R v Rogerson

R v Rogerson - [1992] HCA 25 - HCA 1985 case summary — Zoe

[17]

It was not suggested in argument, nor could it be suggested, that it was necessary for the Crown to prove as an element of the offence charged that the respondents had committed a specific crime, that crime being the subject of a possible prosecution. Indeed, counsel for the respondents did not in terms contend that it was necessary for the Crown to lead evidence, as the Court of Criminal Appeal held, that an identifiable crime had been committed or that the investigating officers believed or suspected that such a crime had been committed. However, counsel for the respondent Paltos did argue that evidence was required to show that the investigation being undertaken would "in the ordinary course lead to an identifiable course of justice" and that may amount to much the same thing. For my part, I would reject both the proposition stated by the Court of Criminal Appeal and the variation of it suggested by counsel. The necessity of proving that an act has a tendency to pervert the course of justice by frustrating or deflecting a possible criminal prosecution and that the act was intended to have that effect does not require evidence that a prosecution for a particular or identifiable offence was in contemplation either by the accused or by investigating officers. In this respect, in a case such as the present, it is enough that there is evidence that an investigation into the relevant transaction or transactions could lead to a prosecution for some offence. Then, it will be a question of determining whether, in the light of that and any other material evidence, the act or acts done by the accused had a tendency to pervert the course of justice and was or were intended to have that effect. If the proposition formulated by the Court of Criminal Appeal were to prevail, persons admittedly guilty of serious criminal activity in circumstances where the particular offences were not identified could not be convicted of an attempt or conspiracy to pervert the course of justice by misleading police investigators or by taking other action having the effect and with the intention of frustrating a prosecution.

[24]

Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case [18] . The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, 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 impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice [19] . An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice. Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned. To define the intent required in a case of a conspiracy to pervert the course of justice, the law of conspiracy must be examined.

[33]

Although it is well established that an attempt to pervert the course of justice can be committed at a time when no curial proceedings of any kind have been instituted [26] , the reasoning which has led to this conclusion in some cases does not accord with the principles above expressed. In some cases, where the scope of the offence of an attempt to pervert the course of justice has been held to extend to misleading the police in the course of their investigations into a crime, police investigations have themselves been treated as a part of the "course of justice" [27] . Though we agree with the result in those cases, we are respectfully unable to accept that reasoning. The course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked. As McHugh J. shows, there is no historical support for an extension of the "course of justice" in the way which commended itself to the English Court of Appeal in Reg. v Selvage [28] where it was said that "a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress " (our emphasis). Neither the police nor other investigative agencies administer justice in any relevant sense. However, it is their function to bring or to assist in bringing prosecutions as part of their duty to enforce the law [29] and, sometimes, to institute proceedings of a disciplinary nature before an appropriate tribunal under an applicable disciplinary code [30] . A tribunal whose jurisdiction extends to the enforcing or adjusting of rights and liabilities in accordance with law and whose procedure is judicial in character is engaged, when exercising that jurisdiction, in administering justice so that the commencement of proceedings invoking that jurisdiction may set in train a relevant course of justice. The offence of perverting or attempting to pervert the course of justice may be committed with respect to such proceedings before a tribunal as well as with respect to proceedings before a court.

[39]

The Crown says that the conspiracy to fabricate the source of the moneys deposited in the National Australia Bank accounts occurred at a time when police investigations were inevitable and that such investigations could lead only to criminal proceedings against Rogerson and/or Nowytarger - that is, criminal proceedings were imminent or threatened. To establish its case the Crown must show that what was done pursuant to the agreement - that is the conspiratorial agreement to pervert the administration of justice - would have that tendency and was so intended by those who are parties to the conspiracy. The Crown says that the acts of Rogerson, Nowytarger and Karp in pursuance of the agreement were intended to foil the police inquiry and clearly had that effect - that is the fabrication of the false agreement, of the receipts and the accounts given to the police by those three persons. And, of course, on the Crown case all of those events occurred after the police inquiry had commenced, if you accept that it commenced on 16 July. And later: Members of the jury, when I was summarizing the Crown case, I said words to this effect, that in the Crown case the conspiracy to fabricate a false account of the moneys deposited in the National Australia Bank account occurred at a time when the police investigations were inevitable and that such investigations could lead to criminal proceedings against either the accused Nowytarger or Rogerson or both. I think it is implicit in what I said to you there , you would have to be satisfied beyond a reasonable doubt that the accused that you were considering believed that a police inquiry would take place in that context at that time. His Honour did not direct the jury that the offence charged could have been committed if the alleged conspirators intended, by fabricating the agreement, to foil a police investigation which could have led to proceedings against Rogerson before the Police Tribunal [32] . The prosecution pitched its case on the level of criminal proceedings and his Honour directed the jury accordingly, that is, he directed them that there must be an agreement to do something which would have a tendency to foil a police inquiry into the circumstances of the deposit in the Bank, and thereby deflect the police from instituting criminal proceedings against Rogerson and, perhaps, Nowytarger. 1. Police Regulation (Allegations of Misconduct) Act 1978 N.S.W., ss. 36, 41.

[41]

At no time in the summing up did the learned trial judge specify or define the nature of the illegality giving rise to the deposit of $110,000. The nearest he got to dealing with it was to say that the Crown suggested that the likely source of the money was the Miss Jones incident. His Honour distinguished the present case where no specific crime was proved to be the source of the $110,000 from a case in which the evidence proved the commission of a crime. In a case of the latter kind, his Honour pointed out, an offender who lied to police investigating his crime in order to protect himself would "at least know the general nature of the proceedings that will be faced if proceedings are to be taken" [34] . Similarly, in such a case, a friend of the offender who lied to the police in order to protect the offender would contemplate proceedings arising from evidence establishing the commission of the offence. After referring to Selvage , his Honour said [34] : it is not sufficient merely to say of the appellants that, by telling lies to the police, they indicate that they have done something unlawful which could, if it were known, result in proceedings brought against them; there must, when attempting to pervert the course of justice is charged, be positive evidence put forward to point to the kind of proceedings, in the sense of the general nature of the charge, which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged with attempting to pervert the course of justice. (Emphasis added.) With respect, proof that an offence has been committed or that a charge of a given nature is to be laid is not - at least in theory - necessary to prove that an agreement to deceive police conducting an investigation is an unlawful conspiracy. However, absence of proof that a particular offence has been committed may make it more difficult to prove that an act which has been done to deceive the police has a tendency to pervert the course of justice by deflecting them from bringing a prosecution for some offence and that the act was intended to have that result. 1. Reg. v Rogerson, Nowytarger & Paltos (1990), 51 A. Crim. R. 359, at p. 365. 2. ibid., at p. 369. 3. ibid., at p. 369.

[42]

In the present case, there was ample evidence that Rogerson, Nowytarger, Paltos and Karp agreed that a contract be produced purporting to evidence a sale to Karp by Rogerson and Nowytarger of a Bentley car and that that contract should be used to provide Rogerson and Nowytarger with an explanation of the source of $60,000 being part of the $110,000 withdrawn from the National Australia Bank by Rogerson and Nowytarger on 1 July 1985. There was evidence on which the jury was entitled to find that the purported sale of the Bentley car was fictitious, as each of Rogerson, Nowytarger, Paltos and Karp knew. As the evidence showed that the arrangement to produce the contract was made between the four of them at a meeting in a Kings Cross restaurant in mid-July 1985 which followed the discovery by Rogerson and Nowytarger that they had been photographed withdrawing the $110,000 from accounts they had opened in false names at the Bank, the inference could be drawn that the purpose of producing the contract was to fabricate evidence in support of a story which would deceive anybody who inquired of Rogerson and Nowytarger as to the source of $60,000 which was part of the amount withdrawn. Police officers, alerted to the fact of the photographed withdrawal, did inquire of Rogerson and Nowytarger as to the source of the amount withdrawn. Rogerson and Nowytarger gave the police the explanation as to $60,000 that it was the purchase price of a Bentley car sold to Karp. Karp, who gave evidence for the Crown, admitted that the ostensible purchase was a sham. Thus the chief issue in contention on this appeal - though the question did not loom large at the trial - is whether there was sufficient evidence, in the cases against the respective respondents, to support a finding that the particular respondent had the intent that, by producing the contract in support of a false story, the police would be deflected from instituting a prosecution for some offence - not, of course, for the offence of conspiracy. It is in this context that the absence of proof of a specific offence assumes significance.

[43]

The fact that Rogerson, who was then a Detective Sergeant of police, and Nowytarger had together withdrawn $110,000 from bank accounts opened by them under false names, though engendering suspicion, was freely admitted by Rogerson in his interview with the investigating police. By asserting the false story of the sale of a Bentley car, the inference can be drawn that he intended to deceive the police and that the contract was produced for that purpose. But did he intend to deflect the police from instituting either a prosecution for a criminal offence or disciplinary proceedings? There was evidence that Rogerson had handed over a bag containing packets of a white powder to a Miss Jones - the pseudonym of a witness who was an admitted drug courier and drug addict - at the Kingsford Smith Airport on or about 14 May 1985 and had received in exchange a large sum of money in $50 notes in a black red-trimmed travel bag. Next, Rogerson enlisted assistance from Paltos and then from Karp (who attended at the restaurant at Paltos' request to assist Rogerson) to produce a deceptive account which he, Rogerson, might use to conceal the true source of $60,000. Then, on 24 July 1985, Rogerson rang Detective Inspector Strong to say that he believed that certain police officers would like to be able to prove that Rogerson was involved in criminal activities and to say that the money withdrawn from the Bank came from legitimate sources. Later, when Mr. Strong (by then Detective Chief Superintendent) interviewed him on the subject of the withdrawal of the money from the Bank, he sought the customary warning before answering because he had heard that the police believed that he "had committed a criminal offence". He understood at the time of the police interview that the police held the belief that a prima facie case existed that he had obtained the money withdrawn from the Bank unlawfully or that the money was stolen. In our opinion, this evidence is sufficient to support a finding that Rogerson used the fabricated sale to explain the source of $60,000 with the intention of deceiving the police and thereby deflecting the police from instituting criminal proceedings based on their belief (as Rogerson understood) that the money withdrawn from the Bank had been unlawfully obtained. Rogerson gave evidence asserting that the Bentley car had in fact been sold to Karp whom he had met socially with Nowytarger and that Karp had paid for the car in cash by instalments which Rogerson put into a biscuit tin in a friend's safe. He said that the instalments had been paid as work on repairing the car proceeded. Rogerson said that nearly the whole of the price had been paid by November 1984 although Karp did not see the car until after July 1985, when the contract had been signed. The jury, if satisfied that Rogerson's evidence was false, were entitled to conclude beyond reasonable doubt that Rogerson entered into the conspiracy to produce the fictitious contract for the purpose of deceiving the police as to the circumstances in which the money in the Bank was obtained and deflecting them from instituting criminal proceedings in relation to that money and for the purpose of causing the fabricated contract to be given in evidence in any proceedings that were instituted against him. Accordingly, there was sufficient evidence to support the conviction of Rogerson.

[51]

It is true that Davern v Messel [39] establishes that the common law doctrine against double jeopardy is not infringed by a Crown appeal against a verdict of acquittal entered by an intermediate appellate court. Nonetheless, the main considerations which support that doctrine also militate against the grant of special leave for a Crown appeal against an acquittal by a Court of Criminal Appeal in other than very exceptional circumstances. The ordinary citizen who is told in unqualified terms by a court of a State constituted by three of the State's senior judges that he or she is acquitted for the reason that, as a matter of law, he or she was entitled to be adjudged not guilty of the crime with which he or she was charged is scarcely likely to comprehend that the acquittal is not as authoritative or binding as it would have been if he or she had been acquitted at first instance by a judge or magistrate of an inferior court or by a jury of lay persons. Moreover, in a context where both the prosecution and the court in a criminal case are likely to be seen by the ordinary citizen as emanations of governmental authority and where the costs of private legal representation are oppressively high, there is an undeniable element of harshness in a situation where a citizen who has been told by a competent court of a State that the criminal proceedings which the State has brought against him or her are resolved in his or her favour is subjected to the renewed jeopardy of an appeal by the State [40] . To say, in that context, that the acquitted person cannot complain if the State subjects him or her to a further appeal since he or she enlivened the appellate process by appealing to the intermediate appellate court may have some validity as a debating point. It is, however, somewhat removed from reality. Indeed, in a context where the overwhelming balance of power and resources will ordinarily favour the State, the proposition that a person is fair game for a further appeal by the Crown by reason of the fact that he or she was acquitted by a Court of Criminal Appeal after being subjected to what the Court of Criminal Appeal has held to be a miscarriage of justice resulting in a wrong conviction seems to me to be singularly unpersuasive.

[56]

It is arguable that the decision of the Court of Criminal Appeal in the present case involves a question of principle of considerable general importance in that there are some passages in the judgment of Lee C.J. at C.L. (with whom Grove and Loveday JJ. agreed) which can, particularly if read in isolation, be construed as propounding a general rule to the effect that the offence of conspiring to pervert the course of justice in future criminal proceedings by deflecting or frustrating police investigations cannot be established unless the Crown prove "the general nature" of some criminal charge "which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged" [41] with the consequence that "(except where the accused asserts a bogus crime) either there must be evidence that an identifiable crime has been committed, or evidence that the police conducting the investigation have before them some evidence which raises a suspicion or belief that an identifiable crime has been committed" [42] . Such a general rule would, for example, involve the surprising consequence that a person who was proved (by, e.g., confessional statements) to have obtained large sums of money from serious criminal activity and to have conspired with others to pervert the course of anticipated criminal proceedings in respect of that activity by bribing potential witnesses to give false evidence, could only be convicted of conspiracy to pervert the course of justice if it were possible not only to prove that he had engaged in serious criminal activity but also to identify particular crimes which he had committed. As I followed the argument, however, none of the respondents sought to sustain such a broad and unqualified rule. More importantly, careful examination of the judgment of Lee J., particularly of its decisive final six paragraphs, discloses that the actual decision of the Court of Criminal Appeal did not depend upon acceptance of any such rule. To the contrary, the actual decision turned upon the particular circumstances of the case, including the prosecution's conduct of the trial, and upon the rejection of a proposition framed in narrow terms to fit those circumstances.

[60]

Police inquiries do not, of themselves, constitute "the course of justice" for the purposes of the offence of perverting the course of justice. It is necessary, in a case involving alleged conduct to divert or frustrate police inquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert. It is true that one can point to statements in the cases emphasizing the closeness of the connexion between police investigations and pending, probable or possible curial proceedings in relation to the subject matter of those investigations [45] . The closeness of that connexion may, in some circumstances, found a conclusion that conduct aimed at frustrating or misleading police investigations was directed to perverting the course of justice in pending or possible future court proceedings. Nonetheless, such statements should not be permitted to divert attention from the fact that the offence of conspiring to pervert the course of justice involves conspiring to pervert the course of justice in curial proceedings. Where a conspiracy to mislead or frustrate police inquiries is involved, the offence of conspiring to pervert the course of justice will not be established unless it appears that a purpose of the conspiracy was, by misleading or frustrating the police investigation, to pervert the course of justice in pending or possible curial proceedings. For example, if the moneys involved in the present case had indeed come from a "legitimate source" such as "gambling" and the purpose of the concoction of the false story had been merely to conceal Rogerson's gambling activities from his police superiors, there would have been no conspiracy to pervert the course of justice. Necessarily, the onus lay upon the prosecution to exclude that or any other reasonable explanation of the acts of the accused. That is not to say that it is necessary to establish that an accused must have had particular identified curial proceedings in contemplation. It would, for example, suffice if the evidence established, whether directly or by inference, an intention to pervert the course of justice in any future curial proceedings that might ultimately be instituted in relation to the subject matter of the police inquiries.

[62]

On the other hand, if the evidence in the present case had actually established that the moneys deposited in the bank accounts with the National Australia Bank were the proceeds of criminal activity on the part of Rogerson, the inference could more readily be drawn that a conspiracy to concoct a false story about their origins was directed to perverting the course of justice in any subsequent criminal proceedings relating to those criminal activities. In a context where the prosecution did not seek to prove the commission of some earlier offence and where not even a police investigation had commenced, the question obviously arose whether the evidence established any relationship at all between the conduct of the respondents and some pending, probable or possible course of justice. As I read the judgment of Lee J., the Court of Criminal Appeal held that the evidence failed to establish, or provide an adequate foundation for inferring, any such relationship. The basis of the actual decision to that effect was the rejection of the narrow proposition that, in a case such as the present where no identified curial proceedings at all were pending or in the contemplation of the authorities, it suffices to establish a conspiracy to pervert the course of justice to prove that persons have acted in concert to "fabricate a story as to the source of moneys which they have, but nothing further is shown to relate those moneys to the commission of some crime - as in this case" [46] . In my view, the Court of Criminal Appeal was plainly correct in rejecting that narrow proposition. Proof of the fabrication, by accused persons acting in concert, of a story to frustrate or mislead a police investigation of the source of moneys which are not proved to be unlawfully obtained would not, of itself, suffice to establish conspiracy to pervert the course of justice. There must also be proof that the fabrication was for the purpose of perverting the course of justice in pending or possible curial proceedings which the accused had in contemplation. It is true that the correctness of the factual conclusions reached by the Court of Criminal Appeal about the effect of the evidence, in the context of the conduct of the prosecution case at the trial, is debatable. The correctness of those factual conclusions does not, however, involve any important question of general principle of a kind which would sustain a grant of special leave to appeal to this Court from verdicts of acquittal entered by a court of criminal appeal.

[84]

It is difficult to accept the Court of Criminal Appeal's conclusion in Bailey that the purpose of the criticism of Manley in Newland "may have been" to criticize the reasoning and not the decision in Manley , for Lord Goddard said in Newland that the only safe course was no longer to follow the decision in Manley . Moreover, although in Newland Lord Goddard referred to Dr. Stallybrass' criticism of the dictum of Lawrence J. in Higgins , his Lordship did not suggest that the decision in Manley could be supported on the ground that "her fraud interfered with the administration of justice". It is also difficult to see how the decision or the reasoning in Vreones supports the view that investigations by police officers of actual, alleged or suspected crimes are part of "the course of justice" for the purpose of the offence of attempting to pervert the course of justice. In Vreones , the appellant had been convicted on a count which alleged that, after altering the character of certain samples of goods, he forwarded them to an Association with the intent that they should be used before arbitrators if any dispute arose between the parties to the contract for the sale of the goods. No arbitrators had been and, because of his conduct, ever were appointed. But the conviction was upheld. Lord Coleridge C.J. thought that the case was one of the "manufacture of false evidence for the purpose of misleading a judicial tribunal" [7] . Pollock B. thought "that by tampering with the evidence which was to be laid before that tribunal the defendant was interfering with the course of justice" [8] . Vreones is certainly authority for the proposition that the offence of attempting to pervert the course of justice may arise when the attempt is to pervert proposed judicial proceedings. It has been so regarded in this Court [9] . But it lends no support to the proposition that police investigations are part of "the course of justice" for the purpose of the offence of attempting to pervert the course of justice. Moreover, as Watkins L.J. said in Selvage , the facts of Vreones were "as close to if not on the very boundary itself of the offence of perverting the course of justice" [10] .

[87]

It is obvious from these cases that this offence which affects the administration of justice is not confined to matters directly concerning criminal proceedings already in being. It impinges upon the process of investigating crime suspected by the police of having been committed or falsely alleged to have been committed by a person desirous of unlawfully bringing criminal proceedings about or of causing police officers to embark upon the process of investigating false accusations to the detriment of their other duties. The Court also said [13] : a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice. These passages in Selvage were cited in this Court in Murphy [14] for the purpose of showing that conduct which occurred before any curial proceedings had been commenced could constitute the offence of attempting to pervert the course of justice. But in Reg. v Todd [15] , in what is by far the fullest and most valuable examination of the whole subject, the Full Court of South Australia said: With all respect to the Court of Appeal of Northern Ireland, however, we are unable to accept, in the absence of authority, that the course of justice for this purpose includes the investigation by the police of facts for the purpose of ascertaining whether or not a crime has been committed. A perusal of the very full discussions, supported by reference to many cases, on the subject of perjury, persuades us that if there had been a parallel (but less serious) crime of giving false information to the officers of the law some mention of it would have appeared in the text books. 1. See Reg. v Thomas [1979] QB., at p. 331; Reg. v Selvage [1982] QB., at pp. 380-381. 2. Selvage [1982] QB., at p. 380. 3. [1982] Q.B., at p. 381. 4. (1985) 158 C.L.R., at p. 610. 5. [1957] S.A.S.R. 305, at p. 328.

[99]

Furthermore, the course of justice is not synonymous with the course of any particular judicial proceedings. It is well established that a criminal contempt is committed where there has been "an interference with the due administration of justice either in a particular case or more generally as a continuing process" [31] . Thus, to dismiss an employee because he was away from work by reason of jury service is a contempt because it has a tendency to interfere with the administration of justice as a continuing process [32] . Likewise publishing "scandalous" matter concerning a court or judge is a contempt of court although the matter does not relate to any pending proceedings [33] . In Selvage [34] , the Court of Criminal Appeal pointed out that the course of justice is "a term with which the administration of justice is for present purposes synonymous". Since attempting to pervert the course of justice is a form of criminal contempt, in principle, the offence of attempting to pervert the course of justice should also encompass attempts to pervert the course of justice as a continuing process. No doubt such cases are rare because they require conduct which perverts the course of justice in general and not in any particular case. Bribing a judicial officer to decide cases of a particular class in a particular way or bribing a police officer to attempt to persuade other police officers to give false evidence whenever members of a particular organization were arrested would seem to be examples of the offence. Altering the current endorsements on the records of drivers' licences in a case where, by statute, the records were admissible as evidence of their contents would also seem to be an example of attempting to pervert the course of justice if the relevant intent was present because it has a tendency to interfere with the course of any judicial proceedings arising out of the charging of the drivers concerned. But in Selvage , the Court of Criminal Appeal held to the contrary. The Court said [34] :

[112]

I am unable to accept the conclusion that, if accepted, the evidence established the offence because it proved that the respondents conspired to deceive the police and deflect them from instituting a prosecution based on the belief of those officers that the money, withdrawn from the National Australia Bank, was unlawfully obtained. The acceptance of such evidence would lead only to the conclusion that the respondents had agreed to fabricate evidence with the intention of perverting the course of justice. It would not establish that they had conspired to do anything which had the tendency to pervert the course of justice. A conspiracy to pervert the course of justice requires not merely an intention to pervert the course of justice but an agreement to do something which has the tendency to pervert it. The conduct of the respondents was not proved to have any tendency to pervert the course of justice because it was never proved what proceedings could have been affected by their conduct. The offence of attempting to pervert the course of justice is not proved if all that can be established is that the conduct of the accused frustrated or interfered with an investigation into what the investigators believed or suspected might be a crime; it must be shown, in a case such as the present, that the conduct of the accused had the tendency to prevent the investigators from instituting proceedings in respect of a crime. Nor is the offence proved if all that can be established is that the accused believed that what they were doing would pervert the course of justice. Whatever the accused have done or intended to do, the offence of conspiracy to pervert the course of justice is not made out unless they have agreed to do something which has the tendency to pervert the course of judicial proceedings. Since the Crown at no stage attempted to identify the crime or even the category of the crime, which would be the subject of judicial proceedings, there was no evidence upon which the jury could find that the respondents had conspired to do something which had the tendency to pervert the course of judicial proceedings.

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Judgment (116 paragraphs)

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