Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal - Attempting to pervert the course of justice - Appellant charged with sexual offence - Approach to prosecution witness through family members - Claim that statement of witness false - Threats to put caveat on house and sue for defamation - Warnings about punishment for perjury - Claim appellant only seeking to have witness tell the truth - Whether threatening conduct - Whether improper means used - Elements of offence of attempting to pervert course of justice - Whether rulings of trial Judge prevented appellant putting his defence

Sentencing Act 1995 (WA), s 6(4), s 76(1), s 76(2)

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

1 ROBERTS-SMITH JA: By leave granted 30 January 2006, the appellant appeals against both conviction and sentence.

2 On 1 November 2005 the appellant was convicted after trial before Yeats DCJ and a jury in the District Court at Geraldton, on one count of attempting to pervert the course of justice on 31 May 2003, by threatening behaviour to Mrs Lourna Whittle ("Mrs L Whittle"), a State witness, upon his prosecution on a charge of indecent assault, contrary to s 143 of the Criminal Code (WA).

3 In December 2001 the appellant (who was in his early sixties) had been charged with unlawful and indecent dealing with an incapable person on 30 November 2001. In April 2002 that charge was withdrawn and a charge of unlawful and indecent assault simpliciter ("the primary charge") was substituted for it. That was because a physiological report in March 2002 showed the complainant was not an incapable person. As at 31 May 2003, that charge was still pending.

4 On 2 May 2002, the appellant was also charged with sexual penetration of the complainant without her consent. That charge was subsequently discontinued on 29 July 2005.

6 Mrs L Whittle was an elderly Geraldton woman. She made a statement to police that she was an eyewitness to the incident in bushland near her house, out of which the indecent assault charge arose.

7 On 30 May 2003 the appellant telephoned Mrs L Whittle's son Noel, in Bunbury. He did not give his own name but indicated that he needed to speak to Mr Whittle in person.

8 The following day, 31 May 2003, in accordance with the arrangement made over the telephone with Mr Whittle, the appellant arrived at the Whittle's home in Bunbury. Again, he did not introduce himself. He was nonetheless invited into the house and he spoke to Mr Noel and Mrs Amanda Whittle on the patio at the rear of their house for about 30 minutes.

9 The appellant showed Mr and Mrs Whittle a copy of the statement made by Mrs L Whittle and told them that she had given the police a false statement. He told them that Mrs L Whittle could not have seen him even if he had no clothes on; that he and the complainant were only talking; that Mrs L Whittle had been pressured into giving a false statement by the complainant's mother; that he was innocent of the charge of indecent assault; that when he was proven innocent he would be taking people to court and seizing assets; that it was a serious matter to give a false statement and false evidence and Mrs L Whittle could go to gaol for five to seven years for it; that he did not want to get her into trouble and was trying to help her; and that he wanted her to withdraw her statement.

10 It was the prosecution case that these were threats which the appellant intended to be conveyed to Mrs L Whittle, that his conduct had the tendency to prevent her from giving evidence at his trial on the charge of indecent assault and that his intention at all times was to have her withdraw her statement and not give evidence in court for the prosecution at his trial.

11 In his defence, the appellant sought to adduce evidence to show that Mrs L Whittle's statement was false, that he was innocent of the charge of indecent assault, that he did not engage in conduct that had a tendency to pervert the course of justice, nor with any intent to pervert the course of justice and nor did he try to stop Mrs L Whittle from giving evidence against him. His purpose in visiting and speaking with Mr and Mrs Whittle was innocent and lawful and was only to point out that Mrs L Whittle had given a false statement, that the giving of a false statement and false evidence were serious matters and that Mrs L Whittle should tell the truth when she gave her evidence.

12 During the cross-examination of Noel Whittle, counsel for the appellant sought to question him on matters relating to the contents of the statement of Mrs L Whittle. The prosecutor objected on the basis of relevance as the questions related to the charge of unlawful and indecent assault. The trial Judge allowed counsel for the appellant to tender a photograph of the house near which Mrs L Whittle indicated in her statement she witnessed the indecent assault. The prosecutor also objected on the ground of relevance to counsel for the appellant tendering photographs that related to an area near the same house. There was a brief discussion before the luncheon adjournment as to the relevant authorities and that matter was adjourned.

13 During cross-examination of Senior Constable Wallace, counsel for the appellant sought to tender a bundle of handwritten letters from the complainant marked "MFI 12", an account from George Giudice Law Chambers marked "MFI 13", a bundle of photographs marked "MFI 14" and a tagged key marked "MFI 15". All of those items had been seized during a search of the appellant's house. The prosecutor objected to the admissibility of the exhibits on the ground they were not relevant.

14 During the cross-examination of Senior Constable Cotton, counsel for the appellant asked questions relating to the investigation of the charge of unlawful and indecent assault. The prosecutor objected to the line of questioning on the basis of relevance.

15 The trial Judge held a voir dire as to the relevance of the police investigation relating to the charge of unlawful and indecent assault. At the conclusion of the voir dire her Honour ruled inadmissible the items labelled "MFI 12", "MFI 13", "MFI 14" and "MFI 15". She also indicated how she intended to direct the jury.

16 Her Honour ruled that objectively the truth or otherwise of the statement to police by Mrs L Whittle was irrelevant to the charge of attempting to pervert the course of justice. She ruled as irrelevant the appellant's guilt or innocence on the charge of unlawful and indecent assault and she ultimately directed the jury to that effect.

17 Against that outline, I turn to the grounds of appeal against conviction. They are that:

"1. The Trial Judge erred in law in that she wrongly ruled that:-

(a) evidence which was sought to be led by the Appellant that would show the Appellant to be innocent/not guilty of the charge of unlawful and indecent assault on [N] was inadmissible;

(b) the exhibits sought to be tendered by the Appellant, namely exhibits MFI 3, 12, 13, 14 and 15 and found in the possession of the Appellant when the search warrant was executed with the exhibits which were tendered, namely exhibit numbers 4, 5, 6, 7, 8, 9, 10, 10.1 and 11 were inadmissible;

(c) the Appellant's guilt or innocence of the charge of unlawful and indecent assault was irrelevant to the charge of attempt to pervert the course of justice and the Appellant thereby had no defence to the charge other than on the issue of whether his conduct constituted threatening behaviour towards [Mrs L] Whittle.

1. The ruling denied the Appellant the opportunity to put to the jury his defence to the charge including:-

(a) evidence of his relationship with [N], the attempts made by [N's] mother to bring the relationship to an end and the continuation of that relationship up to the 30 November 2001;

(b) evidence of the scene of the alleged offence on the 30 November 2001 initially of indecent dealing with an incapable person later substituted for the charge of unlawful and indecent assault including photographs of the scene to show a lack of vision on the part of [Mrs L] Whittle to the alleged offence;

(c) the tendering of MFI 3, 12, 13, 14 and 15 and the giving of evidence relating thereto;

(d) evidence which would have given meaning to the Appellant's conversation with Noel Victor Whittle and Amanda Whittle at their home at Bunbury on the 31 May 2003 and placed the meeting in context with what had preceded the meeting to show the Appellant's purpose and intention to be innocent;

(e) evidence which would have shown that the Appellant did not engage in threatening behaviour towards [Mrs L] Whittle but was wanting her to tell the truth and was thereby engaged not in conduct attempting to pervert the course of justice nor intending to do so but in conduct by lawful means for Mrs Whittle to give evidence but to tell the truth at the trial so that justice occurred, thereby resulting in a miscarriage of justice.

1. The learned trial Judge erred in law in that she failed to allow the accused to put to the jury a defence properly open to him, that his actions did not amount to an attempt to pervert the course of justice in that all he sought to do was to persuade the witness [Mrs L] Whittle to tell the truth."

18 In broad terms, the appellant complains that the rulings made by the trial Judge denied him the opportunity to put his defence to the jury, including in particular, evidence of his relationship with the complainant and the attempts made by her mother to bring it to an end and the continuation of that relationship notwithstanding, up to 30 November 2001. He submits he was prevented from adducing evidence of the scene of the alleged offence on 30 November 2001, including photographs which he contends would have shown that Mrs L Whittle could not have seen what she said she saw. He contends he was prevented from giving evidence which would have given meaning to his conversation with Noel and Amanda Whittle on 31 May 2003 and placed the meeting in context with what had preceded it, to show his purpose and intention to have been innocent. Finally, he submits he was precluded thereby from giving evidence which would have shown he did not engage in threatening behaviour towards Mrs L Whittle, but was wanting her to tell the truth and was thereby engaged not in conduct attempting to pervert the course of justice, nor intending so to do, but lawful conduct seeking her to give truthful evidence at the trial.

Ground 1 - Evidence of innocence of primary charge inadmissible

19 Particulars (a) and (c) of this ground are effectively the same. The matters referred to in particular (b) were ruled by her Honour to be inadmissible because her Honour held that evidence to show the appellant was innocent of the primary charge was irrelevant and therefore inadmissible.

20 The appellant identifies as the relevant rulings for this ground, what her Honour said at t/s 33, 84 and 85 - 86.

21 The first occasion was in the course of cross-examination of Mr Noel Whittle. At the relevant time he owned the premises ("No 29") at which Mrs L Whittle was then living. He had never lived there, although he had visited the premises many times and was familiar with them. Counsel for the appellant showed him some photographs of the premises. Counsel asked questions about the area of bushland near the house. The State prosecutor objected on the ground of relevance. The trial Judge dealt with the objection in the absence of the jury. Counsel for the appellant explained that the State was not intending to call Mrs L Whittle and accordingly the purpose of his cross-examination of Mr Noel Whittle was to demonstrate that the latter's mother would not have been able to see the appellant and complainant from the house. He said that would give meaning to what the appellant would say in his evidence which would be that in the position they were in, in the bushland, they could not be seen from the house. Her Honour observed (t/s 33) that the trial was not about whether the appellant was guilty or otherwise of the primary charge; as to that, she said he may be a completely innocent man, but the issue was whether he attempted to pervert the course of justice by threatening behaviour. She said it would not matter whether the appellant was guilty or innocent of the primary charge or whether Mrs L Whittle was lying. The transcript then shows the following exchanges (t/s 33 - 34):

"YEATS DCJ: Overall, I just hope you're not misconstruing the nature of the charge against him because this is nothing to do with whether he's rightly or wrongly charged on the other. You just cannot use threatening behaviour in an attempt to pervert the course of justice upon your prosecution. Even if you believe a witness is lying, you can't do that.

ARMSTRONG, MR: Yes. It will be our submission, your Honour, if his purpose was to establish or endeavour to establish that the truth be told, that's not a perversion of justice. That is the maintenance of justice and in that regard I refer your Honour to a case - - -

YEATS DCJ: I think we will discuss this at the end of the day about the definition of attempting to pervert the course of justice, but his innocence or otherwise on the charge is, as I understand it, not relevant. I don't want to take time now because the accused by now surely needs a break himself. I think we need to discuss this because it goes to the nature of the defence.

PERRELLA, MR: Absolutely, your Honour, and this is something that I have raised with my friend in the past and the state [sic] maintains precisely as your Honour has indicated that whether or not Mrs Whittle has lied in her statement, it's completely immaterial to the outcome of this matter. Any investigation down the path of the truth or otherwise of her statement is going, in my respectful submission, to mislead the jury into thinking if the defence can establish the accused's man innocence on the indecent assault, then they have to find him innocent of this charge and that does not follow.

YEATS DCJ: No, it doesn't.

ARMSTRONG, MR: That's not, with respect, our position. Our position is that anything that the accused says to Mr Whittle, the accused is entitled to explain it and if his position is - and you have heard me put it to Mr Whittle - that he did not - I put it to him that he did not ask of Mr Whittle that he do anything. He didn't ask that her statement be withdrawn and I put it to him the position was that another general feeling might well be that he was wanting a message got to his mother to tell the truth. That's not an attempt to pervert the course of justice if you are wanting a witness to tell the truth."

22 Her Honour indicated that the issue would be revisited later.

23 Following an adjournment, counsel for the appellant put to Mr Noel Whittle three photographs of the house and the bush block. Her Honour marked those for identification pending further legal argument.

24 The next stage at which this point came up was during cross-examination of the police officer investigating the primary charge, Detective Senior Constable Cotton. The State prosecutor objected to a question whether he had prepared a plan of the area of the alleged assault. Again the objection was that whilst the fact of the investigation and subsequent charge were relevant to the charge of attempting to pervert the course of justice, the details of the investigation were not. Counsel for the appellant referred to Healy v The Queen (1995) 15 WAR 104 and Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132.

25 Counsel submitted to her Honour that the appellant's case was that Mrs L Whittle had given a false statement. Her Honour pointed out that the State's case against the appellant was that by using threatening behaviour toward Mrs L Whittle, he attempted to pervert the course of justice. The threatening behaviour was said to be the unlawful means. After further exchanges, her Honour ruled (t/s 82) that nothing about the investigation of the primary charge was relevant to the charge of attempting to pervert the course of justice and questions to that end would not be permitted. She stated that (t/s 83):

"Anyone who interferes with a witness by threatening behaviour so that the witness would decline or there's a tendency to prevent a witness coming to court would be an attempt to pervert the course of justice."

26 She reiterated that she would not receive evidence from the witness about his investigation of the primary charge.

27 Counsel reiterated that the case for the accused would be that he wanted Mrs L Whittle to tell the truth. Her Honour's response was that that was not a defence to the charge. There were then the following exchanges (t/s 84 - 86):

"ARMSTRONG, MR: He must be able to give evidence as to that as being part of the circumstance of the conversation with the Whittles. He must be able to say, 'I went down there to have this conversation with - - -'

YEATS DCJ: If he wants to say that, he can say it in this court. It's his evidence.

ARMSTRONG, MR: It's part of the - - -

YEATS DCJ: But I will have to direct the jury and charge them according to law. I'm not able to alter the law because your client has through your misguided advice to him believes [sic] that he has a defence. I don't see any defence to this charge, frankly, Mr Armstrong. If you believe somebody is giving evidence or has made a false statement, you go to court and you prove it's false or you go to the police and you say to the police, 'That is a false statement,' and the police investigate it, but you don't go to the son and use threatening behaviour to try to get the mother to withdraw her statement.

You don't do that. That's the attempt to pervert the course of justice because you're taking it outside of the course of justice.

ARMSTRONG, MR: Your Honour, I just wonder - I'm troubled by this. I'm just wondering whether we need a Full Court to determine the law on this.

YEATS DCJ. The Court of Appeal - we don't have a Full Court now. We have a Court of Appeal and they will look at my direction to the jury on this, but we're not stopping this trial, Mr Armstrong. I'm going to put this charge to the jury based on what the law is and you are misinterpreting the law, misunderstanding the law and that concerns me. Mr Perrella, is there anything I'm saying that concerns you?

PERRELLA, MR: No, not at all, your Honour. I have nothing to add to that. I would just seek in light of your Honour's ruling that exhibits MFI 3, MFI 12, 13, 14 and 15 not be tendered - sorry, MFI 3, which are the three photographs, MFI 12, which is the bundle of documents, including the letter to [N], MFI 13, the Giudice account and MFI 14, another bundle of three lots of photos and MFI 15 being the tagged key.

YEATS DCJ: Yes. Those will not be receiving [sic: received as] exhibits. Do you want to compose yourself for a moment as to what questions you do wish to ask of Mr Cotton? I wouldn't have thought this detective can help you much. In other words, what happened in the charges that were laid set the course of justice in motion. It's what happened in Bunbury when your client - apparently your client went down there at the end of May. It's that question that is before this jury and whether he used threatening behaviour towards [Mrs L] Whittle and thereby attempted to pervert the course of justice upon his trial. That's what this jury has to determine.

ARMSTRONG, MR: Yes. I don't have a problem with any of that. I have a problem - and, ma'am, you have made a ruling and I'm bound by that ruling. My problem is now how this accused person can give evidence to explain his actions in Bunbury, to explain why he was there without giving an account and explaining his words. His words, for instance, were - - -

YEATS DCJ: You see, he may deny that he said what they said he said. That's all - exactly how he defends himself.

ARMSTRONG, MR: I accept that, but he also says such things that all of what she said is untrue. The jury is going to say to themselves, 'That's very easy to say,' but if he says not only is it untrue, but I can prove I'm innocent, the jury might well say - - -

YEATS DCJ: I'm going to direct the jury that it is entirely irrelevant whether he is guilty or not guilty of that charge and it's irrelevant whether the mother of the witness Noel Whittle has given a false statement. The question is whether he in 2003 by using threatening behaviour toward her attempted to pervert the course of justice. If you want to lead that evidence, I can't stop you. It's his explanation of what he did, but it does not constitute any sort of defence to the charge. There are many people who believe they're innocent, but they can't go around interfering with witnesses.

ARMSTRONG, MR: No. There's not, with respect, many people who know they're innocent.

YEATS DCJ: Mr Armstrong - - -

ARMSTRONG, MR: And can prove that he's innocent.

YEATS MR: He will have the course of justice open. He can prove his innocence in that trial. He isn't going to be proving it in this trial because it's irrelevant to this charge.

ARMSTRONG, MR: I'm not seeking for him to prove it in this trial. I'm simply saying that he in this case goes down to Bunbury to speak to these people because he knows he is innocent.

YEATS DCJ: That would be his evidence.

ARMSTRONG, MR: Yes. But then my friend will say to the jury, 'But you have the statement of Mrs Whittle - - -'

YEATS DCJ: But it's irrelevant.

ARMSTRONG, MR: You will have my friend saying, 'You have the statement of Mrs Whittle where she actually signed a declaration declaring - - -'

YEATS DCJ: That's right.

ARMSTRONG, MR: The jury are told Mrs Whittle's statement is right because she signed a declaration.

YEATS DCJ: No. Mrs Whittle's statement is the evidence that the course of justice was on foot in relation to a charge against him. That's all it is. You're the one that tendered it not the state [sic].

ARMSTRONG, MR: My friend was the one that then had the witness read it out aloud.

YEATS DCJ: Mr Armstrong, if you tender documents then that's exactly what you can expect."

28 Her Honour then terminated the discussion and adjourned the court briefly.

29 I have already mentioned that MFI 3 consisted of the three photographs of Mrs L Whittle's house and the nearby bush area. MFI 12 was a bundle of documents, MFI 13 was an account from George Giudice Law Chambers, (the appellant's solicitors) dated 20 July 2001 for $50, MFI 14 was a bundle of three photographs of people and MFI 15 was a tagged key to N's home.

30 MFI 12 included handwritten letters from N to her father.

31 All these items were seized by police during a search of the appellant's residence.

32 That is all that was known about these items during the course of the trial. They were further explained in the course of counsel for the appellant's plea in mitigation, following his conviction. I shall return to that below.

33 On resumption, after some further brief cross-examination of Detective Senior Constable Cotton, the State closed its case.

34 The appellant gave evidence the following day. In his evidence-in-chief he said that he had met the complainant first when she was 25 years of age, when she was working at ACTIV Industries in Geraldton where he was a supervisor in the wood department. He said they formed a very strong relationship. Between September and November 2001 he would meet her on a corner opposite No 29 where there was a park and some bushes. They would meet three to four times a week in a secluded part in the bushes. He met her there on 30 November 2001 for about 10 minutes. They spoke about her going away on holidays and then went their separate ways after arranging to meet again the following week.

35 He was first charged with an offence rising out of the meeting on 30 November 2001, on 6 December that year. His solicitors were subsequently served with a statement made by Mrs L Whittle and they gave a copy to him.

36 Between 6 December 2001 and May 2003, he went to court 14 or 15 times in relation to the primary charge. It was starting to get him down having to go there with nothing happening. He telephoned Mrs L Whittle and told her he was a good friend of Noel's and that he would like to talk to him. Mrs L Whittle told him he had just missed Noel, who had been in Geraldton. She gave the appellant his telephone numbers and information about his times of work. He said he made telephone inquiries to the Dongara police, as a result of which he made notes about "Misleading statement to police, perjury for lying in court and prefabricated [sic] evidence". He also made notes about "Slander, professional defamation and malicious prosecution". He said all of this was because at the end of the trial he proposed to take the matter further. He was shown title deeds to No 29 and to the complainant's mother's home. He said he obtained those because he was prepared to put caveats on the properties for compensation.

37 The appellant said that he rang Noel Whittle about 30 May 2003 and went to Bunbury the following day. He met with Mr and Mrs Noel Whittle and had a conversation with them on the patio at the back. He had Mrs L Whittle's statement with him. He gave it to Mr and Mrs Noel Whittle who read it. He said he told them the statement was totally untrue and that it had been set up by another person, the complainant's mother. He said he did not ask them to get Mrs L Whittle to withdraw her statement or to get her to change her mind, because he wanted her to give evidence, but he wanted her to tell the truth. He agreed that he had told them that Mrs L Whittle could not see them from where she was even if they had no clothes on. He agreed he told them of the penalty for giving false evidence and mentioned 7 years in gaol, that being what the police in Dongara had told him. He reiterated that he went there because he wanted Mrs L Whittle to tell the truth. He denied that he told them he wanted her to withdraw her statement. He further agreed that he told them that when it was all over he would be taking witnesses to court. He said he was there referring to witnesses who were not telling the truth. He denied using threatening behaviour.

38 In cross-examination he reiterated that he told Mr and Mrs Noel Whittle that Mrs L Whittle's statement was totally untrue and he agreed that was what he believed. He said he believed that if she gave evidence in accordance with her statement, she would be giving perjured evidence. He denied putting pressure on Mr Whittle to get his mother to withdraw her statement.

39 The cross-examination ran in part (t/s 109 - 110):

"You gave evidence that you showed Mr and Mrs Whittle the statement of Lorna Whittle?---Correct.

And that you told them this statement was untrue?---Correct.

And totally untrue?---Totally untrue.

And incorrect?---Incorrect.

That's what you believed?---Yes.

That was your belief?---It is totally untrue.

You took that statement with you to Noel's house - the statement of Lorna Whittle?---Correct.

You can give those notes back to Mr Usher. Thank you. You took the statement of Mrs Whittle to Noel's house to show him?---Correct, that it was untrue.

To show him that it was untrue?---Correct.

And to tell him that you wanted his mother not to give that evidence - - -?---That's incorrect. I never mentioned the word, 'Not to give evidence.' All I said [sic: said was] I wanted his mother to tell the truth.

You made reference to five to seven years in gaol?---Yes. That was when I rang the Dongara police and I asked - - -

We don't need to know what they told you, but no doubt what you're referring to there is that's the penalty for perjury?---Perjury.

Perjury means someone who gives false evidence in court?---Correct.

You believed that if Mrs Whittle gave evidence in accordance with her statement she would be giving perjured evidence?---Yes, correct.

You have seen the statement of Mrs Whittle and I would ask if it could be shown to you again. It's exhibit number 2 please.

Mr Librizzi, you were saying the reason why you went to Noel's house was to help his mother?---Correct.

Right? You didn't want her to give false evidence - - -?---Correct.

- - - on the charge of indecent assault against you?---That's correct.

And that by telling her that five to seven years' gaol is the penalty for perjury, that you would somehow encourage her to give true evidence. Correct?---Could you repeat the question?

Yes. The reason why you mentioned the penalty of five to seven years in gaol was because you wanted Mrs Whittle to give true evidence in your mind?---True evidence."

40 In his address to the jury, the State prosecutor dealt with the element of threatening behaviour in the following way (t/s 116):

"Threatening behaviour: what was the threatening behaviour. The threatening behaviour was the pressure that he put on Noel Whittle by using words such as, 'I don't want to see your mother get hurt.' The accused man admits that he said that. Words like, 'Five to seven years in gaol,' were mentioned, completely unnecessary. Mrs Whittle had signed the statement and you will look at that statement and her declaration acknowledging that if she lied in her statement, she's guilty of a crime.

There was no need for the accused man to warn her of the penalty for perjury. The intention was to get her to withdraw the statement, applying pressure, threatening her through Noel. A mention of putting caveats on the properties, producing certificates of title, again, threats. He's saying that he was going to take the witnesses to court after the conclusion of the trial to prove that they were lying or that they had given false evidence or slandered him.

All of these things mount up to putting veiled threats - threatening behaviour to get her to withdraw her statement and the conduct which the accused persisted in only has to have the tendency of interfering with the administration of justice, and her Honour will direct you on that. The accused man has well and truly achieved that and that was his intention."

41 In his address to the jury, counsel for the appellant relevantly said that the appellant had told Mr and Mrs Noel Whittle that the statement of Mrs L Whittle was false, that it was a serious matter to give a false statement and false evidence and she could go to gaol for 5 to 7 years. He acknowledged that the appellant had told them that when it was all over he was taking the witnesses to court. He argued that the appellant was hoping that they would speak to Mrs L Whittle about what he was saying to them and that she would tell the truth about what had occurred. He contended the appellant engaged in no threatening behaviour whatsoever and that all he did was to give them advice as to the seriousness of giving a false statement and false evidence in the hope that they might speak to Mrs L Whittle and that as a result she would tell the truth. he said that was not conduct which demonstrated an intention to pervert the course of justice.

42 On the relevance or otherwise of the appellant's innocence of the primary charge, her Honour directed the jury (t/s 139):

"... there is an allegation against the accused man that back in 2001 he committed the offence of unlawful and indecent assault against a female named [N]. Whether he did that or not is not an issue that you need to consider in this trial. It's completely and entirely irrelevant. It is irrelevant as to whether he is guilty or not guilty of that charge. That is what we kept having the arguments about yesterday. You don't have to concern yourselves with that.

Your concern is whether the behaviour in 2003 amounted to an attempt to pervert the course of justice in relation to his trial, so you can see that, ladies and gentlemen, and it wouldn't matter if you're guilty or not, or it wouldn't matter if you believed you were innocent. If you do things to interfere with a witness, that can amount to have a tendency to pervert the course of justice by putting a witness off from doing what otherwise a witness would do and that's appearing at the trial and giving sworn evidence.

The issue for you to consider is whether you're satisfied that in 2003 at Bunbury this accused attempted to pervert the course of justice upon his prosecution on the charge of indecent assault by using threatening behaviour towards [Mrs L] Whittle, who is a witness against him in his prosecution for indecent assault. ..." (Emphasis added)

43 As to the offence charged, her Honour said (t/s 140):

"So far as witnesses are concerned, the course of justice includes that the witness appear at the accused's trial and give sworn evidence against him. If, therefore, an accused person engages in any conduct that has the tendency to intimidate or frighten or in any way stop a witness from giving evidence at a trial, that amounts as a matter of law to perverting the course of justice, interfering with the course of justice ..." (Emphasis added)

44 Her Honour directed the jury that first they had to be satisfied the appellant engaged in some conduct that had a tendency to pervert the course of justice. She said that was an objective test and in relation to that, the appellant's intention was irrelevant. She said that when considering objectively whether what the appellant had said and done at Bunbury at the Whittle's house, had a tendency to pervert the course of justice on his trial:

"It would do that if it had a tendency to put a witness off from giving evidence against him."

"The state [sic] case is simply that what he did and what he said to the Whittles in Bunbury amounted to threatening behaviour toward Mr Whittle's mother ... It included threats to place a caveat on her house, that she was going to go to gaol for giving false evidence, that after his trial he was going to sue her, so the state [sic] says that was threatening behaviour toward the Whittle's mother, although the threatening behaviour was towards the Whittles themselves.

The accused, as I understand the evidence, but this is a matter entirely for you, admitted saying most of those things, but his case is that his visit to the Whittles was cordial. He told you there were no raised voices. You would stand back from this, ladies and gentlemen, and you would probably realise that it doesn't matter whether you raise your voice or smile and say to a person quite calmly, 'You might regret giving evidence,' either way count [sic: could] amount to a threat, but his defence is there were no raised voices. It was cordial.

What you have to concern yourselves with her is just objectively looking at that half hour that the Whittles described, how it began, how it ended, what was said during it, the document they saw, their evidence about that, as you recall it, and you consider all the evidence. You cannot convict the accused of this offence unless you're satisfied that objectively - objectively looking at his conduct - he engaged in conduct that had a tendency to pervert the course of justice by threatening behaviour towards the witness [Mrs L] Whittle.

If you're left in any reasonable doubt about that, you would have to acquit him and bring in a verdict of not guilty. The second element of this charge, ladies and gentlemen, is the accused's intention. If you're satisfied that objectively, looking at what he did, it had a tendency to pervert the course of justice by being threatening behaviour in relation to [Mrs L] Whittle, then you have to step back and say, 'Did he intend by his conduct to pervert the course of justice?' that is to stop her from giving evidence against him." (Emphasis added)

46 Her Honour then rehearsed the salient features of the evidence given by Mr and Mrs Noel Whittle and the appellant and then reiterated the two elements she had identified. She said the first was that the jury had to look at everything that went on in Bunbury and consider whether they were satisfied the appellant engaged in conduct which objectively had a tendency to pervert the course of justice, that is to put Mrs L Whittle off giving evidence; and the second, whether he intended at the time to do that. The question there was whether his intention was to pervert the course of justice by putting her in fear by the threats he made so that she would not give evidence against him.

48 The offence was charged under s 143 of the Criminal Code (WA). That provides that any person who attempts to obstruct, prevent, pervert or defeat the course of justice is guilty of a crime. The elements of the offence are that the conduct of the accused has the tendency to, eg, pervert the course of justice, and the accused has the requisite intention. That intention does not have to involve awareness of the concepts of "perverting" or "the course of justice" - it is sufficient if the accused intended to engage in conduct which had that tendency (Meissner (supra) per Brennan, Toohey and McHugh JJ at 144; cf Hatty v Pilkinton (No 2) [1992] FCA 226; (1992) 35 FCR 433 per Black CJ at 439 and 441, which can no longer be regarded as good law on this point); that is to say, an intent to do something which, if achieved, would pervert the course of justice (Meissner, ibid, per Dawson J at 159).

49 In the United Kingdom, for many years, there was no statutory offence of attempting to pervert the course of justice. The authorities apparently relied upon a combination of the common law offence of conspiracy (Shaw v Director of Public Prosecutions [1961] UKHL 1; [1962] AC 220), where the offence involved more than one person, and the law of contempt of court. In R v Grimes [1968] 3 All ER 179 an argument was put, and rejected, that an attempt to defeat the course of justice was not an offence known to law. Judge Kilner-Brown regarded the offence to be "one against the common weal". That statement was subsequently approved in R v Kellett [1976] QB 372, 383. In Grimes (supra), there were two charges. The first alleged the use of a threat or persuasion to prevent a witness from giving evidence. That was held to be clearly an offence at common law, relying on Russell on Crime. The second count involved a false report to the police.

50 The lack of clear authority led the English Court of Appeal in Kellett (supra) to review the cases.

51 In Kellett, the appellant's wife had instituted divorce proceedings against him. His neighbours provided statements supporting her, to the wife's lawyers. The lawyers sent a copy of them to the appellant. At his instigation, a friend of his visited the neighbours with a concealed tape recorder and, posing as a prospective tenant of the appellant, asked them questions about him. She gave the tape to the appellant. He then wrote to the neighbours, stating that he was proposing to sue them for defamation and that he would discuss the amount of damages with his solicitor but first they might like to withdraw the statements they had made to his wife's lawyer. He was charged with two counts (there were two neighbours) of attempting to pervert the course of justice.

52 At the end of the Crown case Lord Widgery CJ held there was a case to answer because on the evidence the appellant's intention when threatening to sue the neighbours for defamation was to cause them to refrain from giving evidence in the divorce trial. The defence then called no evidence.

53 The Lord Chief Justice directed the jury first that they would have to decide whether in his letter the appellant was threatening to bring a slander action against the neighbours, and whether he was doing that with the intention of causing them not to give evidence. Later, he gave a second direction in which he added a further element, namely that the jury could not convict unless the appellant did not really mean to sue for slander and was making an empty threat only.

54 On appeal, the judgment of the Court of Appeal was read by Stephenson LJ. The Court noted that there was a lack of clear authority on the limits of the offence of attempting to pervert the course of justice. Although the cases showed that tampering with evidence, inducing a person to give false evidence, or not to give evidence, for reward were recognised instances of the common law offence, whether the evidence was to be given in criminal or civil proceedings and whether the inducement was effective or not, they were all concerned with the manufacture of false evidence or the withdrawal of a true complaint. They did not deal with the limits of the offence nor indicate whether it could be committed where the evidence of the potential witness was false or may be false, or whether it could be committed where the means used were not bribery or reward, but threats, or where the threats were to exercise a legal right, or where the intention of he who approached the potential witness was to exercise such a right or to see that justice (or what he believed to be justice) was done. The Court said it would seem repugnant to justice and to commonsense if in every one of those cases the "offender" could be said to be attempting to pervert or defeat or obstruct the course of justice, although there was some authority for supposing that any inference with a witness is such an offence and there was no clear guidance in the authorities on the limits within which such an interference with a witness might not be.

55 The Court accordingly traced the development of the offence from 1637. Having reviewed the texts and authorities, the Court concluded (at 386):

"First, we do not consider it fortuitous that there is no case in the books, as far as we know, which supports the extreme view indicated by some of the textbook statements that any interference with a witness is an attempt to pervert the course of justice. That would make a man guilty of this offence if he went privately to a witness who had made a false statement and by reasoned argument supported by material facts and documents tried to dissuade him from committing perjury and to persuade him to retract lies and tell the truth." [Emphasis in original]

56 Their Lordships observed that there was no warrant in the cases going so far; the truth of what the witness is to say is not irrelevant to such a charge: Bishop of Lincoln's Case (1637) 3 State Tr 770. With that authority in mind, their Lordships said (at 388):

"... we would not consider that the offence of attempting to pervert the course of justice would necessarily be committed by a person who tried to persuade a false witness, or even a witness he believed to be false, to speak the truth or to refrain from giving false evidence.

Second, with this among other authorities in mind, we think that however proper the end, the means must not be improper. Even if the intention of the meddler with a witness is to prevent perjury and injustice, he commits the offence if he meddles by unlawful means. Threats and bribery are the means used by offenders in the cases, and any pressure by those means - - or by force as for example by actually assaulting or detaining a witness - - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it 'through affection, fear, gain, reward, or the hope or promise thereof' (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope." (Emphasis added)

57 The particular question raised by the appeal was stated by the Court in these terms (390):

"... granted that a threat to induce a witness to refrain from giving evidence or to alter or retract evidence which he is intending to give is an unlawful interference, is any threat unlawful including a threat to do a lawful act, namely to exercise a legal right such as to sue for defamation?" (Emphasis in original)

58 The conclusion of the Court that the exercise of a legal right or the threat of exercising it does not excuse interfering with the administration of justice by deterring a witness from giving the evidence which he wishes to give before he has given it, has to be understood against the background of the authorities upon which their Lordships relied and the facts of the case before them. Thus, in Attorney-General v Butterworth [1963] 1 QB 696 it was held to be a contempt of court to deprive a man of his offices in a trade union because he had given evidence against it, even though punishment was not the fundamental motive. In Chapman v Honig [1963] 2 QB 502 it was held to be a contempt to give a man notice to quit for giving evidence against his landlord, even though the offender was acting lawfully in giving a month's notice.

59 The Court then referred (at 391) to Shaw v Shaw (1861) 2 Sw & Tr 517, in which:

"... the respondent to a divorce suit called on a former servant and threatened her with prosecution for perjury if she gave evidence of his cruelty to his wife. The judge ordinary found the respondent went with the intention of intimidating the servant and preventing her from giving evidence, and the respondent was saved from committal by apologising and payment of costs. That was clearly not only a contempt but an attempt to pervert the course of justice; and even if the servant's evidence had been false and the respondent had believed that she might be prosecuted for perjury after giving it, the threatening language he used would, in our opinion, have been enough to convict him of the attempt."

Their Lordships thought their opinion that threatening a witness (whether the threat was to do that which was otherwise lawful or not) was in line with the statutory offences of reprisal against or victimisation of witnesses at public inquiries (s 2 of the Witnesses (Public Inquiries) Protection Act 1892 (Eng.) and attempting to get a witness to give false evidence (s 7 Perjury Act 1911 (Eng.)). But where the attempt is to prevent a witness from giving evidence it may be necessary to indict for attempting to pervert the course of justice and (at 392): "Where it is made with threats - - or promises - - it is committed notwithstanding the threat is a threat to do a lawful act, provided that one of the motives which activates the accused in making the threat is to intimidate the witness into altering or withdrawing evidence". (Emphasis added)

60 Thus, if the appellant's intention in Kellett (supra) in threatening an action for slander was to make the neighbours withdraw their statements and not give evidence in accordance with them, he was guilty of the offence charged, whether he had in mind any other consideration or whether he intended to go on with the action or not. In that respect their Lordships approved the first direction given by Lord Widgery CJ, but not the second.

61 They held (at 392 - 393) that intentional interference with a witness will be enough to constitute the offence even where there is a belief in the falsity of the evidence to be given, if the means used are unlawful or improper, such as force or the threat of force, or reward or promise of reward. They concluded (392 - 393):

"There may be cases of interference with a witness in which it would be for the jury to decide whether what was done or said to the witness amounted to improper pressure and so wrongfully interfered with the witness and attempted to pervert the course of justice, and it would be not only unnecessary and unhelpful but wrong for this court or the trial judge to usurp their function. The decision will depend on all the circumstances of the case, including not merely the method of interfering but the time when it is done, the relationship between the person interfering and the witness and the nature of the proceedings in which the evidence is being given. Pressure which may be permissible at one stage of the particular proceedings may be improper at another. What may be proper for a friend or relation or a legal adviser may be oppressive and improper coming from a person in a position of influence or authority. But it is for the judge to direct the jury that some means of inducement are improper and if proved make the defendant guilty ... A jury should be directed that a threat (or promise) made to a witness is, like an assault on a witness, an attempt to pervert the course of justice if made with the intention of persuading him to alter or withhold his evidence, whether or not what he threatens (or promises) is a lawful act such as the exercise of a legal right and whether or not he has any other intention or intends to do the act if the evidence is not altered or withheld."

62 Kellett (supra) was followed and explained in R v Toney [1993] 2 All ER 409.

63 In that case the appellant's brother had been charged with robbery. Shortly before the trial the appellant spoke to a potential witness with whom he had been at school. He told him his brother had not been at the scene of the robbery. The witness did not wish to discuss the case. The appellant told the witness he was going to court to say he did not see two people. The witness replied that he did see two people, or words to that effect. The witness gave evidence and the brother was convicted. The appellant was convicted of doing an act tending to pervert the course of justice. He appealed on the ground that, since he had not used bribery, force or the threat of force, he had not used the unlawful means which were an essential ingredient of the offence. The Court of Appeal held that the use of unlawful means was not an essential ingredient of the offence, although generally the offence would be committed in one of those ways. The gist of the offence lies in telling a potential witness what he should or should not say with the intention of influencing his evidence, not in the means adopted.

64 It was submitted in Toney (supra) that Kellett (supra) established that for the offence to be made out there had to be both intentional inference with a witness and the use of improper or unlawful means. The Court explained that Kellett did not hold that both were always required - the passage relied upon in support of the submission was directed to the circumstances of that case, where it was assumed the end was proper (that is the appellant believed that the intended evidence would be false). In such a case, the offence would be committed only if the means were improper. On the other hand, the offence could be committed where the accused has not used any threat or other improper means of persuasion - as where the intent was to have the witness give false evidence.

65 The Court (Lloyd JL, Latham and Smith JJ) summarised the position as follows (414):

"(1) In the great majority of cases of perverting the course of justice by interfering with a witness the actus reus will be accompanied by unlawful means such as threats, bribery or improper pressure. (2) The use of unlawful means is not however an essential ingredient in the offence. The ingredients are those set out by the judge in his summing up, which we need not repeat. (3) In cases where the defendant might otherwise have a defence of lawful excuse, for example where his purpose is to persuade a false witness or a witness he believes to be false, not to commit perjury, he will nevertheless be liable if he employs unlawful means. (4) 'Unlawful means' in this context includes a threat to do any otherwise lawful act or to exercise a legal right. (5) In all cases the prosecution must prove the necessary intent."

66 The Court noted it had not been suggested the appellant had any genuine belief that the evidence to be given by the witness was false and it therefore followed from proposition (2) that there was a case, even though there was no evidence of unlawful means.

67 Proposition (4) was expressly disavowed by the High Court in Meissner (supra).

68 That case was somewhat unusual in that it did not involve an attempt to persuade a witness to change their evidence, but rather improperly influencing a defendant by bribing or intimidating her, to plead guilty to an offence. That necessitated consideration of the circumstances in which persuading a person to plead guilty to an offence might or might not constitute an attempt to pervert the course of justice, which is an aspect that does not concern us here. What is apposite here, is what the majority (Brennan, Toohey and McHugh JJ) said about a threat to do an otherwise legal act or exercise a legal right. At 142 they said:

"In R v Toney [[1993] 1 WLR 364 at 370, ... explaining R v Kellett [1976] QB 372], Lloyd LJ, speaking for the Court of Appeal, held that the offence of attempting to pervert the course of justice might be committed by a person who seeks to secure a legitimate end (for example, the persuading of a false witness not to commit perjury) by unlawful means and that 'unlawful means' includes a threat to do an otherwise legal act or exercise a legal right. With respect, we do not think that observation is right in principle. If the conduct of the alleged offender is no more than a threat to do what he might lawfully do in order to secure a legitimate end, we are unable to detect conduct which has a tendency to pervert the course of justice." (Emphasis added)

69 On the same point, Dawson J (dissenting in the result, but not on this point) said (158 - 159):

"Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper [R v Toney [1993] 1 WLR 364 at 370 ...]. However, in R v Kellett [[1976] QB 372] the Court of Appeal held that it would not necessarily be an attempt to pervert the course of justice for a person to endeavour to persuade a false witness, or even a witness that person believed to be false, to speak the truth or to refrain from giving false evidence. But the use of improper means for those purposes will always amount to that offence for however proper the end, the means must not be improper. As the court in R v Kellett, in speaking of improper means, put it (ibid at 388):

'Threats and bribery are the [improper] means used by offenders in the cases, and any pressure by those means - or by force, as for example by actually assaulting or detaining a witness - would, in our opinion, be an attempt to pervert the course of justice by unlawfully or wrongfully interfering with a witness. If he alters his evidence or will not give it "through affection, fear, gain, reward, or the hope or promise thereof" (in the words of the oath which used to be administered to the foreman of a grand jury), the course of justice is perverted, whether his evidence is true or false and whether or not it is believed to be so by him who puts him in fear or hope.'

R v Kellett was applied by the Court of Appeal in New Zealand in R v Taffs [[1991] 1 NZLR 69], Cooke P expressing the ratio of the former case as being that (ibid at 72):

'there may be an intention to pervert or defeat the course of justice if, once legal proceedings are in motion, they are not allowed to flow unobstructed and undiverted: perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open court, and justice should be administered in the way which is ordinarily pursued: it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or other improper pressure take the interference across the line and into criminality.'

And in R v Silverman [(1908) 14 CCC 79], a decision of the Ontario Court of Appeal cited in R v Kellett, MacLaren JA said (ibid at 83):

'The end does not justify the means. 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.'

Where improper means are used, the fact that the defendant believed the intended evidence to be false is no answer to a charge of attempting to pervert the course of justice. This is only a material issue 'if the defendant had used no threat or other improper means of dissuasion'." (Emphasis added)

70 There is a distinction between "unlawful" means and "improper" means. The majority in Meissner (supra) were not addressing that distinction. They confined their observation to "unlawful" means. Further, their observation was qualified. They acknowledged that a threat to do what the alleged offender might lawfully do may still constitute an offence of attempting to pervert the course of justice if the end it is intended to secure is not a legitimate end. So it was they went on to hold (at 143) that any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes the accused is guilty of the offence charged. That is because the plea of guilty would not be made as the result of the person's free choice.

71 Thus, in the context of interference with a witness, a threat to do that which would otherwise be lawful may yet constitute an attempt to pervert the course of justice if made for an improper purpose, such as to intimidate the witness and to induce the witness to withdraw or give different evidence by fear or by promise of some benefit, irrespective of whether the accused believed the intended evidence to be false or not. In such circumstances the threat would be one to do more than what the accused might lawfully do to secure a legitimate end.

72 It is a legitimate end to seek to persuade a witness, by reasoned argument, to tell the truth. It is not a legitimate end to seek to intimidate a witness by threats or otherwise to give evidence different to that they would give if left to their own choice, even if the accused believes the intended evidence is false.

73 This understanding is consistent with the common law authorities. Thus, in Butterworth's case (supra), even though it was lawful for the trade union to deprive the witness of his trade union offices, it was not a legitimate end to do that to mark the union's displeasure that he had given evidence against it. The effect would be to intimidate others from giving evidence against the union in the future, even though their evidence would be true. Chapman (supra) may be explained on the same basis.

74 In Kellett (supra) itself, the appellant was lawfully entitled to sue the neighbours for the statements they had made to his friend which he regarded as slanderous. But to endeavour to use the threat of exercising that right to exert pressure on the neighbours so as to intimidate them into withdrawing their statements and not giving the evidence went beyond threatening to do what he might lawfully do and also sought to achieve an end which was not a legitimate end - namely to cause them to withdraw their evidence, not as the exercise of a free decision made by them after reasoned argument, but because they were intimidated by his threat.

75 The authorities consistently speak of the elements of the offence being the doing of some act which has a tendency and is intended to pervert justice. That formulation derives from what Pollock B said in R v Vreones [1891] 1 QB 360, 369 (and see R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 275 - 276, 279, 297). It is useful at this point to expand on what was said about the element of intention in Meissner.

76 Brennan CJ, Toohey and McHugh JJ observed (at 143) that conduct which has the tendency to induce a person to plead guilty when that person would have pleaded not guilty had they exercised a free choice in their own interests, establishes the actus reus of an attempt to pervert the course of justice. Of course their Honours put it in those terms because that was what had been alleged in that case. They drew on what had been said by Brennan and Toohey JJ in Rogerson (at 280):

"Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions, An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice ..." (Emphasis added)

77 Brennan and Toohey JJ went on to explain that as with the offences of perverting the course of justice or conspiracy to pervert the course of justice, that of attempting to pervert the course of justice requires proof of a specific intent, and that:

"... in the case of an attempt to pervert the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned."

78 Thus, the relevant intent which must accompany the conduct might (for example) be an intent to hinder access to the court, to deflect an application that might be made to it or to deny the court knowledge of the true circumstances of the case.

79 Then in Meissner, Brennan CJ, Toohey and McHugh JJ said (at 144):

"... even when the conduct in question has tended to interfere with the administration of justice by tending to deprive the accused of the free choice to plead not guilty to a charge, the offence of attempting to pervert the course of justice is not established unless the conduct was also accompanied by an intention to pervert the course of justice. This does not mean that person cannot be guilty of attempting to pervert the course of justice unless he or she has the concepts of 'perverting' and 'the course of justice' in mind while engaging in the conduct. It is sufficient proof of intention that the person intended to engage in conduct for a purpose that in law constitutes the actus reus of an attempt to pervert the course of justice. Thus, a person commits that offence if he or she pays money to an accused to plead guilty to a charge for the purpose and with the intention of protecting the reputation of others who might be damaged by the publicity arising from a trial of the charge even though the payer has never heard of the phrase 'perverting the course of justice'."

80 So far as the present case is concerned, the principles established by the authorities may relevantly be summarised as follows:

(1) The offence will be committed where the conduct or statements of the accused have the tendency to pervert the course of justice and the accused engaged in the conduct or made the statements with that intent (R v Vreones (supra) at 369; R v Rogerson (supra) at 279 and Meissner (supra) at 140 - 142).

(2) It is not necessary to prove that the accused's intention was in terms an intent to pervert the course of justice - it is sufficient if the accused intended to engage in conduct which had that tendency for the purpose of giving effect to it; namely that it was an intent to do something which, if achieved, would pervert the course of justice (Meissner (supra), 143 - 146).

(3) Any attempt to persuade a witness to give false or perjured evidence or to refrain from telling the truth would clearly be an attempt to pervert the course of justice (Kellett).

(4) It is lawful to try to dissuade a witness from giving false or perjured evidence (or evidence the accused honestly believes would be false or perjured) by reasoned arguments, which may be supported by material facts and documents (Kellett (supra) 388; R v Taffs [1991] 1 NZLR 69, 72; Meissner (supra), 142 - 143).

(5) The use of any improper or unlawful means to persuade a witness not to give, or to change, their intended evidence, will constitute an attempt to pervert the course of justice even if the accused honestly believes the intended evidence is false (Kellett, ibid).

(6) It follows that a belief that the intended evidence is false and that the accused is intending the witness should tell the truth, will be a defence only where no improper or unlawful means are used.

(7) Conduct which is no more than a threat to do what the accused might lawfully do in order to secure a legitimate end is not conduct which has a tendency to pervert the course of justice (Meissner (supra) at 142 - 143).

(8) Whether a threat goes beyond one to do that which the accused might lawfully do, or was not made to secure a legitimate end, are questions for the jury (Kellett, 392 - 393).

81 In this case, the appellant maintained that Mrs L Whittle's statement was false and that all he was trying to do was persuade her to tell the truth. In that circumstance, his belief in the falsity of her proposed evidence would preclude his conviction unless he used improper or unlawful means to achieve that purpose. However, that he had done so was the very case the State put against him. The offence actually charged was that he attempted to pervert the course of justice "... by threatening behaviour towards ..." Mrs L Whittle. It was also put that he had sought to persuade her to withdraw her statement and not give evidence against him at all (that is, not to tell the truth).

82 In his supplementary outline of submissions filed 12 May 2006, Mr Weldon referred to Kellett (supra) and submitted that (irrespective of a belief in the falsity of the evidence the witness intended to give) the means "must not be improper" and that threats or inducements are wrongful means. He referred to the use of improper means (including otherwise lawful means) to persuade a witness to give truthful evidence (or not to give false evidence) and, on the basis of the observation of the Court in Toney (supra), that the impropriety may attach to the circumstances, instanced as an example that A can tell B that he will enforce repayment of a legal debt, but cannot do so in order to place pressure on B as a witness. He accepted that if the means are improper, the accused's motive or intention is irrelevant and that to threaten or bribe a witness is always wrong. He then submitted that the cases do not establish that to use lawful means to persuade a witness to give truthful evidence is an offence. I would accept those submissions as expressed. In this case, the argument advanced for the appellant, as I have explained, was that all he was doing was using lawful means to persuade Mrs L Whittle to tell the truth. That was a question for the jury - and the correlative question was whether, by his conduct, the appellant was attempting to place pressure on her to change or withhold her intended testimony. Even if the threat was to do something he might lawfully do, consistently with the common law authorities, the majority in Meissner (supra) and Cook P in R v Taffs (supra), he would still commit the offence if, by that threat, he was attempting to pressure her into changing or withdrawing her evidence, so as to override her free choice in the matter.

83 It is convenient at this point to explain what the appellant's trial counsel saw as the relevance of the excluded MFIs, by reference to his plea in mitigation.

84 According to counsel, following the appellant pleading not guilty to the charge of sexual penetration of N without her consent, the DPP had the police carry out further investigations.

85 In her original statements, N had complained that the appellant had sexually assaulted her, including having sexual intercourse with her, without consent. What she had failed to disclose was that the two of them had been in a sexual relationship from February until 30 November 2001. It ceased only when the appellant was charged with the first offence of indecent dealing with an incapable person, because the bail conditions then imposed prevented him from having any further contact with her.

86 Following further investigations, police obtained a third statement from N in which she admitted there had been a relationship between her and the appellant. The DPP then filed a notice dated 28 July 2005 discontinuing the charge of sexual penetration without consent.

87 Counsel for the appellant told her Honour that there were complex issues being dealt with by the appellant and N. One of those was her relationship with her stepfather, who it was alleged had been sexually abusing her. The appellant and N went to George Giudice Law Chambers and obtained legal advice as to her relationship with her stepfather. The account from George Giudice Law Chambers was said to be in respect of that visit.

88 The letter to N's stepfather (MFI 13) had been prepared by the appellant and N and sought to deal with the issue of the sexual abuse.

89 N's mother and stepfather discovered her relationship with the appellant in August 2001. They went to N's home. She was not there. They found the account from George Giudice Law Chambers and other material which led them to contact a Mrs B from ACTIV Industries in an effort to locate the appellant and thereby locate N.

90 By then the appellant had moved to the same street in which N lived, although at the opposite end.

91 On 27 August 2001, Mrs B with N's mother and stepfather, went to the appellant's flat and there found N dressed in pyjamas and the appellant in a pair of boxer shorts. There was a scene in the flat in which the stepfather demanded to know what was going on and the appellant was said to have said "Nothing different to what's been going on between you and [N] for years".

92 Thereafter, attempts were made by the mother and stepfather to bring up the relationship between the appellant and N.

93 N and the appellant met secretly from September through to 30 November 2001 in the park and also spoke regularly by telephone.

94 Eventually N's mother visited the appellant at his home and threatened that unless he kept away from her daughter, she was going to report him to the police and see him in gaol.

95 Counsel said that the evidence as to the relationship between N and the appellant included the key to N's home, as well as the other photographs showing the appellant and N at a social function at ACTIV Industries. All of this was put to show the ongoing relationship between them. It was also suggested that N's mother was seeking to bring an end to the relationship and also trying to deflect attention away from N's stepfather.

96 Her Honour was correct to rule that evidence to show that the appellant was innocent of the primary charge was irrelevant and inadmissible. However, the submissions put the appellant's complaint differently to the way the ground and particulars are expressed. Counsel at trial insisted he was not seeking to show the appellant was in fact innocent of the primary charge (although he did appear to convey the impression from time to time that he was) and that he was really seeking to show only that the appellant had a reasonable basis for his belief that Mrs L Whittle's statement was false. The distinction may be a fine one, but I would accept it is a real one. The question is whether it matters in the circumstances of this case.

97 From the authorities to which I have referred, it is apparent that although it would not matter if the appellant was innocent or guilty of the primary charge, nor if Mrs L Whittle's statement was untrue, it could well have mattered for the appellant to have had a genuine belief that her statement was false - unless the offence charged was that he used threatening conduct to pressure her into either changing or withdrawing her statement. In fact, that was exactly what was being alleged.

98 Her Honour's view appears to have been from the outset that once the appellant was shown to have "threatened" Mrs L Whittle, he had no defence in law. That may have been so, but it was a question for the jury as to whether the threats were no more than to do what the appellant might lawfully do in order to secure a legitimate end, or rather were more than that, or were not made to secure a legitimate end. It will be necessary to deal with this aspect more specifically in respect of ground 3.

99 On the State case, the appellant's belief as to the truth or falsity of the statement was always irrelevant because their case from the start was that he had used threatening behaviour to pressure her to act in the way he desired.

101 As it was, her Honour did permit the appellant to give evidence that he believed the statement to be false and that was what he said to Mr and Mrs Noel Whittle, and that he went to see them because he wanted Mrs L Whittle to tell the truth.

102 The appellant's defence to the charge of attempting to pervert the course of justice could not properly have encompassed evidence of his relationship with N nor the other matters set out in particular (a). Those matters could not bear upon the appellant's belief as to the truth or falsity of the witness' statement, otherwise than by way of seeking to prove he was innocent of the primary charge.

104 The "evidence" referred to in particular (d) and (e) is not identified by the appellant, either at trial or in his written or oral submissions on the appeal. That being so, it is impossible to reach any conclusion about them other than that they have not been made out.

Ground 3 - Failure to allow defence properly open to be put

106 Once again, even though this ground was formulated by counsel after the hearing and as a result of exchanges with the Court during it, the ground does not really reflect the argument being put, unless the whole point of it can be said to turn on the phrase that "all he sought to do" was to persuade Mrs L Whittle to tell the truth. In light of the submissions actually advanced, I will approach it in that way.

107 Mr Weldon encapsulated his submissions by contending that the ruling of the trial Judge (and her subsequent directions in accordance with it) removed from the jury the first question, namely whether the prosecution had proved the appellant's motive (meaning here, though, his intention) was an improper one. It is submitted that by her ruling and the direction that "as a matter of law" any conduct that has a tendency to stop a witness giving evidence, removed a defence properly open to the appellant, namely that he was seeking to use proper means to persuade the witness from giving evidence he believed was false.

108 The first way in which this is particularised in the appellant's submissions (although no particulars are given in the ground) is that by her Honour's ruling the appellant was denied the opportunity to put before the jury evidence of his relationship with N, the attempts made by N's mother to bring the relationship to an end and the continuation of that relationship to 30 November 2001. I accept her Honour's ruling did have that effect. But such evidence was rightly excluded. It could only have gone to the issue whether or not the appellant was guilty of the primary charge. That was irrelevant to this trial.

109 The second area of evidence it is said the appellant was denied the opportunity of putting before the jury was that relating to the scene of the offence alleged by the primary charge, including the photographs. Evidence that what the witness said she saw, could not physically have been seen from her house - and that was one of the reasons for the appellant's belief that her evidence was false - bore on the genuineness of his belief and his intention. However all of that was irrelevant.

110 The third way in which this ground was "particularised" in the appellant's submissions, is by reference to the tendering of MFI 3, MFI 12, MFI 13, MFI 14 and MFI 15 "and the given of evidence thereto". I have already dealt with this.

111 The fourth submission (d) speaks of evidence which would have given meaning to the appellant's conversation with the Whittles at their home at Bunbury on 31 May 2003 and placed the meeting in context with what had preceded it, to show the appellant's purpose and intention to be innocent. That is not further particularised and is meaningless. It is impossible to deal with it.

112 The same applies to (e) being the next aspect referred to which is described as evidence which would have shown the appellant did not engage in threatening behaviour towards Mrs L Whittle, but was wanting her to tell the truth and was thereby engaged not in conduct attempting to pervert the course of justice nor intending to do so, but in conduct by lawful means urging her to give evidence to tell the truth at the trial so that justice occurred, thereby resulting in a miscarriage of justice.

113 All that is said about the evidence comprehended by (d) and (e) is that a summary of the evidence and the additional evidence sought to be given appears in counsel's submissions in mitigation.

114 That was where Mr Armstrong recounted the history of the charge(s), the sexual relationship between the appellant and N, the "complex issues" to which I have already referred, the alleged sexual abuse by N's step-father, the photographs and documents, telephone records relating to other witnesses, evidence that the appellant had a key to N's apartment and the like. This list is almost, but by no means entirely, exhaustive. This all seems to me to go only to endeavouring to prove the appellant was innocent of the primary charge and was therefore inadmissible on this trial. All of that is really encapsulated in Mr Armstrong's submissions to her Honour, speaking of the appellant's instructions to him about the circumstances concerning the primary charge (t/s 152):

"If the offender's instructions are correct, then her statement is false. The pieces of paper, the photographs, the key, the list of witnesses which you have seen which is the offender's list of witnesses, you heard evidence of that and there's many witnesses and they include a number of people who were aware of the relationship at Activ Industries. Also, there are witnesses in that list who are employees of Activ Industries who used to speak to [N] about the stepfather and were also people that used to speak to [N] about her relationship with the offender.

I'm told that there's a whole host of witnesses that will confirm that relationship. The point that I make, your Honour, is on the face of it he has a strong and credible defence to the charge of indecent assault. As to why a person who has a strong and credible defence to a charge of indecent assault might then go down to Bunbury is to me a mystery. He agrees that what he did was stupid."

115 Shortly afterwards, at t/s 153, Mr Armstrong said:

"I would say to your Honour there's not many cases like the one that has presented itself to you where there seems to be not only a person saying, 'I'm not guilty,' but there seems to be credible evidence that supports his innocence to (sic) the charge."

116 Her Honour was quite correct to preclude evidence being adduced seeking to show the appellant was not guilty of the primary charge. None of the evidence identified as being that which the appellant had wanted to adduce in this way, would have been admissible.

117 Her Honour directed the jury (t/s 140) that any conduct that has the tendency to intimidate or frighten or in any way stop a witness from giving evidence at a trial amounts as a matter of law to perverting the course of justice. Her Honour repeated that direction at t/s 141 when she told the jury the appellant's conduct would have the tendency to pervert the course of justice "... if it had a tendency to put a witness off from giving evidence against him". The way her Honour expressed that in the first passage suggested any such conduct which had that tendency would amount to actually perverting the course of justice - which was not correct, but I think this was of no particular significance in the circumstances of this case. What is significant is the proposition that, as a matter of law, any conduct which has a tendency to stop a witness from giving evidence at trial is an attempt to pervert the course of justice. That would be so only if the intent were to stop the witness giving truthful evidence, or alternatively, where the intent was to stop the witness giving false evidence, unlawful or improper means were used. In this case, the defence was that the appellant was trying only to persuade the witness not to give evidence he believed to be false.

118 Similarly, her Honour told the jury the second element the prosecution had to prove was the appellant's intention. The question her Honour posed for them to answer (t/s 141) was "'Did he intend by his conduct to pervert the course of justice?' that is, to stop her from giving evidence against him".

119 It seems to me that having regard to the charge as framed on the indictment and the way the prosecution case was put, the critical issues raised by what was sought to be advanced by the defence, were whether:

• what the appellant said and did amount to "threatening conduct"; and if so,
• whether it went beyond a threat to do merely that which he might lawfully do to secure a legitimate end; and if so
• whether that conduct had a tendency to pervert the course of justice - that is to say, to cause Mrs L Whittle to change or withdraw her statement otherwise than in the exercise by her of a free choice; and
• whether he intended by his conduct to achieve that result.

The issues were never left in that way to the jury.

120 On the evidence, the two questions posed for the jury by her Honour made a conviction inevitable. The directions given deprived the appellant of having the jury consider the defence he was seeking to put. There was, accordingly, a miscarriage of justice.

121 An appeal may not be upheld even where a ground would be successfully made out, if the error has not resulted in a substantial miscarriage of justice (s 30(4) of the Criminal Appeals Act 2004 (WA)). I advert to that here because towards the end of her directions the trial Judge restated her direction about the appellant's intention in a way which did correctly identify the requirement that the prosecution prove the intimidation of the witness so that she would not give evidence out of fear. Her Honour said (t/s 143):

"Was his intention to pervert the course of justice so that she would be put in fear by the threats he put so that she wouldn't give evidence against him?"

122 If it be assumed that the jury could have returned a verdict of guilty only if satisfied beyond reasonable doubt that the appellant's intention was to cause the witness not to give (or to change) her evidence out of fear because of his threats, then he must have been convicted even had his defence, that he was seeking to persuade her not to give evidence he believed to be false, been properly put before the jury, and the issues had been identified in the way I have described. That would be so because even if his intention was to cause her not to give evidence he believed to be false, the means used would have been improper. Had they been properly directed, the jury could have come to no other conclusion.

123 On the appellant's own evidence, he told the Whittles that if Mrs L Whittle did not change her statement she would be guilty of perjury and go to gaol for 5 to 7 years; that after the case he would put a caveat on their house and that he would sue the witnesses; and that his intention in all this was to cause Mrs L Whittle to tell the truth (that necessarily meant he wanted her to change her statement). The only possible conclusion was that these were threats to do more than he might lawfully do to achieve a legitimate end. It would not have been lawful conduct to achieve a legitimate end for the appellant to put a caveat on the Whittle's house, nor to sue the witnesses for giving evidence against him. In this respect the position is factually similar to Kellett. Whether or not it might otherwise have constituted the offence, to seek to persuade a witness the accused believed was intending to give false evidence, not to do so, because that would be perjury, that particular threat here necessarily took its colour from the threats to sue and put on caveats.

124 Furthermore, it was the appellant's own evidence that by his conduct he intended to achieve the end of causing Mrs L Whittle to change her statement because of the threats (although he refused to describe them as such) he made.

125 On a consideration of the whole case, making that independent assessment of the evidence and due allowance for the "natural limitations" which exist in an appellate court proceeding wholly on the record, andhaving due regard to the verdict returned by the jury in light of the directions actually given by the trial Judge, I am satisfied the appellant was proved beyond reasonable doubt to be guilty of the offence on which

the jury returned that verdict (Weiss v The Queen [2005] HCA 81; (2005) 80 ALJR 444). There was accordingly no substantial miscarriage of justice.

127 I agree with the reasons and conclusions of Buss JA.

128 PULLIN JA: I have read the reasons for decision of Roberts-Smith JA and Buss JA. I agree with them that the appeal against conviction should be dismissed.

129 In Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 140 - 141, Brennan, Toohey and McHugh JJ said:

"A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice."

130 Their Honours said in the same case, at 142 - 143:

"In R v Toney [1993] 1 WLR 364 at 370; [1993] 2 All ER 409 at 414, explaining R v Kellett [1976] QB 372, Lloyd LJ, speaking for the Court of Appeal, held that the offence of attempting to pervert the course of justice might be committed by a person who seeks to secure a legitimate end (for example, the persuading of a false witness not to commit perjury) by unlawful means and that 'unlawful means' includes a threat to do an otherwise legal act or exercise a legal right. With respect, we do not think that observation is right in principle. If the conduct of the alleged offender is no more than a threat to do what he might lawfully do in order to secure a legitimate end, we are unable to detect conduct which has a tendency to pervert the course of justice. But, accepting that that is so, it is not a legitimate end to persuade a person to plead guilty otherwise than in the exercise of a free choice in his or her own interests.

Any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged."

131 It follows that if no offence is committed by a person who merely seeks to persuade a "false witness" not to commit perjury by reasoned argument and without any threats then, in an appropriate case, it would appear to be open to seek to prove that a witness is a "false witness", or at least for the accused person to show that he or she believe the witness was a false witness or that the accused had reasonable grounds for believing that the witness was a false witness. What the above passage makes clear, however, is that even if the accused believes that the witness is a false witness, it is not legitimate to intimidate the witness in an endeavour to persuade the witness not to give false evidence.

132 In this instance, the case against the appellant was that the appellant engaged in threatening behaviour in an endeavour to persuade Mrs Whittle not to give evidence in accordance with her statement. The case was presented and fought on the basis that, if the threats were not made, then the jury was obliged to find the appellant not guilty. Her Honour directed the jury in those terms. No issue has been raised on this appeal to the effect that, if the threats were made, they were lawful. The appellant's case was that he made no threats.

133 The result is that evidence about whether Mrs Whittle was a false witness, whether the appellant believed that Mrs Whittle was going to give false evidence or whether the appellant had reasonable grounds for such belief was irrelevant. If the appellant made the threats with the necessary intent, he was guilty. If he did not make the threats, he was not guilty. The Judge's ruling excluding the evidence was therefore correct. Similarly, the ruling did not deny the appellant the opportunity to put a defence to the charge because, whether Mrs Whittle's evidence was false, whether the appellant believed it was false, and whether he had grounds for his belief did not afford a defence to the charge as formulated. For those reasons I consider that all grounds in the appeal against conviction should be dismissed.

134 As to the appeal against sentence, I agree that it should be dismissed for the reasons given by Buss JA.

135 BUSS JA: The background facts and the grounds of the appeal against conviction are set out in the reasons of Roberts-Smith JA.

136 The indictment against the appellant alleged that:

"On 31 May 2003 at Bunbury [the appellant], by using threatening behaviour towards LOURNA MERLE WHITTLE,

attempted to pervert the course of justice upon the prosecution of [the appellant] on a charge of indecent assault",

137 The appellant was convicted after a trial before Yeats DCJ and a jury. Her Honour sentenced the appellant to a term of 15 months' immediate imprisonment. A parole eligibility order was made.

Aspects of s 143 of the Criminal Code

"Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years."

139 A person is guilty of attempting to pervert the course of justice when he or she engages in conduct which has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. See R v Vreones [1891] 1 QB 360 at 369; R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 609; R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 275 - 276, 279, 297; Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 at 140 - 141, 148, 156. Section 143 creates a substantive offence. See Rogerson at 279, 297; Meissner at 141. It is irrelevant whether or not the conduct in question succeeds in perverting the course of justice. It is the tendency of that conduct which is decisive. See Rogerson at 277, 280, 298; Meissner at 141. The notion of "perverting" the course of justice involves nothing more than adversely interfering with its proper administration. See Meissner at 148.

140 In Rogerson, Brennan and Toohey JJ said, at 280:

"The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case (R v Todd [1957] SASR 305 at 328). The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. An act which effects any such impairment is the actus reus of a perversion of the course of justice."

141 In Meissner, Brennan, Toohey and McHugh JJ held, at 141, that it is an attempt to pervert the course of justice to use "improper means" to secure a plea of guilty from an accused in pending criminal proceedings. Their Honours noted, at 142 - 143, that if the conduct in question is merely a threat to do what the alleged offender might lawfully do in order to secure a "legitimate end", that conduct would not have a tendency to pervert the course of justice. They added, however, that it is not a legitimate end to persuade an accused to plead guilty otherwise than in the exercise of a free choice in his or her own interests. Brennan, Toohey and McHugh JJ then said, at 143:

"Any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes that the accused is guilty of the offence with which he or she is charged. A plea made as the result of intimidation has not been made freely and voluntarily, and the court that acts on the plea has been misled and its proceedings have been rendered abortive, whether or not it ever becomes aware of the impropriety. For similar reasons, improper conduct of any kind that has the tendency to interfere with an accused person's right to make a free and voluntary decision to plead not guilty to a charge must be regarded as having a tendency to pervert the course of justice. If that conduct is accompanied by an intention to pervert the course of justice, the person engaging in the conduct will be guilty of attempting to pervert the course of justice."

Their Honours acknowledged, at 143, that it will often be difficult to determine whether conduct that falls short of intimidation, but which has the tendency to induce an accused to plead guilty, is improper conduct. They said:

"Argument or advice that merely seeks to persuade the accused to plead guilty is not improper conduct for this purpose, no matter how strongly the argument or advice is put. Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge. As long as the argument or advice does not constitute harassment or other improper pressure and leaves the accused free to make the choice, no interference with the administration of justice occurs."

142 The essence of the offence, including the requisite intention of the accused, was stated by Pollock B in Vreones, at 369, as "the doing of some act which has a tendency and is intended to pervert the administration of public justice". That formulation has been approved by the High Court on numerous occasions. See Murphy at 609; Rogerson at 275 - 276, 279, 297; Meissner at 140 - 141, 148, 156. In Meissner, the nature of the intention of the accused was considered by Brennan, Toohey and McHugh JJ, who said, at 144:

" ... even when the conduct in question has tended to interfere with the administration of justice by tending to deprive the accused of the free choice to plead not guilty to a charge, the offence of attempting to pervert the course of justice is not established unless the conduct was also accompanied by an intention to pervert the course of justice. This does not mean that a person cannot be guilty of attempting to pervert the course of justice unless he or she has the concepts of 'perverting' and 'the course of justice' in mind while engaging in the conduct. It is sufficient proof of intention that the person intended to engage in conduct for a purpose that in law constitutes the actus reus of an attempt to pervert the course of justice. Thus, a person commits that offence if he or she pays money to an accused to plead guilty to a charge for the purpose and with the intention of protecting the reputation of others who might be damaged by the publicity arising from a trial of the charge even though the payer has never heard of the phrase 'perverting the course of justice'."

The motive with which the accused engages in the impugned conduct is not an element of the offence, and is irrelevant except to the extent that, in a particular case, it may illuminate the accused's intention. See Meissner per Brennan, Toohey and McHugh JJ at 144 and per Dawson J at 159.

143 The means by which the course of justice may be perverted have not been comprehensively defined. See Meissner per Dawson J at 157. It is established, however, that the course of justice may be perverted when a court is denied knowledge of the true circumstances of the case. See Rogerson at 280; Meissner per Dawson J at 157. An attempt to induce a plea of guilty by improper means is an attempt to deny to the court knowledge of the true circumstances of the case in that the court must assume, absent any contrary indication, that a plea has been made freely and voluntarily. See Meissner per Dawson J at 158. There is a close analogy between cases where attempts have been made to induce a plea of guilty by improper means and cases where attempts have been made by improper means to induce witnesses to withdraw or alter their evidence. See Meissner per Dawson J at 158.

144 In R v Kellett [1976] QB 372, the English Court of Appeal held that the accused was properly convicted of attempting to pervert the course of justice in circumstances where he threatened to sue for slander if potential witnesses in divorce proceedings gave evidence which the accused may have believed false. The ratio of Kellett was expressed by Cooke P (who delivered the judgment of the Court of Appeal of New Zealand) in R v Taffs [1991] 1 NZLR 69 at 72:

" ... The ratio of Kellett, appearing clearly when the judgment is read as a whole, is that there may be an intention to pervert or defeat the course of justice if, once legal proceedings are in motion, they are not allowed to flow unobstructed and undiverted: perjury should be exposed and truth ascertained only by examination and cross-examination of witnesses in open Court, and justice should be administered in the way which is ordinarily pursued: it is lawful to try to dissuade a witness from committing perjury by reasoned arguments supported by material facts and documents, but threats or other improper pressure take the interference across the line and into criminality."

In an article, "Evading Justice" [1975] Crim LR 430 at 611, Prof Glanville Williams supported the decision in Kellett on the ground that "a party ought not to use improper means to stifle opposing evidence, even though he himself believes it to be mistaken". In Taffs, the Court of Appeal of New Zealand applied Kellett. Cooke P said, at 73:

" ... threats or other improper pressure intended to lead a potential witness not to give evidence or to alter his proposed evidence transgresses s 117 [of the Crimes Act 1961 (NZ)] no matter whether or not the person uttering the threats or applying the other pressure believes that the proposed evidence would be false. It will always be for the jury or other tribunal of fact to determine whether what was said was meant as a threat or other form of improper pressure. Marginal cases may arise and are best left to the tribunal of fact, as the judgment of Stephenson LJ [in Kellett] suggests."

Section 117 of the Crimes Act 1961 (NZ) provided, relevantly, that everyone is liable to imprisonment for a term not exceeding 7 years who "wilfully attempts in any ... way to obstruct, prevent, pervert or defeat the course of justice".

145 A person does not attempt to pervert the course of justice if the person merely approaches a witness who the person believes intends to make a false statement (either deliberately or inadvertently) in pending criminal proceedings, and, by reasoned argument or advice, endeavours to dissuade the witness from giving perjured or erroneous evidence. This conduct will not, of itself, have a tendency to pervert the course of justice.

146 A person will, however, attempt to pervert the course of justice if the person:

(a) approaches a witness in pending criminal proceedings and, by improper conduct, attempts to persuade the witness to withdraw or modify his or her proposed evidence; and

(b) intends to pervert the course of justice.

The categories of improper conduct include the provision of a bribe or the making of a threat. The approach to the witness, in the circumstances I have described, will have a tendency to pervert the course of justice in that there is a risk that the witness will be induced involuntarily to withdraw or modify his or her proposed evidence. If a witness in fact withdraws or modifies his or her proposed evidence as a result of a bribe, a threat or other improper conduct, there is a risk that there will be a miscarriage of justice. The court will administer justice in the particular case on the basis of evidence which has been involuntarily withdrawn or altered, and the course of justice will, in consequence, be perverted. If a person, by improper conduct, attempts, with the requisite intention, to persuade a witness to withdraw or modify his or her proposed evidence, it is no justification or excuse that the person honestly (or honestly and reasonably) believes the proposed evidence is false (either deliberately or inadvertently), and is motivated by a desire to prevent perjury or injustice.

147 The critical issues at trial were whether the appellant:

(a) used threatening behaviour, as alleged by the respondent, which had a tendency to pervert the course of justice upon his prosecution on the charge of unlawful and indecent assault; and

(b) if so, whether he intended to pervert the course of justice.

148 The first element of the charge in the indictment required the jury to consider whether they were satisfied beyond reasonable doubt that the appellant had engaged in threatening behaviour, as alleged by the respondent, which had a tendency to induce Mrs L Whittle to withdraw or alter her statement. The second element of the charge required the jury to consider whether they were satisfied beyond reasonable doubt that the appellant intended, by any threatening behaviour as alleged, to procure the withdrawal or alteration of the statement.

149 If the jury was not satisfied beyond reasonable doubt that:

(a) the appellant had engaged in threatening behaviour, as alleged by the respondent;

(b) any such behaviour had the requisite tendency; or

(c) any such behaviour was engaged in with the requisite intention,

they were obliged to return a verdict of not guilty.

(a) the truth or falsity of Mrs L Whittle's statement to the police; and

(b) the appellant's guilt or innocence of the charge of unlawful and indecent assault,

were irrelevant to the charge in the indictment. Her Honour also ruled that the oral evidence sought to be adduced by the appellant, and the documents sought to be tendered by him, which are referred to in the grounds of the appeal against conviction and in the reasons of Roberts-Smith JA, were not admissible.

151 In my opinion, it was irrelevant to the charge in the indictment whether the appellant was innocent or guilty of the alleged assault. It was also irrelevant to the charge in the indictment whether the appellant had an honest or honest and reasonable belief that Mrs L Whittle's statement was false. Further, it was irrelevant to the charge in the indictment that any threats made by the appellant were merely to do what he might lawfully do, if those threats had a tendency to induce Mrs L Whittle to withdraw or modify her statement, and the appellant intended, by the threats, to achieve that result. Although, as Brennan, Toohey and McHugh JJ noted in Meissner at 142 - 143, conduct will not have a tendency to pervert the course of justice if it involves no more than a threat to do what might lawfully be done in order to secure a "legitimate end", it is not a legitimate end to attempt to persuade a witness, by threats or intimidation, to withdraw or modify his or her evidence.

152 The learned Judge's rulings were correct. The proposed oral evidence and the documents sought to be tendered were not relevant to any element of the charge in the indictment or to the existence or non-existence of any fact in issue.

153 On 31 May 2003, the appellant visited Mr Noel Whittle (Mrs L Whittle's son) and Mr Noel Whittle's wife at their home in Bunbury. Mr Noel Whittle's evidence was the appellant had said, relevantly and in effect, that:

(a) Mrs L Whittle had made a false witness statement in a court case in which he was the defendant;

(b) Mrs L Whittle had been pressured into making a false statement by the complainant's mother;

(c) it was a serious matter to give a false statement and a person could go to gaol for 5 to 7 years for doing so;

(d) at the end of the court case he would take all the witnesses to court and would put caveats on their property;

(e) he did not want Mrs L Whittle to get hurt or get into trouble and was trying to help her; and

(f) he wanted Mr Noel Whittle to procure Mrs L Whittle to withdraw her statement.

(a) he did not engage in any threatening behaviour;

(b) he told Mr Noel Whittle and his wife that the penalty for perjury was 5 to 7 years in jail;

(c) he did not request Mr Noel Whittle or his wife to procure Mrs L Whittle to withdraw or alter her statement; and

(d) he merely told Mr Noel Whittle and his wife that Mrs L Whittle's statement was untrue and he wanted her to tell the truth.

155 The appellant admitted, in cross-examination, that during his meeting with Mr Noel Whittle and his wife he (the appellant) "made a mention or suggestion of caveats". He reiterated, however, that he did not request Mr Noel Whittle or his wife to procure Mrs L Whittle to withdraw her statement, and insisted that that was not the purpose of his visit.

156 The learned Judge, in her summing up, put to the jury the substance of the appellant's assertion that he did not engage in any threatening behaviour, and did not request Mr Noel Whittle or his wife to procure the withdrawal or alteration of Mrs L Whittle's statement. Her Honour's summing up was, relevantly, in these terms:

"... Now let's look at the charge itself. There are two elements. First, you must be satisfied that the accused engaged in some conduct that had a tendency to pervert the course of justice.

Two important things to bear in mind. First of all, this is an objective test. It doesn't matter what he was intending to do when you're looking at this first question. Did he engage in conduct that had a tendency to pervert the course of justice? You don't have to concern yourselves with the result of what he did. Obviously, in this case the course of justice is still on foot. He hasn't gone to trial yet.

The question is did he in the way he spoke to or with Mr and Mrs Whittle in Bunbury on 31 May 2003, looking at objectively what he said and what he did, did his conduct on that occasion have a tendency to pervert the course of justice on his trial? It would do that if it had a tendency to put a witness off from giving evidence against him. It doesn't matter whether the course of justice was perverted or not. It's your objective judgment of his conduct with the Whittles in Bunbury. Did it have a tendency to pervert the course of justice on his trial?

The state case is simply that what he did and what he said to the Whittles in Bunbury amounted to threatening behaviour toward Mr Whittle's mother Merle. It included threats to place a caveat on her house, that she was going to gaol for giving false evidence, that after his trial he was going to sue her, so the state says that was threatening behaviour toward the Whittle's [sic] mother, although the threatening behaviour was towards the Whittles themselves.

The accused, as I understand the evidence, admitted saying most of those things, but his case is that his visit to the Whittles was cordial. He told you there were no raised voices. You would stand back from this, ladies and gentlemen, and you would probably realise that it doesn't matter whether you raise your voice or smile and say to a person quite calmly, 'You might regret giving evidence,' either way count [sic] amount to a threat, but his defence is there were no raised voices. It was cordial.

What you have to concern yourselves with her[e] is just objectively looking at that half hour that the Whittles described, how it began, how it ended, what was said during it, the document they saw, their evidence about that, as you recall it, and you consider all the evidence. You cannot convict the accused of this offence unless you're satisfied that objectively - objectively looking at his conduct - he engaged in conduct that had a tendency to pervert the course of justice by threatening behaviour towards the witness Merle Whittle.

If you're left with any reasonable doubt about that, you would have to acquit him and bring in a verdict of not guilty. The second element of this charge, ladies and gentlemen, is the accused's intention. If you're satisfied that objectively, looking at what he did, it had a tendency to pervert the course of justice by being threatening behaviour in relation to Mrs Whittle, then you have to step back and say, 'Did he intend by his conduct to pervert the course of justice?' that is to stop her from giving evidence against him.

A person's intention is not something that can usually be proved by direct evidence. In this case, ladies and gentlemen, it's somewhat unusual in that because both Mr and Mrs Whittle gave evidence that toward the end of his visit to them in Bunbury, according to them the accused admitted what his intention was in visiting them. It's a matter whether you accept their evidence about that. You remember possibly Mr Whittle's evidence was that he reached the point where he tried to wrap up the situation and his evidence was that he said to the accused words to the effect, 'What you want is for me to talk to my mother, to get her to withdraw her statement.'

According to Mr Whittle, and it's a matter whether you believe him, whether you're satisfied that he's a truthful witness. That's a matter for you. According to Mr Whittle, the accused said yes, a definite yes and at that point seemed visibly relieved. Mr Whittle confirmed that recollection under cross-examination when he told Mr Armstrong in cross-examination that the accused said he wanted Mr Whittle's mother to withdraw her statement.

Mrs Whittle also gave evidence to a similar effect that her husband - what she said - cut to the chase a certain point and asked the accused the purpose of his visit and her evidence was that the accused confirmed that he was asking Mr Whittle to get Merle to withdraw her police statement because it was false. Ladies and gentlemen, you will have to consider that evidence. You may find, and it's a matter entirely for you, that if he said that at the time, that that actually was direct evidence of his intention at the time, if he made those admissions, and that's a matter whether you accept the Whittle's [sic] evidence about that.

...

The accused denies that he ever in his conversation with Mr and Mrs Whittle - that he ever said anything to them and confirmed that he intended that they talk to his mother and get her to withdraw her statement. He denied that that topic was ever raised. He denied that there was ever any conversation about her withdrawing her statement. The accused told you that he went to the Whittle's [sic] house in Bunbury because he wanted Mrs Merle Whittle to tell the truth and that's his reason and it was never to get her to withdraw her statement.

Ladies and gentlemen, this is an area that is his intention at the time where you can't find his intention unless you accept the Whittle's [sic] evidence necessarily by direct evidence. This is a situation where you can draw an inference, where you can consider all the circumstances, all the documents, all the evidence of the Whittles and of the accused and what evidence you accept and are willing to rely on and you can ask, 'Is the only reasonable inference,' given the facts you find and it's a matter of what facts you find established, 'that he must have intended to pervert the course of justice on his trial.['] That is, he must have intended when he went to Bunbury to prevent - to interfere with Mrs Whittle coming to give evidence against him, to stop her doing that.

You consider all of the evidence. You cannot convict the accused of this charge unless you're satisfied that when he spoke with the Whittles in Bunbury, he intended to pervert the course of justice on his trial on the assault charge, the indecent assault charge, by preventing the witness Merle Whittle from giving evidence against him. If you're left in any reasonable doubt about that, you would have to acquit him and to bring in a verdict of not guilty.

Just to remind you of the two elements. The first, look at everything that went on in Bunbury. Did he engage in conduct objectively looking at it that had a tendency to pervert the course of justice, a tendency to put Mrs Whittle off giving evidence? Then the second, did he intend at the time to do that? Was his intention to pervert the course of justice so that she would be put in fear by the threats he put so that she wouldn't give evidence against him?

Those are the two things you must be satisfied of before you could convict him. ..."

The references to "Merle" and "Merle Whittle" were to Mrs L Whittle. The grounds of the appeal against conviction do not challenge her Honour's summing up. In any event, the summing up, considered as a whole, does not reveal any material error. It explained adequately the elements of the charge in the indictment, in the context of those prosecution and defence contentions which were open at law and on the evidence.

157 The learned Judge did not fail to permit the appellant to put to the jury any defence properly open to him.

158 The grounds of the appeal against conviction are without merit.

159 The grounds of the appeal against sentence are these:

"1. The sentence imposed by the Trial Judge was, having regard to the following matters, manifestly excessive.

1. The Trial Judge failed to give adequate or proper consideration to the imposition of a non-custodial sentence or to suspend the sentence of 15 months imprisonment having regard to the matters following.
2. The Learned Sentencing Judge failed to give any or any sufficient weight to:-

(a) matters personal to the Appellant including his age, antecedents and lack of record;

(b) the background of the offence including the Appellant's relationship with [N], the laying and subsequent discontinuance of a charge against the Appellant by [N] of sexual penetration without consent and the strength of the Appellant's defence to the charge of unlawful and indecent assault on [N].

1. The Trial Judge erred in not sentencing the Appellant on the circumstances of the offence most favourable to him."

160 The task of this Court, in examining the grounds of appeal, is to determine whether there was an error made in sentencing the appellant, error being understood in this context, as it was explained in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, per Gleeson CJ and Hayne J at 324 - 325, [3], [4]. An appellate court may intervene in a sentencing appeal if a material error of fact or law is apparent in the primary Judge's reasons. Also, an appellate court may intervene if error may be inferred on the ground that the result is unreasonable or unjust; that is, the sentence imposed is manifestly excessive or manifestly inadequate. An appellate court may not, however, substitute its own opinion for that of the primary Judge merely because the appellate court would have exercised the sentencing discretion in a manner different from the primary Judge. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672 [15].

161 The High Court has emphasised that there is no single correct sentence, and that primary Judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime. See Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 at 1055 [27].

162 The learned Judge said, in the course of her sentencing remarks, at AB 162 - 163:

" ... I have carefully reviewed the High Court decision in Dinsdale (2000) 2002 CLR at page 321 and I have looked at the more recent decisions explaining Dinsdale in Western Australia's appellate courts which explains to judges how they are to approach the question of suspended imprisonment.

In this case I consider that this attempt to pervert the course of justice is far too serious to impose a suspended term of imprisonment. I accept that it is only exceptionally that imprisonment is not imposed for attempts to interfere with the course of justice and I refer to the decision in McLachlan (1999) WASCA 255 and the judgment of Murray J at paragraph 13. After considering again every factor in mitigation, I am satisfied that this offence is far too serious for a period of suspended imprisonment to be imposed.

I have gone further and considered the defence plea that this is so exceptional that there should be general mercy shown to this offender. Unfortunately, in a case such as this of a deliberate and knowing attempt to interfere with a state witness, I consider that both personal and general deterrence must be the dominant sentencing considerations, that in this case it is inappropriate to consider suspending a term of imprisonment."

163 By s 6(4) of the Sentencing Act 1995 (WA):

"A court must not impose a sentence of imprisonment on an offender unless it decides that -

(a) the seriousness of the offence is such that only imprisonment can be justified; or

(b) the protection of the community requires it."

164 Section 76(1) of the Sentencing Act provides:

"A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months."

By s 76(2), suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.

165 In Dinsdale at 348 [85], Kirby J made the following observations in relation to s 76(1) and (2) of the Sentencing Act:

"Moreover, the scheme of the legislation, and the two steps which s 76(1) and (2) of the Act requires, suggest, as a matter of construction, that the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term (Thomas, Principles of Sentencing, 2nd ed (1979), pp 244 - 245; R v P [1992] FCA 626; (1992) 39 FCR 276 at 285). This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender. It would be surprising if the legislation were to warrant, at the second step, concentration of attention only on matters relevant to the offender, such as issues of the offender's rehabilitation and the court's mercy (cf R v Shueard (1972) 4 SASR 36 at 43; R v Prindable (1979) 23 ALR 665 at 669; R v Davey [1980] FCA 134; (1980) 2 A Crim R 254 at 259 - 260). On the contrary, the structure and language of s 76(2) of the Act support the view that what is required by a proposal that a term of imprisonment should be suspended is reconsideration of 'all the circumstances'. This necessitates the attribution of 'double weight' to all of the factors relevant both to the offence and to the offender - whether aggravating or mitigating - which may influence the decision whether to suspend the term of imprisonment (R v Liddington (1997) 18 WAR 394 at 402, per Ipp J)."

166 The factors to be considered when considering whether or not to suspend a sentence of imprisonment were referred to by Steytler J (as his Honour then was) in R v Liddington (1997) 18 WAR 394. His Honour said, at 406:

"Amongst the factors which should be considered, in addition to the prospect of rehabilitation taken together with the personal deterrence provided by the threat of activation of the suspended sentence, are the perceived seriousness and intrinsic character of the particular offence (see Wood v Samuels (1974) 8 SASR 465; R v Kruger (1977) 17 SASR 214 at 221; R v Causby (at 62-67); R v Kirk (1984) 6 Crim App R (S) 231; GP, per Malcolm CJ (at 220), Murray J (at 234) and Steytler J (at 243), whether there is any element of persistence (see Wood v Samuels (at 468); R v Kruger (at 221)); general deterrence (Causby (at 62); factors personal to the offender including mitigating circumstances which, while no doubt already taken into account in arriving at the decision to impose imprisonment of a particular term, may have to be considered again as regards the question whether or not to suspend the period of imprisonment so arrived at (see R v P [1992] FCA 626; (1992) 39 FCR 276 at 285; R v Locke (1973) 6 SASR 298 at 302; Jarrett v The Queen (1992) 58 SASR 457 at 459; Scott v SA Police [1993] SASC 4038; (1994) 61 SASR 589 at 592; cf R v Percy (at 72-73); the need to demonstrate the condemnation of the community for offences of that kind (Causby (at 62); GP, per Malcolm CJ (at 220); and reasons militating in favour of an exercise of mercy (R v Osenkowski (1982) 30 SASR 212 at 212-213; R v P (at 285); GP, per Murray J at 234).

That list is, of course, not exhaustive. There can, in the very nature of the exercise which must be undertaken, be no comprehensive list of specific criteria (cf Wood v Samuels (at 468)) and the factors to be taken into account, and their relative importance in any given case, will necessarily vary with the differing circumstances of each case."

167 In my opinion, the learned Judge's sentencing remarks indicate that her Honour, first, considered whether a term of imprisonment should be imposed, and, having decided to impose a term of imprisonment, then considered whether the term should be suspended. Her Honour, in determining whether to suspend, appears to have revisited the considerations that were relevant to the imposition of the term of imprisonment. She gave adequate consideration to the circumstances of the offence, and matters personal to the appellant.

168 The learned Judge recognised that offences against the administration of justice are ordinarily punished by a term of immediate imprisonment. See McLachlan v The Queen [1999] WASCA 255, per Murray J at [13], with whom Kennedy and Wallwork JJ agreed. Her Honour (correctly) characterised the appellant's offence as an extremely serious attempt to pervert the course of justice. There were aggravating features in that the offence involved an attempt to interfere with a witness in pending criminal proceedings, and there was planning and premeditation.

" ... The offender is a 65-year-old man, a taxi driver here in Geraldton. He is a married man with two adult sons. He attended St Patrick's school and left at the age of 13 and went into market gardening. He then was a truck driver for four years, but he ceased when Vietnamese set up gardens in and around Geraldton and there was a surplus of tomatoes. After that, he went mining in Kalgoorlie and returned to Geraldton in 1999 and worked as a supervisor at Activ Industries.

He resigned that position in 2001. For some time he was on sickness benefits, then he became a taxi driver, driving 50 hours per week. His wife works as a shop assistant at Woolworths and I understand still supports him, although they have had some difficulties. He is one of five siblings and his family, I understand, is here to support him today.

The young woman the subject of the charge of indecent assault was a person who worked at Activ Industries. In mitigation, the defence has put to me a series of matters concerning the charging of the offender with indecent assault and another charge of sexual penetration of the same young woman, which was a charge in the District Court which the state, as I understand it, discontinued in July of 2005.

I'm told that charge was discontinued because the complainant gave a further statement and the state decided it could not maintain that prosecution. The charge of indecent assault, however, remains in the Magistrates Court and has not yet been dealt with. The defence has put to me a number of matters about this young woman, about the relationship he had with her, the consensual relationship he had with her, about her change in her statement, about problems of inappropriate behaviour by her stepfather.

Unfortunately, although I listened to those and considered them, there is nothing in all of that that really has a mitigatory effect when I look at the question of dealing with him for this very serious charge of attempting to pervert the course of justice. The fact that a person either believes or knows that he is not guilty of a charge does not entitle him to do whatever he wants to get rid of the charge. He is not at large and able to interfere with a state witness. That is not something that an accused person can do.

...

... I have carefully considered the position the accused man found himself in. I accept that he believed he had been wrongly charged. I accept he believed he was an innocent man.

...

... I do accept that he felt himself under considerable pressure. He had been required to appear in court on 12 to 15 occasions. He believed himself to have been wrongly charged. I take account in mitigation that he is a 65-year-old man who has never before been in trouble with the law. He has worked all his life. He has until now led a law-abiding life.

..."

171 It is apparent that the learned Judge took into account the appellant's age (65 years), the absence of any prior criminal history and the circumstances of the offence, including that the appellant felt himself to be under considerable pressure.

172 The learned Judge was of the opinion that the nature of the relationship between the appellant and N had little mitigatory effect. Her Honour was also of the view that the appellant was not remorseful and that he had engaged in a deliberate and knowing attempt to interfere with a witness in pending criminal proceedings.

173 The views and conclusions expressed by the learned Judge were reasonably open to her. Her Honour gave appropriate weight to matters personal to the appellant and the background to the commission of the offence.

175 The appellant submitted in par 3 of his written submissions:

"The circumstances of the events most favourable to the Appellant was that he attended the home of Mr and Mrs Whittle for the purpose of persuading LOURNA MERLE WHITTLE to withdraw a false statement and speak the truth."

176 The so-called facts set out in that submission are inconsistent with the jury's finding of guilt. The learned Judge sentenced the appellant on facts which were consistent with the verdict.

178 I consider that the sentence imposed by the learned Judge was within the appropriate sentencing range. It was not manifestly excessive, having regard to the matters alleged in grounds 2, 3 and 4. See Chan (1989) 38 A Crim R 337 at 342, in relation to determining whether a sentence is manifestly excessive.

179 I would dismiss both the appeal against conviction and the appeal against sentence.