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.