R v Deemal

SUPREME COURT OF QUEENSLAND

CITATION: R v Deemal [2009] QCA 131

PARTIES: R v DEEMAL, Adrian William (appellant)

FILE NO/S: CA No 299 of 2008 / DC No 2914 of 2008

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 22 May 2009

DELIVERED AT: Brisbane

HEARING DATE: 6 March 2009

JUDGES: Holmes and Fraser JJA and Daubney J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: Criminal law – particular offences – offences relating to the administration of justice – perjury and false statement – when punishable – proceedings – where appellant convicted of one count of perjury – where appellant gave evidence in a Queensland Crime Commission hearing into the suspected unlawful killing of a young woman – where appellant was the last person known to have seen the woman – where s 123 of the Criminal Code 1899 (Qld) provides “any person who in any judicial proceeding … knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding” commits perjury – whether QCC hearing was a “judicial proceeding” – whether there was a question depending in the proceeding – whether appellant’s evidence was material to a question depending in the proceeding / Crime and Misconduct Act 2001 (Qld), s 206 / Crime Commission Act 1997 (Qld), s 28, s 45, s 100, s 101, s 107, s 120 / Criminal Code 1899 (Qld), s 119, s 123 / Criminal Justice Act 1989 (Qld), s 125(b) / Misconduct Tribunals Act 1997 (Qld), s 43 / Blake v Norris (1990) 20 NSWLR 300, cited / Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12, applied / Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd & Ors (1987) 11 ACLR 584, cited / Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd and Another (2007) 156 FCR 501; [2007] FCA 13, distinguished / Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; [1991] HCA 53, cited / R v Lewis (1914) 10 Tas LR 48, distinguished / Re Sons of Gwalia Ltd; Ex Parte Love (2008) 66 ACSR 253; [2008] WASC 75, distinguished / Rex v Griepe, 91 ER 1067*,* cited / The King v Aylett (1785) 1 TR 63, cited / The Queen v Baker (1895) 1 QB 797, cited / The Queen v Davies (1974) 7 SASR 375, distinguished / The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25, distinguished

COUNSEL: A J Kimmins, with J C Trevino, for the appellant / M J Copley SC for the respondent

SOLICITORS: O'Reilly Stevens Bovey Lawyers for the appellant / Director of Public Prosecutions (Qld) for the respondent

1. HOLMES JA: The appellant appeals against his conviction by a jury of a count of perjury, charged in the indictment as follows:

“That between the thirty-first day of May, 2000 and the twenty-eighth day of June, 2000 at Cairns in the State of Queensland, ADRIAN WILLIAM DEEMAL in a judicial proceeding namely a Queensland Crime Commission Hearing, knowingly gave false testimony to the effect that he drove a red Toyota Lexcen sedan transporting a teenage girl of a similar description to ANGELA MARIE MEALING left into Riverstone Road at Gordonvale shortly before she debussed from the said red Toyota Lexcen sedan in Riverstone Road at Gordonvale between 1.00am and 3.30am on the second day of April, 2000 and the false testimony touched a matter which was material to a question then pending (sic) in the proceeding.”

His grounds of appeal are that the trial judge erred in two rulings: the first, that the Queensland Crime Commission hearing was a judicial proceeding for the purposes of s 123 of the Criminal Code 1899 (Qld); and the second, that there was a question then depending in the proceeding, matters material to which were touched on by the appellant’s false testimony.

The false testimony

2. The evidence that the appellant gave in the Queensland Crime Commission (“QCC”) hearing related to his knowledge of the whereabouts of a young woman, Ms Angela Mealing, in the early hours of 2 April 2000, the day on which her mother reported her disappearance to police. (Something over a month later, Ms Mealing’s body was found near Gordonvale.) On 6 April, the appellant spoke to investigating officers and told them that he had picked Ms Mealing up in his car in Cairns and had dropped her off in Riverstone Road, Gordonvale, having turned left into that road at its intersection with the Bruce Highway. He gave the same account in subsequent police interviews.

3. On 26 May 2000, the QCC received a reference for investigation (under s 46 of the Crime Commission Act 1997 (Qld)) of the following “major crime”¹:

“The suspected unlawful killing of one Angela Marie Mealing in the State of Queensland on or around 2 April 2000.”

Subsequently, the appellant was required by notice under s 95 of the Crime Commission Act to give evidence before the QCC as to:

“[his] knowledge of the events leading up to and circumstances surrounding the suspected unlawful killing of one Angela Marie Mealing at or near Gordonvale on or about 2 April 2000.”

4. At the QCC hearing, the appellant reiterated his account of turning left in his vehicle, with Ms Mealing as a passenger, into Riverstone Road at its intersection with the Bruce Highway. That was the testimony which the Crown alleged at trial was false. The evidence of falsity was from this source: the service station at the intersection in question operated security cameras, one of which captured traffic passing through the intersection. The appellant’s car did not appear on the security tape showing the intersection over the period from about 1.00 am to 6.00 am on the morning of 2 April.

The “no case” submission

5. The appellant went to trial on the count set out in paragraph 1 above. At the close of the Crown case, the appellant’s counsel made a “no case” submission (reprised on appeal) arguing, inter alia, that the QCC hearing was not a “judicial proceeding”, and that there was no “question then depending” in it. As properly understood, “proceeding” described a process in which some form of judicial or quasi-judicial function, involving determination of the rights or status of parties, was performed. The QCC performed no such function; its role was administrative and investigative; it was merely gathering evidence. The Crime Commission Act contained no deeming provision to confer the status of judicial proceedings on QCC hearings. The alleged false testimony was not material to a “question then depending in the proceeding” because there was no such question in the QCC hearing: the reference did not pose any question for the QCC to consider or determine.

6. The learned trial judge, rejecting the argument that the expression “proceeding”, as used in s 119 and s 123 of the Criminal Code, was limited to processes in which a judicial or quasi-judicial function was performed, ruled that the QCC hearing was a “proceeding”. The last movements of Ms Mealing were a material matter in the QCC investigation; the testimony of the appellant, therefore, touched on matters material to a question depending in the proceeding. The appellant had a case to answer.

The offence of perjury

7. Section 123 of the Criminal Code (headed “Perjury”) provides:

“Any person who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called perjury.”

Section 123 appears in chapter 16 of the Criminal Code, titled “Offences relating to the administration of justice”. It has remained unchanged since the Criminal Code was given operation by the Criminal Code Act 1899. (Indeed, it appeared in the same form in Sir Samuel Griffith’s 1897 Draft Code.²)

8. Section 119 of the Code defines “judicial proceeding” for the purposes of chapter 16 as including:

“any proceeding had or taken in or before any court, tribunal or person, in which evidence may be taken on oath.”

“Proceeding” is defined in s 36 of the Acts Interpretation Act 1954 (Qld), but the definition is of limited assistance:

“In an Act—

proceeding means a legal or other action or proceeding.”

The Crime Commission Act

9. The role of the QCC under the Crime Commission Act (now repealed) was unquestionably investigative, as the appellant contended at trial, and contends again here. As much is clear from the objects of the Act in s 4(1), which spoke in terms of investigation of criminal activity. Section 28 prescribed the QCC’s functions, including:

“(a)to investigate relevant criminal activity or major crime referred to it by the management committee;

(b)when conducting investigations, to gather evidence for—

(i) the prosecution of persons for offences; and

(ii)the recovery of the proceeds of relevant criminal activity or major crime;

...

(f)to liaise with, provide information to, and receive information from, other law enforcement agencies, including agencies outside the State or Australia, about relevant criminal activity and major crime.”

The reference to the QCC in the Mealing case came from the Management Committee, set up under s 39 of the Act; its functions included referral of “relevant criminal activity and major crime to QCC for investigation”.³ Section 32 of the Act enabled the QCC to pass any evidence of an offence against a State or Commonwealth law to a law enforcement agency.

10. Part 7 of the Act governed QCC hearings. Section 100(1) gave the Commission power to hold a hearing for an investigation, to be conducted by one or more commission members as decided by the crime commissioner;⁴ in that case, the member or members were taken, for the purposes of the hearing, to be the QCC.⁵ Counsel for the respondent placed some emphasis on s 101(1), in which the word “proceeding” is used of a QCC hearing:

“101.(1) When conducting a hearing, QCC—

(a) is not bound by the rules of evidence; and

(b)may inform itself of anything in the way it considers appropriate; and

(c)may decide the procedures to be followed for the proceeding.

(2) A person nominated by the presiding member for the purpose may administer an oath or affirmation, or take a statutory declaration, required by the presiding member.”

(Italics added.)

11. Section 102 provided that a QCC hearing was not open to the public, except where, in certain circumstances, approved. The lawyer of the person giving evidence was entitled to be present.⁶ Section 103 dealt with witnesses’ rights to representation and their examination as to relevant matters. Sections 105 and 106 provided for production of documents and things; s 105 created an offence of failure to comply. Section 107 was concerned with the question of compulsion, and included this requirement:

“107.(1) A person attending as a witness at a QCC hearing must not fail to take an oath or make an affirmation when required by the presiding member.

Maximum penalty—85 penalty units or 1 year’s imprisonment.”

Under s 105 and s 107, witnesses could not refuse to produce documents or answer questions on any ground other than legal professional privilege attaching to another person. Section 108 required the presiding member to decide whether a claim of reasonable excuse for a refusal to answer a question or produce documents was justified; such a decision could then be appealed under s 109.

12. Section 110 concerned subsequent admissibility of evidence given and documents produced after a claim of privilege in a QCC hearing. Section 113 conferred the protections and immunities of, respectively, a Supreme Court judge, a witness in the Supreme Court and a barrister appearing in the Supreme Court, on the QCC member conducting the hearing, a person appearing at the hearing and the representative of such a person at the hearing.

13. Sections 114 and 115 dealt with contempt and its punishment. Anything done that would be in contempt of court if the commission member were a judge acting judicially, constituted contempt. In a different part of the Act, s 120 made it an offence for a person to “state anything to QCC or a QCC officer that the person knows is false or misleading in a material particular”⁷ or to “give QCC or a QCC officer a document containing information the person knows is false or misleading in a material particular”.⁸

“Judicial proceeding”

14. As at trial, counsel for the appellant maintained that “proceeding” should be understood as referring to a process in which a judicial or quasi-judicial function was carried out and in which rights or status were determined. It was submitted that, given that it was used in a penal provision, no expansive construction should be given to the term. For that proposition, counsel cited this observation by Gibbs J in Beckwith v The Queen:⁹

“In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... .”

15. Counsel for the appellant placed particular reliance on s 120 of the Crime Commission Act. The Act*,* he submitted, was a code; s 120 was designed to provide an exclusive sanction where a witness gave false or misleading evidence in a hearing. It was significant that the Act neither created an offence of perjury nor deemed a QCC hearing to be a judicial proceeding for the purposes of the Criminal Code. As to the latter, counsel drew a contrast with three other statutes which specifically engaged the operation of chapter 16. The Criminal Justice Act 1989 (Qld) (which set up the Criminal Justice Commission, some of whose functions the QCC later assumed under the Crime Commission Act) specifically declared that “a proceeding of the commission [was] a judicial proceeding referred to in the Criminal Code, chapter 16”.¹⁰ The Misconduct Tribunals Act 1997 (Qld), assented to a matter of weeks before the Crime Commission Act, similarly declared a proceeding of a misconduct tribunal to be a judicial proceeding under chapter 16.¹¹ The Crime and Misconduct Act 2001 (Qld), which set up the Crime and Misconduct Commission, successor to the QCC, both stated that s 123 of the Criminal Code applied to commission hearings, and declared that such a hearing was a judicial proceeding.¹²

16. In making the argument that a QCC hearing could not constitute a “judicial proceeding” under s 123, counsel for the appellant referred to The Queen v Rogerson,¹³ and the view there expressed by the members of the High Court that police investigations did not form part of the course of justice, which rather began with the filing of process marking the commencement of criminal proceedings.¹⁴ Reference was also made to discussions of the nature of judicial power in Highstoke Pty Ltd v Hayes Knight GTO Pty Ltd and Another¹⁵ and Re Sons of Gwalia Ltd; Ex Parte Love,¹⁶ cases involving the issue of summonses for examinations under the 2001 (Cth). But did not concern investigations in which evidence was taken under oath, and and turned on whether the relevant power could constitutionally be conferred on a Chapter III court. None of those cases, it seems to me, assists in determining whether a hearing under the fell within “judicial proceeding”, in the extended and non-exhaustive meaning given that term by s 119 of the .

“capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use ... Any assistance as to its meaning has to be derived from the statutory context and the objects of the legislation in question.”

And, as Young J noted in Corporate Affairs Commission (NSW) v Prime Commodities Pty Ltd & Ors,²² although

“‘proceeding’ usually involves a lis between parties, to be heard before a third party, usually a judge or arbitrator ... this is not necessarily so.”

Young J went on to cite a series of cases including Cheney v Spooner²³ as examples of the latter proposition.

20. Cheney v Spooner concerned a summons issued under s 16 of the Service and Execution of Process Act 1901 (Cth) for an examination of witnesses as to company affairs, to be conducted under the Companies Act 1899 (NSW). Section 16 enabled the issue of summonses in “any civil or criminal trial or proceeding”. It was argued that the Companies Act provisions enabling the examination did not give rise to a “proceeding”, but, rather, the “mere gathering of information which may result in nothing or may result in the subsequent initiation of some proceeding”.²⁴ The High Court rejected that argument, holding that the examination was a “proceeding” for the purposes of s 16; the expression was used broadly there to convey:

“... some method permitted by law for moving a Court or judicial officer to some authorized act, or some act of the Court or judicial officer.”²⁵

21. In my view, the concept of a “proceeding” in s 119 of the Criminal Code is at least as broad. It clearly contemplates that the proceeding need not be curial: it may be had before a person, as opposed to a court or tribunal. And nothing in the language of the s 119 definition warrants limiting it to a function in which the rights or status of parties are determined. Part 7 of the Crime Commission Act, which set up the structure for and of QCC hearings, provided for legal representation, procedure, evidence, punishment for contempt, and immunities: all consistent with the notion of a “proceeding”. If a “proceeding” is properly described as “some method permitted by law for moving [the relevant entity] to some authorized act”, arguably the referral for investigation, and certainly “the act(s)” of the QCC consequent upon the referral (the hearing and the decision whether to refer the evidence gathered to a law enforcement authority), amounted to a “proceeding”. Some mild reinforcement for that view is provided by the use of the term “proceeding” in the Crime Commission Act, both of curial proceedings²⁶ and of a QCC hearing.²⁷

22. The argument that the Crime Commission Act was meant to be a code, so that the inclusion of s 120 (creating the offence of making false or misleading statements) leads to the inference that a perjury offence was not intended to be available, is not compelling. It seems to me more likely that s 120 was included in the Act simply because no provision of the Criminal Code would have made criminal a false unsworn or undeclared statement to the QCC;²⁸ whereas the offence of perjury existed in s 123.

23. I do not think there is any doubt that the form of hearing prescribed by Part 7 of the Crime Commission Act for the purpose of gathering evidence was a “proceeding” in the broad sense in which that term is used in s 119 of the Criminal Code; and its form and content being dictated by statute, it was a “legal” proceeding so as to meet the definition in the Acts Interpretation Act. Consequently, the requirement in s 123 that the impugned testimony be given in a “judicial proceeding” was met in this case. No question of ambiguity arises, so it is unnecessary to consider the presumption referred to in Beckwith, against extending the category of criminal offences.

“Question depending”

24. That lack of ambiguity does not, however, extend to the expression “question depending”, on which the second limb of the appellant’s argument turned. This limb of argument was allied to the first and had in turn two parts. The first and more general contention was that the requirement of a question depending further limited the kind of proceeding to which s 123 applied. Not only must it be a “judicial proceeding”, but it must be one in which there is a question depending in the sense of a question to be determined in the proceeding. Secondly, it was said that the function of the QCC hearing was to gather evidence, not to consider or resolve any issue; so there was simply no question depending.

25. Whether the first part of that argument succeeds turns on whether the term “question depending” refers to a question requiring consideration in the proceedings, or is limited to a question requiring resolution in the proceedings. The appellant referred to statements in R v Lewis²⁹ and The Queen v Davies,³⁰ to the effect that materiality is to be assessed by reference to the decision to be made:

“material facts are those which are capable of affecting directly or indirectly the determination of one or more of the issues in the case.”³¹

and

“A fact ... is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning …”³²

Similarly, in Re Mellifont,³³ the answer given by the Court of Criminal Appeal on an Attorney-General’s reference and approved by the High Court³⁴ was that:

“The relevant question, in relation to materiality, was whether the false evidence pertained or related to a matter ... which was capable of affecting a decision of the [Fitzgerald Inquiry].”

But those statements, in my view, reflect in each case the particular context in which they were made, and do not necessarily answer the question here.

26. The appellant submitted that the word “depending” was a synonym for “pending”. I think that is correct. The words share a common root, and the New Shorter Oxford English Dictionary gives as one of the meanings of the word “depend”:

“Be in suspense; be undetermined; be waiting for settlement; be pending. Chiefly as depending ppl a LME.”

(The abbreviations stand for participial adjective late middle English).

An example of the use of “depending” in that sense can be found in the Perjury Statute of 1563³⁵ which made it, for the first time, a statutory offence to commit perjury or to procure a witness to commit perjury “in any matter or cause whatsoever now depending, or which hereafter shall depend in sute … ”. Other examples are to be found in statute and case law. But it does not advance matters greatly to equate “depending” with “pending”; there is still the question of whether, as used in s 123, it refers to a question pending for examination in the proceeding, or a question pending for determination in the proceeding.

27. The apparent ambiguity in the expression makes it permissible to have regard to the antecedent common law in interpreting it;³⁶ and doing so provides some assistance in understanding its function in s 123. Before 1911, there was no statutory definition of perjury in English law; Sir Samuel Griffith derived his formulation of the offence from the common law. In William Hawkins’ Pleas of the Crown 1716-1721,³⁷ this definition was given:

“Perjury, by the Common Law, seemeth to be a willful false Oath, by one who being lawfully required to depose the Truth in any Proceeding in a Course of Justice, swears absolutely, in a Matter of some Consequence to the Point in question, whether he be believed, or not.”³⁸

Hawkins went on to explain materiality to the “Point in question”:

“That if the Oath for which a Man is indicted of Perjury, be wholly foreign from that Purpose, or all together immaterial, and neither any way pertinent to the Matter in question, nor tending to aggravate or extenuate the Damages, nor likely to induce the Jury to give a readier Credit to the substantial Part of the Evidence, it cannot amount to Perjury, because it is merely idle and insignificant; as if upon a Trial, in which the Question is, whether such a one was Compos or not, a Witness introduces his Evidence by giving a History of a Journey which he took to see the Party, and happens to swear falsely in Relation to some of the Circumstances of the Journey.”³⁹

That analysis seems to be derived from the discussion of Lord Holt CJ in Rex v Griepe;⁴⁰ according to the report contained in the English Reports, he said:

“So if a witness swears to the credit of another witness; if it be false it will be perjury, if it conduces to the proof of the point in issue. But if A. being produced as a witness to prove that B. was compos mentis when he made his will, swears that such a day he left his own house, and went to C. and lay there, and the next day lay at D. &c. if he swears falsely in these circumstances immaterial to the point of the issue, it will not be perjury.”⁴¹

Sir Edward Coke described perjury as:

“a crime committed, when a lawfull oath is ministered by any that hath authority, to any person, in any judiciall proceeding, who sweareth absolutely, and falsely in a matter materiall to the issue, or cause in question, by their own act, or by the subornation of others.”⁴²

28. Lord Mansfield in The King v Aylett⁴³ set out the elements of the offence which must be charged in the indictment:

“In the case of perjury, I take the circumstances requisite to be these; the oath must be taken in a judicial proceeding, before a competent jurisdiction; and it must be material to the question depending.”⁴⁴

Sir William Russell adopted Hawkins’ definition and Lord Mansfield’s identification of the relevant elements in his A Treatise on Crimes and Misdemeanours.⁴⁵

29. Sir Samuel Griffith, it may be seen, couched the offence in s 123 in the language used by Lord Mansfield, while casting its net wider to extend, beyond false testimony “material to the question depending”, to testimony “touching any matter” material to any question depending. The first aspect of that variation reflects a more expansive view of materiality, evident in cases such as The Queen v Baker.⁴⁶ In that case, the defendant, charged with selling beer without a licence, lied about the circumstances in which he had been previously convicted of a similar offence and was subsequently convicted of perjury. Lord Russell of Killowen CJ identified and answered the first point taken on appeal thus:

“The first ground taken is that, as the defendant had admitted his previous conviction, and had not appealed therefrom, it was immaterial to the then pending inquiry whether the previous plea of guilty had been put in by the defendant’s consent or not. The answer to that contention is that the defendant’s answers would affect his credit as a witness, and all false statements, wilfully and corruptly made, as to matters which affect his credit, are material.”⁴⁷

30. All of those formulations: the “Point in question” (Hawkins); the “point in issue” (Lord Holt CJ); the “issue, or cause in question” (Coke); the “pending inquiry” (Lord Russell of Killowen CJ); and the “question depending” as Lord Mansfield (and, in turn, Griffith) phrased it, focus on there being an identifiable question (or, in Griffith’s formulation, identifiable questions). Griffith adopted the notion of a question depending as the touchstone by which materiality is to be determined. But it is not necessary, in order to ascertain materiality by reference to a question, that the question be formally answered as well as asked. The feature for which the appellant argues, that the question be posed for determination, is not essential to establishing materiality. And I do not think there is any warrant in the language of s 123 for regarding the use of the expression “question depending” as intended to place a further restriction on the kind of proceedings to which the section applies.

31. Since, in my view, the ambiguity in “question depending” is resolved when one considers the function of the expression in s 123, no occasion arises for the application of the presumption against extending criminal liability.

32. It remains only to consider whether there was a question depending, in the sense I have described, in the QCC proceedings in this case. The appellant contended that not only was there no question posed for the QCC’s determination, but none was posed for its consideration. I do not think that is so. The QCC had to investigate “The suspected unlawful killing of one Angela Marie Mealing in the State of Queensland on or around 2 April 2000”; implicit in the use of the word “suspected” was the question of whether Ms Mealing had been unlawfully killed. That question raised a number of subordinate questions: whether, if Ms Mealing was killed, by whom, when, where and how she was killed. Whether as a result of its inquiry the QCC handed over evidence to a law enforcement agency depended on the conclusions it came to in respect of those questions, even though those conclusions did not require statement in findings, recommendations or a report. Where the appellant took her and where he left her on the morning of 2 April were matters material to both the principal and the subordinate questions, all of which were depending in the hearing.

33. In my view, the challenged elements of the offence of perjury were made out: the QCC hearing was a judicial proceeding in which there was a question depending. The trial judge’s ruling rejecting the “no case” submission was correctly made. I would dismiss the appeal against conviction.

34. FRASER JA: I have had the advantage of reading the reasons of Holmes JA. I gratefully adopt her Honour’s description of the proceedings at the trial and the issues and arguments in the appeal.

35. The most substantial argument advanced for the appellant, so it seemed to me, was that the expression in s 123 of the 1899 (Qld) “question depending” limits the kinds of proceedings to which the section applies to proceedings in which that “question” falls for determination by the court, tribunal, or person before whom or in which the proceedings are had or taken: the proceedings in which the appellant gave what the jury found to be perjured evidence were not of that character.

“Any person who in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime, which is called perjury.”

37. Part 3 of the Criminal Code collects offences “against the administration of law and justice, against office and against public authority”. Section 123 is found in Chapter 16, which concerns offences “relating to the administration of justice”. Chapter 20 concerns “miscellaneous offences against public authority”, including those created by ss 193 and 194. (Those sections reflected the provisions in clauses 198 and 199 of the Draft Code, with only some minor rearrangement of the words.) When the Code commenced they provided:

“193.Any person who, on any occasion on which a person making a statement touching any matter is required by law to make it on oath or under some sanction which may by law be substituted for an oath, or is required to verify it by solemn declaration or affirmation, makes a statement touching such matter which, in any material particular, is to his knowledge false, and verifies it on oath or under such other sanction or by solemn declaration or affirmation, is guilty of a crime, and is liable to imprisonment with hard labour for seven years.

The offender cannot be arrested without warrant.

194.Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorised by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment with hard labour for three years.”

38. Sections 193 and 194 were later amended but the amendments are not significant for present purposes. The maximum penalty for the perjury offence of which the appellant was found guilty is imprisonment for 14 years (see s 124(1)), as against the maximum terms of imprisonment of seven years and three years respectively provided by ss 193 and 194 (in their original and amended forms). As is suggested by the chapter headings quoted above, a significant difference between the offences created by those provisions and the perjury offence created by s 123 (and that which explains the difference in severity of the penalty) is that the latter requires that the false statement must touch a matter material to a question depending or to be raised in “judicial proceedings”.

39. That division of offences reflects a similar division in the offences that existed before the commencement of the Code. Opposite clause 123 of the Draft Code, Griffith identified those statutory provisions reflected in clause 87 of his 1896 Digest of the Statutory Criminal Law which enacted perjury and various analogous offences. “Perjury” was not defined in any of those statutes, but Griffith described the nature of the proceeding in which perjury might be committed as “a proceeding in a Court of Justice”. Opposite clauses 198 and 199 of the Draft Code Griffith identified those other statutory provisions collected in clause 87 of his Digest which concerned other false statements made on oath or by affidavits or declarations. It was not an element of any of those offences that the false statement must be made in a “judicial” or other “proceeding”.

40. Like s 123, the definition in s 119 of the term “judicial proceeding” used in s 123 has not been amended since the Code was enacted but, unlike s 123, the definition did depart from its precursor in the 1897 Draft Code. The term was defined in the Draft Code as follows:

“In this Chapter the term ‘judicial proceeding’ includes any proceeding had or taken in any court or tribunal or before any justice, or before an arbitrator or arbitrators, or umpire; and includes proceedings taken in order to institute an action, prosecution, or other proceeding.”

41. Although that was an inclusive definition, the stated examples of “judicial proceeding” (which included reference to all of the kinds of proceedings to which the pre-existing statutory perjury offences applied) arguably suggested that the proposed offence might apply only to proceedings which themselves formed part of the administration of justice. If so, the proposed definition in the Draft Code probably would have been narrower in scope than the common law. According to the following description of “judicial proceedings” given in Stephen’s Digest on the Criminal Law in the first (1877) edition (which was maintained in the subsequent editions up to the enactment of the Criminal Code Act 1899) the common law offence applied to proceedings which did not form part of, but merely related to, the administration of justice:

“The expression ‘judicial proceeding’ means a proceeding which takes place in or under the authority of any Court of Justice, or which relates in any way to the administration of justice, or which legally ascertains any right or liability.”

42. The enacted definition of “judicial proceeding” in s 119 of the Criminal Code is in this respect expressed in broader terms again than both the Draft Code and Stephen’s Digest:

“judicial proceeding includes any proceeding had or taken in or before any court, tribunal or person, in which evidence may be taken on oath.”

43. That very wide definition was recommended by the 1899 report of the Royal Commission on the Code of Criminal Law of Queensland. The new definition was plainly designed to apply s 123 to a broader range of proceedings than those described in the examples in the Draft Code. The reasons for the change are not expressed in the report, but it seems clear that a legislative purpose was to ensure that s 123 would catch all of the kinds of proceedings that were caught by the common law offence which, as Stephen’s Digest indicated, included proceedings which related to the administration of justice but were not themselves part of it. The legislative purpose therefore comprehended the application of s 123 to proceedings in which no question falls for determination by the court, tribunal, or person before whom or in which the proceedings are had or taken, even if that feature has the consequence that the proceedings do not themselves form part of the administration of justice.

44. This breadth of the offence is demonstrated by the use in s 119 of the phrase “in which evidence may be taken on oath” as the single criterion for deciding whether a proceeding before a named body or person is a “judicial proceeding” within s 123 and by the substitution in s 119 of the word “person” for the much narrower terms “justice”, “arbitrator(s)” and “umpire” in the Draft Code.

45. On one view there is then a tension between the breadth of the inclusive definition of “judicial proceeding” and the implication in s 123 that it applies only to a proceeding in which there is a “question depending”. The tension arises if the latter phrase is construed as comprehending only a case in which the question both arises and falls for determination in the proceeding, because that would imply a very much narrower scope of proceedings than is contemplated by s 119. As Holmes JA’s reasons demonstrate, however, the expression “question depending” in s 123 is capable of being construed as comprehending a question which arises in but which is not necessarily to be answered by any determination made in the proceedings; and that was so when the Criminal Code Act was enacted in 1899.

46. The text of s 123 is readily capable of reconciliation in that way with the literal meaning of the definition of “judicial proceeding” in s 119: on the ordinary meaning of these provisions, s 123 applies in relation to proceedings described in s 119 in which the false testimony touches a matter that is material to a “question” which arises in but does not fall to be answered in those proceedings. That accords with the division in the Code between offences “relating to the administration of justice” and offences “against public authority” and the rationale for imposing a more severe maximum penalty for the former offences. The legislative purpose derived in part from the extrinsic material mentioned above also tends to confirm that meaning.

Footnotes

1. Criminal activity involving an indictable offence punishable by a term of imprisonment not less than 14 years: Crime Commission Act, s 7. ↩

2. Draft of a Code of Criminal Law prepared for the Government of Queensland by the Honourable Sir Samuel Walker Griffith GCMG. ↩

3. Section 45(1). ↩

4. Appointed under s 14 of the Crime Commission Act. ↩

5. s 100(6). ↩

6. Section 102(5). ↩

7. Section 120(2). ↩

8. Section 120(3). ↩

9. (1976) 135 CLR 569 at 576. ↩

10. Section 125(b). ↩

11. Section 43. ↩

12. Section 206. ↩

13. (1992) 174 CLR 268. ↩

14. Per Mason CJ at 276; per Brennan and Toohey JJ at 283; per Deane J at 293; per McHugh J at 303.