constituted an attempt:
"to intimidate, induce, or deter [a witness] in a manner calculated to deter [him] from giving evidence or to influence [him] in the evidence that [he is] to give " [Emphasis mine] .
100 His Honour held that on the facts before him, such contempt was established.
101 His Honour's conclusion in the case before him was amply supported by authority. For example, in Watson v Collings (1944) 70 CLR 51 at 58, Rich J commented on a particular aspect of the evidence before him. In the context of a dispute involving the appointment by the Commonwealth of its Railways Commissioner, there was transmitted to the incumbent Commissioner, who also sought to be re-appointed to that position, correspondence emanating from a Minister, noting that a subpoena would be served on the Commissioner by the other party. The letter went on to say:
"It would be unfortunate if [the incumbent Railways Commissioner] who I understand desires his re-appointment to be considered by Cabinet were to give evidence not completely in accord with the case presented by the Commonwealth".
102 Rich J considered the transmission of this letter to the incumbent Commissioner as an act calculated to affect his testimony or to embarrass him in giving evidence.
103 In the present case the question that in my opinion arises is whether, assuming that I am not satisfied to the requisite standard there was an attempt by Mr O'Brien to intimidate, induce or deter Mr Simms in a manner calculated to deter him from giving evidence, is it always an act of contempt (to adopt the words of Brereton J) to attempt to influence a witness in the evidence that he is to give.
104 The vast majority of cases, both ancient and modern, which have come before the courts involve either attempts to deter a witness from giving evidence, to influence a witness to alter his or her evidence, to persuade a witness to give false evidence, or which involve the application of inappropriate pressure being brought to procure the witness to give evidence, even evidence that the alleged contemnor believes to be true. Far less frequent is the situation where the alleged contemnor does not seek to achieve any of the foregoing, but seeks instead to achieve a result by which the witness adds to his or her existing evidence certain further evidence that the witness himself or herself has provided to the alleged contemnor, and from the veracity of which the witness has not resiled.
105 This issue was reviewed by the English Court of Appeal in R v Kellett [1976] 1 QB 372. The facts in that case were substantially removed from the facts before me, but Stephenson LJ, who delivered the judgment of the Court of Appeal, noted at pages 383-4 that the cases supporting the general proposition that an attempt to pervert the course of justice is an offence against the common law:
"…show also that tampering with evidence, inducing a person to give false evidence, or not to give evidence, for reward are instances of this common law offence whether the evidence is to be given in criminal or in civil proceedings and whether the inducement is effective or, as in this case, not. But [those cases] were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They do not deal with the limits of the offence or indicate whether it can be committed where the evidence of the potential witness is false or may be false, or whether it can be committed where the means used are not bribery or reward but threats, or where the threats used are threats to exercise a legal right, or where the intention, or one of the intentions, of him who approaches the potential witness is to exercise such a right or to see that justice, or what he believes to be justice, is done to himself or another " [Emphasis mine]
106 His Lordship noted that the offence of attempting to pervert the course of justice has never been precisely defined. He referred to the Report of the Committee on Contempt of Court, December 1974 (Cmnd. 5794), Appendix II, p. 106, para. 10, and noted at p. 386 that the said Report considered that in order for the offence to be proved, it was necessary for the Court to find:
'… that the intended interference is improper or wrong. Thus, a person who encourages a witness to come forward, or a solicitor who advises against taking or defending legal proceedings may be described as intending to interfere, but is clearly doing no wrong, and cannot be liable; and we have recommended that even the bringing of moral pressure on a party in order to influence his attitude in the proceedings… should not be penalised"
107 His Lordship also referred to a decision of a Canadian appellate court in R v Silverman (1908) 17 OLR 248 and cited what was said by Osler JA at page 250 in the following terms:
"That is plainly an attempt to dissuade the witness from giving evidence, and, having been corruptly done, is within the very words of the section. Whether the accused was honest in his belief or not is immaterial. It would not have been unlawful for him by argument or explanation to have attempted to dissuade the witness from giving what the accused may have honestly believed to be an untrue account of the transaction, and to give what may have appeared to him to be the true one… " [Emphasis mine]
108 His Lordship also set out what was said by MacLaren JA at page 251:
"Even the most desirable end cannot justify the employment of corrupt means. The fountain of justice should be kept pure and not be corrupted at its source. It was quite open to the accused, believing, as he did, in the innocence of his brother, to shew to Weller, if he could, such evidence or facts as might convince him that he had been mistaken in his previous testimony. He did not, however, rely upon such means, but, on the contrary, chose to attempt to accomplish his end by bribery, and thereby brought himself within the very language of the statute." [Emphasis mine]
Although the statutory basis on which the said Canadian case arose is not the same as the common law offence of attempting to pervert the course of justice, the foregoing analyses leave available a conclusion that, depending on the precise nature of the influence exerted and the evidence the subject of the influence, not every attempt to influence a witness in the evidence that he or she is to give necessarily constitutes an attempt to pervert the course of justice.
109 By way of further illustration, if one returns to the passage by Brennan and Toohey JJ in Rogerson, set out in paragraph 98 above, their Honours make reference to the ways in which a court may be impaired in its capacity to do justice as including:
"denying [the Court] knowledge of the …true circumstances of the case…"
110 However, nothing is said about a court's capacity to do justice being impaired by adding to the court's knowledge by means of adducing further evidence. While particular care needs to be taken to ensure that the pressure imposed upon the potential witness is not such as to deprive him of the right to give such evidence as he may wish, and provided that appropriate safeguards are also in place to ensure that the additional evidence is true, influencing a witness to give additional evidence of that kind is not, in my opinion, conduct that would fall within the concept of a contempt of court.
111 In my opinion, the approach to Mr Simms by Mr O'Brien did not constitute an inappropriate interference with a witness notwithstanding that it was an attempt to influence Mr Simms in the evidence he was to give. What Mr O'Brien sought to do was to induce Mr Simms to attend upon the plaintiff's solicitor so as to provide him with information that had not been included in the affidavits sworn by Mr Simms. There was no suggestion that the information was false or that either Mr Simms or Mr O'Brien thought it was false. There was no attempt to intimidate, induce or deter Mr Simms from giving evidence or from changing his evidence; it was to induce him to consult with Mr O'Brien's solicitor.
112 Undoubtedly Mr O'Brien intended that Mr Simms would disclose, and his conduct was inherently likely to result in Mr Simms disclosing, and hoped that as a consequence, Mr Simms would disclose to Mr Petrucco the same information that Mr Simms had disclosed to Mr O'Brien in the course of their earlier conversation, (and indeed perhaps even more information) and that such information would prove to be beneficial to the plaintiff's case against the defendants. However, in my view, that does not constitute an attempt to pervert the course of justice. If it did, so would nearly every situation where a party to proceedings requests a potential witness to consult with his solicitors in the hope, or even in the expectation, that such witness will be able and willing to give evidence of the kind that would assist that person's case.
The Relevant Legal Principles: The third category
113 Finally, I come to the third category of particulars, consisting of disparaging comments that I found had been made to Mr Simms about the applicants with a view to persuading Mr Simms to have nothing to do with them.
114 I have already referred above to the particulars that allege the making of disparaging comments in the context of the applicants' potential employment by Mobilesoft. Insofar as those comments related to matters unconnected with Mr Simms' role as a witness in these proceedings, I cannot see how they could constitute attempts to pervert the course of justice. The evidence before me does not permit me to find, and I do not find, that those comments were intended in any way to influence Mr Simms in relation to any evidence he might or might not give. The comments were made to dissuade Mr Simms from causing Mobilesoft to engage the services of the applicants.
115 The particulars contained in paragraphs 9-11 of the letter of 3 June 2009 are somewhat different. Those comments were undoubtedly intended to denigrate the applicants and to present them in an adverse light before Mr Simms. But did those comments constitute an attempt to pervert the course of justice?
116 In my opinion, they did not. The comments were made at a time when Mr Simms had already sworn his two affidavits, but was being pressed by Mr O'Brien to see Mr Petrucco. The identity of the witnesses to be called by the respective parties had already crystalized. No doubt Mr O'Brien permitted himself the indulgence of venting his anger toward the applicants, but not so as to influence Mr Simms' evidence. He may have felt that such denigration might have made Mr Simms more willing to see Mr Petrucco, but that constituted no more than yet another form of persuasion that Mr Simms do so. Having regard to the position Mr Simms had taken in relation to the evidence, nor did such comments have the tendency to do so.
117 In their written submissions, the applicants referred to the decision of Kekewich J in Wellby v Still (1892) 8 TLR 202 in support of the proposition that disparagement of a party can, and that in the present case it did, constitute a contempt of court.
118 In that case, the solicitor for the plaintiff and the solicitor's son (who had an interest in the subject matter of the suit) wrote to various persons who were expected to be called by the defendants as witnesses. The letters asserted that the defendants had pursued a "systematically dishonest and dishonourable course of conduct".
119 Kekewich J held that the writing of such letters constituted a contempt of court. His Lordship took the view that the letters were intended to "warp the minds" of the various recipients in the expectation that those recipients, on receiving such a letter from a solicitor, would say to themselves:
"I must be careful how I assist such persons as these defendants; I must rather, if I can, strain a point to assist the person suffering from such conduct as this".
120 In my opinion, the facts before his Lordship can be distinguished from the facts in the case before me. In the case before his Lordship, the letters in question were sent out to potential witnesses who at that point of time had not provided any affidavit or other indication of the evidence they would be prepared to give. In those circumstances, the only possible reason for writing the letters in question had to be to influence those potential witnesses not to assist or in any other way involve themselves with the defendants on account of the defendants' "dishonest and dishonourable conduct". Further, it does not appear that in that case there was any pre-existing contact or other communication with those potential witnesses. The letters clearly came unsolicited and unexpected, and were written (at least in the case of some of them) by a solicitor writing in that capacity.
121 By contrast, in the case before me, the person to whom the disparaging comments were addressed had, by swearing his two affidavits, already indicated, the evidence he was prepared to give and had already informed Mr O'Brien of the additional matters which Mr O'Brien wished him also to relate to Mr Petrucco. Further, Mr Simms must have been far more familiar with the issues in the case in which he was to give evidence than were the recipients of the letters in the earlier case, and it may safely be assumed that the undoubted respect which a letter from a solicitor may have been accorded in 1892 would not have been reproduced as between two businessmen on good terms in the early part of the twenty-first century, and would not have been expected to carry the same weight.
122 Accordingly, in my opinion the disparaging comments constituting the third category of particulars likewise did not constitute a contempt of court.
Orders
123 It therefore follows that the application has to be dismissed.
124 Mr O'Brien seeks an order for costs, assessed on the indemnity basis. I see no reason why the court should exercise its discretion to award costs on that basis. I consider that the applicants brought this application quite properly, albeit that they have failed to establish their case to the requisite level of proof. They have conducted this application in a proper and responsible manner, notwithstanding that they are not legally trained.
125 Accordingly I order that the applicants' notice of motion filed on 21 January 2009 be dismissed with costs.
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