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[2005] VSCA 85
Court of Appeal (Vic)
2005-05-03
CALLAWAY, BUCHANAN and EAMES, JJ.A.
Original judgment source is linked above.
Criminal law - Attempting to pervert the course of justice - Controlled police operation - Whether acts allegedly done by applicant and co-offender had a tendency to pervert the course of public justice - Only an abstract or theoretical tendency required - Application dismissed.
1 This judgment is intended to be read in conjunction with my judgment in Director of Public Prosecutions v. Aydin and Kirsch[1]. The applicant was presented in the County Court, together with Helmut Kirsch, on one count of doing acts tending and intended to pervert the course of public justice. The presentment alleged that at Melbourne on 4th July 2001, with intent to pervert the course of public justice, the applicant and Kirsch did a series of acts which had a tendency to pervert the course of public justice: they made threats to Detective Senior Constable Benjamin Archbold for the purpose of improperly influencing the prosecution of Houssam Zayat, in which Mr Archbold was the informant, by inducing him not to oppose the granting of bail to Zayat and to reduce the number of charges against him, contrary to Mr Archbold's duty.
2 The applicant and Kirsch were tried separately. Each of them was convicted. No previous convictions or findings of guilt were alleged against Aydin, but he had later been charged, together with Darrin James Flett, with conspiracy to do acts tending and intended to pervert the course of public justice.[2] At the time he was sentenced for the present offence, he had been found guilty of the conspiracy with Flett and was awaiting sentence. Kirsch had an extensive criminal history. After hearing separate pleas on their behalf, Judge Strong sentenced the applicant to 12 months' imprisonment with a non-parole period of six months. His Honour sentenced Kirsch to 15 months' imprisonment, of which all but the 274 days already served was suspended for an operational period of two years. This judgment is concerned solely with Aydin's application for leave to appeal against conviction. [3]
3 There are four grounds of appeal in the full statement of grounds filed pursuant to Rule 2.09 of the Supreme Court (Criminal Procedure) Rules 1998:
"1. Upon the facts relied upon by the Crown, the applicant could not, as a matter of law, have been convicted of the offence charged.
2. The Crown failed to prove beyond reasonable doubt an essential element of the offence charged, namely, that there was a real prospect that at the time of the alleged offence the course of justice would be interfered with.
3. The judge's directions upon the temporal aspect of the facts of the case (at p.471) as to when on 4 July 2001 the offence might have occurred were confusing and likely to lead to an unsafe verdict.
4. The judge failed to accord procedural fairness to the applicant when in answer to a question asked by the jury (at p.481) which appeared to concern the element of the offence referred to in paragraph 2 above, he failed to inform counsel for the applicant of the full terms of the question thereby denying the applicant the right to properly put his case."[4]
4 The facts are set out in my judgment in Director of Public Prosecutions v. Aydin and Kirsch[5] but, before turning to counsel's submissions, I shall say something about the form of the count on the presentment.
5 At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence.[6] They are listed separately, as substantive offences, in s.320 of the Crimes Act 1958. The maximum custodial penalty in both cases is 25 years' imprisonment. Attempting to pervert the course of justice is not an attempt of the statutory kind referred to in s.321M or the common law kind referred to in s.321S. It is for that reason that attempting to pervert the course of justice is customarily charged in the form adopted in this presentment. The statement of offence is "Doing an act [or acts] tending and intended to pervert the course of public justice". The particulars, in addition to place and time, are that the accused "with intent to pervert the course of public justice did an act [or a series of acts] which had a tendency to pervert the course of public justice in that ...".[7] Counsel for the applicant correctly understood his client to have been charged not with perverting the course of justice but with attempting to pervert the course of justice.
6 Mr Tehan argued grounds 1 and 2 together. He submitted that the Crown could not prove that the acts allegedly done had a tendency to pervert the course of public justice, because, on 4th July 2001, it was a controlled operation. I agree with Mrs Quin that that submission misapprehends the nature of the offence. Even if it was a controlled operation and Mr Archbold would not in fact be induced not to oppose the granting of bail to Zayat or to reduce the number of charges against him, it was sufficient that the acts charged had a tendency to pervert the course of public justice. That does not mean a practical tendency in the circumstances of the particular case. Otherwise a person could not be convicted of attempting to pervert the course of justice if he or she attempted to corrupt an incorruptible judicial officer.[8] Both Mr Tehan and Mr Croucher, who advanced a similar submission in Kirsch's application (which was abandoned), accepted that that was one of its consequences. They pointed out that such a person could still be charged with other offences. Mr Croucher went so far as to say that the person could be charged with an attempt of the kind referred to in s.321M.
7 Unsurprisingly no authority was cited for the proposition that a person must be acquitted of attempting to pervert the course of justice if the object of the attempt will not be influenced. There were two statements that were conceded to be obiter dicta. One, in R. v. Briggs[9], was said to favour the proposition. The other, in R. v. Murphy[10], was conceded to be against it. In my opinion, all that is necessary is a tendency to pervert the course of public justice in an abstract or theoretical sense. Practical impossibility is irrelevant if such a tendency is present. It would not be present if, for example, a person attempted to pervert the course of justice by sticking pins into a wax model of the prosecutor; but it would be present, again by way of example, if the accused wrote an intimidating letter in Portuguese to a judicial officer whom the accused wrongly believed to understand that language.[11]
8 The genesis of ground 3, which Mr Tehan argued next, is a part of the charge in which the judge responded to a similar submission about tendency below. Defence counsel had submitted that this was a controlled operation and that, once it assumed that character, there was no risk that the course of justice would be perverted. His Honour directed the jury that they could still convict the applicant if they were satisfied that the offence had been committed before Mr Archbold returned to the Magistrates' Court wired with a recording device. With respect, that direction was unduly favourable to the accused. The jury should have been directed that it did not matter whether Mr Archbold was in fact likely to be influenced. Subject to one qualification, ground 3 fails for the same reason as grounds 1 and 2.
9 The qualification is this. As part of the direction to which I have just referred, the judge told the jury that they would be entitled "to look simply at what occurred that morning at the Magistrates' Court", i.e. before Mr Archbold returned with a recording device. Mr Tehan submitted that, up to that point, there was no, or insufficient, evidence that his client had tried improperly to induce Mr Archbold not to oppose the granting of bail. It was conceded that there was evidence relating to reduction of the number of charges. There may be more than one answer to that submission. Mrs Quin argued that there was sufficient evidence relating to bail. The seemingly innocent question, "How are you for bail?" had to be understood in its intimidatory context. I need not decide that point. A more fundamental difficulty with the argument is that the Crown did not have to prove an improper attempt to induce Mr Archbold both with respect to bail and with respect to the number of charges. Either was sufficient and his Honour directed the jury accordingly. They
were reminded, in this part of the charge, that they had to be satisfied of the elements of the offence beyond reasonable doubt.
10 The last ground may be swiftly dispatched. The jury had been directed that there had to be "a real possibility" of Archbold's being influenced. One of the questions they asked, in the course of their deliberations, was of the form "If we find certain facts, would there be a real possibility of Archbold's being influenced?". The judge declined to read the question to counsel on the basis that it disclosed a finding that the jury were minded to make. Mr Tehan argued that his client was thereby denied procedural fairness, because counsel was unable to make submissions about the terms of the question or to seek leave to address the jury again. The short answer is that the point was abandoned by defence counsel at the trial, who accepted that the course taken by the judge was open.[12]
11 For these reasons I would dismiss the application.
12 I would refuse the application for leave to appeal against conviction for the reasons stated by Callaway, J.A.
13 I agree with Callaway, J.A. that the application should be dismissed. I do so for the reasons given by his Honour.
[2] See R. v. Aydin and Flett [2005] VSCA 87.
[3] The applicant's sentence is dealt with in Director of Public Prosecutions v. Aydin and Kirsch. The conclusion in that case is that the sentence was too lenient.
[4] The grounds were amended in formal respects by leave granted at the hearing of the application.
[5] At [5] and [6].
[6] R. v. Rogerson [1992] HCA 25; (1992) 174 C.L.R. 268 at 279.
[7] Heath, Indictable Offences in Victoria (3rd ed. 1992) at 265 and 268-269; Freckleton, Indictable Offences in Victoria (4th ed. 1999) at [28.30]-[28.50] and [28.290].
[8] Compare R. v. Taouk (1992) 65 A.Crim.R. 387 at 390-393.
[9] [2000] VSCA 234 at [16] (the sentence beginning "The only way ...").
[10] (1985) 4 N.S.W.L.R. 42 at 51 (the sentencing beginning "Whether the conduct ...").
[11] My view is similar to that of the five judge Court of Criminal Appeal in R. v. Murphy at the passage cited in fn. 10 above. See also and compare Gillies, The Law of Criminal Conspiracy (2nd ed. 1990), 136-137 and the discussion and recommendation in the Victorian Parliament Law Reform Committee's Administration of Justice Offences (Final Report 2004), 45-55.
[12] It is therefore unnecessary to consider the distinction between a jury question which amounts to asking for directions of law if a hypothetical finding of fact is made and a jury question which asks the judge whether they should make a further finding of fact in that event.
R
Aydin [2005] VSCA 85