R v Gould [2019] NSWDC 689 | Case summary

R v Gould [2019] NSWDC 689 | Case summary | Zoe

Reasons

The starting point is to identify the elements, so far as they appear to arise from the offence provision. Here, s43 provides as follows: Attempting to pervert justice (1) A person commits an offence if: (a) the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and (b) the judicial power is the judicial power of the Commonwealth. (2) Absolute liability applies to the paragraph (1)(b) element of the offence. (3) For the person to be guilty of an offence against subsection (1), the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact. (4) A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.
The first thing to observe is that the words contended for by the Accused as an essential element of the offence, that is "has a tendency to pervert the course of justice", do not appear in the offence provision.
On its face, the section would suggest that the elements of the offence comprise the following: 1. that the person attempted to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power; 2. that the person intended to obstruct, prevent, pervert or defeat the course of justice in relation to a judicial power; and 3. that the judicial power is the judicial power of the Commonwealth.
I am told that at the first trial of this matter, the Accused's counsel submitted that the elements were as follows: 1. that the Accused did an act; 2. that act had the tendency to pervert the course of justice; and 3. the Accused intended by that act to pervert the course of justice.
In the summing up to the jury, the presiding judge, Judge Norrish QC, stated: The prosecution must prove that the accused: (i) Attempted to pervert the course of justice. To attempt to do something one must intentionally do an act or acts, which is, or are, not merely preparatory towards the commission of a particular objective. A person can commit this offence even if it is impossible to commit the offence or the actual offence was committed. Intention is concerned with the belief of the accused as to the existence of a particular circumstance. A person intends to do something if he or she means to bring about a particular outcome. The purpose of the acts or conduct constituting the offence must be intended to pervert, or deflect the administration of public justice. That is, intended to divert the Federal Court from the proper determination of the issues required to be considered by it and having the tendency to so do. Here it is alleged that the accused intended by his conduct to prevent the Federal Court from having truthful evidence from Mr Borgas … (ii) in relation to a judicial power of the Commonwealth. The relevant conduct must be established to be directed at the determination of issues by a court exercising jurisdiction in relation to matters concerned with the law of the Commonwealth or in the course of proceedings in a federal court.
The submissions on behalf of the Accused in the first trial and the basis for the summing up direction to the jury involved consideration and acceptance of the decision of R v Charles (NSWCCA, unreported 23 March 1998). The decision of Charles was authority for the proposition that the Crown must prove that the alleged conduct had the tendency to pervert the course of justice. It should be noted that the decision of the Court of Criminal Appeal in Charles concerned the interpretation of s319 of the Crimes Act 1900 (NSW).
It must be observed that the offence provision in New South Wales is not in the same terms as s43.
Section 319 provides: A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.
Pervert the course of justice is defined in s312 of the Act as follows: A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.
The interpretation of the New South Wales provisions was recently considered by the Court of Criminal Appeal in Johnston v R [2019] NSWCCA 108. In that matter, Simpson AJA closely scrutinised the authorities relating to this offence and reached a clear finding at [82] that "tendency is not an element of an offence against s 319". Johnson and R A Hulme JJ agreed.
Although the decision related to a different section to that under which the Accused is being prosecuted, it provides very helpful background as to the development of the law in this area. As her Honour made clear, the common law first incorporated the concept of tendency as the result of a statement made by Pollock B in The Queen v Vreones [1891] 1 QB 360. At page 369, Pollock B stated: "The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."
According to the analysis by Simpson AJA, no other member of the Court explicitly agreed with that categorisation of the offence. Ninety years later in the matter of R v Selvage [1982] QB 372 the Court of Appeal said at 384: "The correctness of the sentence: 'the real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice' has never been doubted since it was first uttered."
In Selvage, the Court referred to a number of cases which adopted the definition propounded by Pollock B in 1891.
In a detailed analysis of the common law history of the meaning of offences of this type, her Honour referred to a number of High Court and Court of Criminal Appeal decisions where the question of tendency to pervert the course of justice had been maintained as an element of the offence.
In the course of doing so, her Honour considered the decision of Murphy v The Queen (1985) 158 CLR 596, which followed a conviction under s43 of the Crimes Act (Cth). The High Court, however, did not determine the matter, but rather remitted that and other questions back to the New South Wales Court of Criminal Appeal. As Simpson AJA commented at [45] concerning Murphy: "One of the questions dealt with by this Court concerned what constituted a "tendency" to pervert the course of justice. On this issue the parties took opposing positions. On behalf of the appellant (Murphy) it was contended that "tendency to pervert the course of justice" should be equated with "likelihood". The Crown supported the approach taken by the trial judge, that, for tendency to be established, the conduct in question must create a possibility or risk that the course of justice will be perverted."
As it happened, the Court of Criminal Appeal rejected both contentions and concluded: "We see no reason why in many cases the conduct which forms the second ingredient of the offence should not be put to the jury in the statutory language viz did the accused, having the requisite intention, make an attempt to pervert the course of justice? Where appropriate the jury should also be told that mere preparation is not sufficient; there must be an actual attempt which of necessity goes beyond mere preparation. Whenever further description of attempt is needed, it will suffice to say that conduct will amount to an attempt if it has a tendency to fulfil the guilty intention, that is to say if it is a step directed to or aimed at fulfilling that intention. Whether the conduct has a prospect of producing a perversion of justice is not a necessary element of the offence." (at pp 50G-51B, emphasis added).
I accept the submission for the Crown that this represents the state of the law in New South Wales concerning s43. That is, that tendency to pervert the course of justice is not an essential ingredient of the charge which the Crown needs to prove beyond reasonable doubt. Tendency is, however, a consideration which can be put to the jury in the manner suggested above.
As for the New South Wales provision, the decision of the Court of Criminal Appeal in Johnston makes it plain that tendency is not an element of an offence against s319 (at [82]).
I intend, however, in directing the jury as to elements to refer to tendency in explaining the concept of "attempt" which is a necessary element of the offence under s 43.
It is for these reasons that I have made the ruling set out at paragraph [1] above.

R v Gould

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Judgment (4 paragraphs)

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Legislation Cited (2)

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