R v Kucukakyuz

Principles

1. The principles to be applied to what is a submission of no case to answer were considered in The Queen v XHR [2012] NSWCCA 247. Generally, I have no power to direct a verdict on the basis that a conviction would be unsafe and unsatisfactory - see Doney v R (1990) 171 CLR 207. I must take the Crown case at its highest. A verdict of not guilty can only be directed if there is a defect in the evidence in the Crown case that will not sustain a verdict of guilty.
2. In a case such as this which is based on circumstantial evidence and the drawing of inferences, I must decide the question on the basis of such inferences as are reasonably open and are most favourable to the Crown. It is the jury's role, not mine, to choose between the available inferences, should the matter proceed further.

Count 1

1. The meaning of "pervert the course of justice" is addressed in s 312 of the Crimes Act 1900 where it is found in pt 7. Part 7 is headed "Public justice offences." There: "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."
2. Accordingly, there must be evidence linking the intention to pervert, to a course of justice or the administration of the law. The course of justice relevantly includes proceedings or contemplated proceedings in a court of law.
3. The gravamen of this offence, to pervert the course of justice, is an interference with a due exercise of jurisdiction by the courts, that means deflecting police from invoking that jurisdiction when they have a duty to do so. The prosecution must prove that the accused did the act or acts, and at the time of doing so it was the accused's intention in any way to obstruct, prevent, pervert, or defeat the course of justice. The Crown does not have to establish that the course of justice was actually perverted. The Crown does not have to establish that the particular offence has been committed or that a charge will be laid.
4. In the case of The Queen v Beckett [2015] HCA 38, consideration was given to the statutory provision s 319. This statutory provision made it an offence for a person to do any act or make any omission intending in any way to pervert the course of justice. Specifically in Beckett, it was held that there was no requirement that the accused's act or omission possesses the tendency to pervert the course of justice, although proof that it has or has not such a tendency is not irrelevant, and may well be material proof of intention, which is an essential element. Success or otherwise in perverting the course of justice is irrelevant to criminal liability - see Meissner v The Queen (1995) 184 CLR 132.
5. The provision is not confined to conduct that is engaged in with the intention of perverting existing proceedings - see Beckett paras [36] - [37]. Accordingly, it may be open to consider the conduct engaged in as having the capacity to pervert a course of justice by preventing it. The High Court held that it was correctly submitted that liability for the offence created by s 319 hinges on the intention to pervert the course of justice, and not upon the perversion of a course of justice, and so there is no reason to confine the provision's reach, which is now quite considerable, to conduct which is engaged in with the intention of perverting existing proceedings. Thus, the provision is not confined to conduct that is engaged in with the intention of perverting existing proceedings, but also includes contemplated proceedings.
6. In Einfeld v R (2008) 252 ALR 375, the scope of the offence was considered of significance, and, as a reflection of its position in the part which contains a number of other offences addressing the same subject matter but containing different elements reflective of different defences, the course of justice applies to the administration of the civil and criminal law by courts and tribunals.
7. What is crucial in this offence is that it addresses conduct designed to deflect the police from prosecuting an accused, or from adducing evidence of the true facts. Whilst it is the case that no judicial proceedings need have been commenced at the time the acts said to constitute the offence were undertaken, it must be that an accused contemplated the possibility of the commencement of criminal proceedings.
8. To my mind the offence clearly requires evidence of a course of justice leading to a court, in this case, being seized of the result, or being the endpoint of the course undertaken by investigators. It cannot be that investigation alone is required to make out this offence. If that were the case, Parliament would not have enacted the s 315 offence of hindering investigation, or indeed many of the additional offences that find themselves in that division.
9. In The Queen v Rogerson (1992) 174 CLR 268 was a matter decided in advance of the promulgation of this offence, and which dealt with the now unnecessary requirement that there be a tendency to have the effect of perverting the course of justice. That case dealt with an attempt to pervert the course of justice and the elements of that offence were considered. It was held there that police investigations do not themselves form part of the course of justice, see para [4] in the joint judgement of the Chief Justice Mason and Justice McHugh.
10. At para [5] it was said to be quite important to note that, "the expression "the course of justice" is synonymous with the expression "the administration of justice", and also noted that, "in no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions … and assist in bringing prosecutions."
11. To my mind these are important observations in ensuring I discharge my function at this point in this trial.
12. Now despite some initial tension in appellate authority, it is now settled law, that whilst it was an element of the common law offence of pervert the course of justice that the act or omission in question had a tendency to pervert the course of justice, that is not an element of the offence under s 319. Nonetheless it is an element that there has to be an intention to do so. Accordingly, it must be the case, as urged upon me by King's Counsel, that there be evidence of a course of justice intended to be perverted.
13. In Johnston v R, as I have already noted, the relevant citation is [2019] NSWCCA 108, there it was held that, "Proof of an offence against s 319 does not require proof that the conduct alleged to constitute the offence has a tendency to pervert the course of justice (although proof that it has or has not such a tendency is not irrelevant and may well be material in proof of intention, which is an essential element)"

• see para [74].

1. This is a fraught and evolving area. The challenges, for example, evident in identifying the test for criminality in other areas of public justice offending like misconduct in public office display that - see MacDonald [2019] NSWSC 1785, Meissner v The Queen (1995) 184 CLR 132, Obeid (No 2) [2015] NSWSC 1380, and Johnston [2019] NSWCCA 108, where Simpson AJ concedes her own initial error in Karageorge (1998) 103 A Crim R 15. The following also appears at para [80] when considering, "the distinction (if any exists) between doing an act or making an omission with intent to achieve a particular object (the language of s 319), and attempting to achieve that object (the language of the common law)."
2. I also have regard to the case of Machin [1980] 1 WLR 763, which was referred to in Johnston [2019] NSWCCA 108, and seems also to have been referred to in Rogerson (1992) 174 CLR 268. What's drawn from that case is further assistance in relation to the conduct, as it is noted that, "the law is concerned to forbid unlawful conduct which may result in a miscarriage of justice … The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs (at pp 766-7)."
3. I also have regard to the judgement of Justices Brennan and Toohey in Rogerson (1992) 174 CLR 268, at paras [3] - [4]: "It has been suggested that "the course of justice" and "the administration of justice" include police investigations as such. True it is that some judicial comments are capable of being understood as lending support to that bald proposition (5) See Reg. v. Bailey (1956) NI 15, at p 26; Field (1964) 48 Cr App R 335, at p 340; Reg. v. Kane (1967) NZLR 60, at p 63; Reg. v. Thomas (1979) QB 326, at pp 330-331; and especially Reg. v. Selvage (1982) QB 372, at p 381. These comments have been made for the most part in cases in which a person has been convicted of an attempt to pervert the course of justice by misleading police in their investigation of a crime or suspected crime. But police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings."

Factual context in relation to "course of justice"

1. On the 27th of April 2020 Sgt Howard was on notice that there was a surveillance operation intended to be conducted against him. He was notified as a result of an inadvertent phone call to him by a DS Griffith who had accidentally rung Howard asking for the operational channel referable to the anticipated surveillance of Sgt Howard. Apparently, Griffith had got the wrong Howard, and when Sgt Howard pointed that out to him, he said, "Yeah I've been put on that. Yeah, so I 'm involved in that unfortunately. Yeah" - see page 2 of EX 7B, transcript of intercepted phone call.
2. In that regard the surveillance was pursuant to a surveillance device warrant granted on the 23rd of April 2020, and according to the investigator, Mr Grassick, there was a planned operation to install, in relation to certain aspects of Mr Howard's life, surveillance devices in his motor vehicles and/or his home - transcript page 23, lines 5 - 11.
3. DS Griffith had a role in relation to assisting in that operation, and that was to actually organise radiocommunications for that operation through the radio network - transcript page 23, line 22. The installation was not completed, because of the phone call that was inadvertently made to Mr Howard by Griffith - transcript page 23, lines 31 - 33.
4. In the course of a conversation between Howard and the accused on the 4th of May 2020, which was intercepted and recorded, Sgt Howard told the accused about the Griffith call - on the assumption that instead of ringing Howard Brierley (I infer another police officer), to see if the operation radio channel was set up, he rang Steve Howard instead, and, "spoke about it to me on the phone." Quite understandably the accused laughs and is recorded as saying, "Oh, what a fuck up" - page 9, EX 7C. Thereafter follows discussion about Howard's paranoia, and his response to the police investigative error, including pulling his car apart looking for tracking devices - page 10, EX 7C.
5. There can be no question that there is evidence available as a result of this and other phone calls, that the accused is placating and supporting Mr Howard, and allowing him to vent. Nonetheless there is an available inference arising from this disclosure by Howard to the accused, that she was aware that there was a surveillance operation contemplated in relation to Howard.
6. I bear in mind that she was an experienced serving police officer and was aware that Mr Howard had previously been suspended because of alleged serious misconduct.
7. On the 6th of May, a recorded conversation between Howard and the accused has Howard expressing concern about a "tricked up Land Cruiser like, you know, what STIB use" - page 1, EX 7E. There is then a general conversation about Land Cruisers, as well as "the guy" in the front seat - page 2 of 4, EX 7E. Thereafter the accused says that STIB were in Griffith yesterday, their car, "is like a dark grey, um, Land Cruiser", and the associated person (it is capable of being inferred), was described as, "definitely had hair, and he was grey". The STIB vehicle involved in surveillance tasks is commonly labelled Van100. Again, there is a clear competing inference that EX 7E is yet another conversation where the accused is being responsive to, and concerned about, Howard's wellbeing, and supportive of him as a friend and colleague in the context of his evident paranoia.
8. What is of importance is that the accused was indeed involved in the installation of a surveillance device, but it was in relation to another job i.e., not relating to Mr Howard - it was an arson investigation about which Mr Howard had been aware, as it had been, and was being, investigated by Parkes detectives, where he was, before his suspension, the senior officer in that detectives' office. So, what arises, and is not in dispute, is that the information provided relates to a wholly different investigation.
9. Next, the evidence is that the surveillance investigation of Howard had been altered. There is no direct evidence as to the end date of the Howard surveillance device warrant, and only an inference that it may have supported a further attempt at installing a listening or surveillance device. Nonetheless I accept that there had been an intention to do so, and that a STIB car would likely have been used, should that have been undertaken.
10. I note that there is evidence that Mr Howard was suspended for an allegation of serious misconduct, but the nature of that was never particularised to anybody at the time, and particularly this accused, or indeed, Mr Howard. In this trial it is evident that there was an investigation afoot in relation to an allegation of bribery. That evidence arises from the execution of a search warrant on Mr Howard's solicitors and accountants, which nominated, in the occupiers notice, that offence. There is no evidence that he was ever prosecuted for that offence. For completeness I acknowledge, but specifically put to one side my own knowledge that he ultimately came to be tried for a completely different offence, and was acquitted by an Orange jury at a trial over which I presided. My focus must be, and is, upon the evidence in this trial and this application.
11. The evidence in this trial also includes evidence of the police investigation. As is not uncommon now, it is presented in a form which necessarily acknowledges the sensitivity of the investigative techniques employed by way of covert installation of surveillance devices.
12. In this case there is reference to a covert operative said to be the "grey haired man", and not further described but no evidence confirms that to be the case. Indeed, I'm compelled to make the observation that notwithstanding the agreement that his name would be withheld from the jury, and a number ascribed in evidence, the witness Mr Grassick further described him by affording the witness the designation Senior Sergeant.
13. The point here is that the appropriate exposure in this trial of the police investigation, and its investigative techniques, and the diffidence shown in front of the jury arising from the investigative sensitivities, should not obscure the fact that it does not elevate the evidence to a point where it is thought that it enhances its weight.
14. As I have already set out, the evidence here establishes that an investigative technique was in fact rendered useless, not by anything that the accused did, but by an error made by another investigator. The evidence establishes, if the jury accepts it, that it was Mr Griffith's act of mistakenly ringing Howard which thwarted the investigators ambitions for a surveillance device.
15. The evidence also establishes the relevant van, indeed a van nominated generically as "Van 100", was specifically tasked as the command vehicle for a covert surveillance device installation in relation to an unrelated investigation. There is no evidence at all as to its use in any other regard.

Judgment

1. What is germane to this application is the capacity of the evidence to truly go beyond investigative matters in the manner contemplated by the notion and definition of pervert the course of justice, but more particularly with regard to the requirement that there be in truth a 'course of justice', rather than mere investigation. This is a matter upon which my mind has vacillated. A decision is required so this trial can proceed.
2. I'm absolutely comfortable that there is sufficient evidence in this trial, noting that it is inferential as well as direct, that there was a police investigation, and that there is sufficient evidence to go before the jury in relation to the offence of hinder. In my view, there is a clear capacity on the evidence adduced to impede, by notification to Howard of a STIB vehicle description, although less comfortably a generic individual description, although that may in combination strengthen the potential of the disclosure to impede, or delay the performance of the investigator's duty.
3. It is clearly a matter for the jury as to whether they find that that duty was made thereby, "substantially more difficult to perform." Again, this is not a situation where I conclude that taking the Crown case at its highest, there is insufficient evidence upon which the accused may be convicted, or more properly, I conclude that there is sufficient evidence upon which the accused may be convicted - see May v O'Sullivan (1955) 92 CLR 654.There is no question that there is evidence that the investigation may have - and it's a matter for the jury - been delayed, impeded, obstructed, indeed even prevented, to the extent that the performance of the investigator's duty may - again this is a matter for the jury - had been made more substantially difficult to perform.
4. What is urged upon me is that there is evidence from which the jury could infer that this act or acts, of disclosing incompletely an investigating vehicle, and the banal description of a "grey haired man", ascribes an intention to impair a judicial authority or court. In another way, that there is evidence albeit an inference, that is capable of being drawn which establishes that a judicial authority, or that a court's capacity to do justice is impaired and that the evidence establishes a rational inference not mere speculation, that the conduct comprehends 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 so impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions - see Rogerson (1992) 174 CLR 268.
5. The evidence is that there was to be no covert surveillance device to be installed as a result of the investigator's error so compellingly described by the accused. As said above, that is the evidence. Any inference must be a rational inference in the circumstances. In a criminal trial the jury are not entitled to speculate, and in my view the re-engagement of Van100 in a covert listening device installation is not an available inference on the evidence. It is mere speculation. In any event, the evidence discloses that other aspects of the investigation were apparently continuing, for example, the phones were still tapped. There is no evidence of any other investigative aspect.
6. To invite a jury to consider that there is evidence capable of establishing a perversion of the course of justice as properly defined and understood in this case cannot be a proper reflection of the actual evidence and the offence under consideration. There is no evidence in this trial capable of establishing any interference by means of deflecting police from invoking that jurisdiction, the jurisdiction of the courts. Of course, it is the law that no judicial proceedings need have been commenced at the time of the impugned conduct - see Beckett [2015] HCA 38 at para [4]. Nonetheless that should not obscure the requirement that perverting the course of justice contemplates a course which typically leads to that point and beyond.
7. Impeding an investigation and impeding the course of justice are two different concepts. Parliament has evidently dealt with those two notions in two different offences, both of which have been charged here but in the alternative. There is sufficient evidence to go before the jury in relation to the former, there is no evidence capable of going before the jury in relation to the latter.
8. Accordingly, I propose to direct a verdict in relation to Count 1 and that Count 2 is to go to the jury.

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