3) of the Criminal Code Act 1995 (Cth) are clear and refer to the mental elements of the underlying offence. Giorgianni remains good law, as applied in Spiteri-Ahern and Blundell, and Citigroup did not alter that position. Accordingly, for count two it is an element that, when the Accused allegedly aided, abetted, counselled or procured Mr X, the Accused expected that if Mr X destroyed the messages he would do so with the intention of preventing them from being used in evidence.

Jurisdiction
Australia
Judgment Date
30 July 2024
Procedural Posture
Criminal / Procedural Ruling on the Elements Document for Count Two in a Trial
Outcome
The Court ruled that the disputed matter is an element of count two.
Legal Topics
['complicity and Common Purpose' 'aiding, Abetting, Counselling or Procuring an Offence' 'fault Elements' 'destruction of Evidence' 'construction of S 11.2 of the Criminal Code Act 1995 (cth)']
['criminal Law' 'federal Criminal Law' 'criminal Procedure'] ['complicity and Common Purpose' 'aiding, Abetting, Counselling or Procuring an Offence' 'fault Elements' 'destruction of Evidence' 'construction of S 11.2 of the Criminal Code Act 1995 (cth)']

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Procedural Posture

Criminal / Procedural Ruling on the Elements Document for Count Two in a Trial

Legal Issues

  1. 1 ['Whether it is an element of count two that, at the time the Accused allegedly aided, abetted, counselled or procured Mr X, the Accused expected that Mr X would destroy the messages with the intention of preventing them from being used in evidence.' 'Whether s 11.2(3)(a) of the Criminal Code Act 1995 (Cth), by referring to an offence "including its fault elements", requires proof of the mental elements of the underlying offence.']

Ratio Decidendi

The words "including its fault elements" in s 11.2(3) of the Criminal Code Act 1995 (Cth) are clear and refer to the mental elements of the underlying offence. Giorgianni remains good law, as applied in Spiteri-Ahern and Blundell, and Citigroup did not alter that position. Accordingly, for count two it is an element that, when the Accused allegedly aided, abetted, counselled or procured Mr X, the Accused expected that if Mr X destroyed the messages he would do so with the intention of preventing them from being used in evidence.

Court Disposition

The Court ruled that the disputed matter is an element of count two.

Orders

  • ['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.']