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[1992] FCA 226
Federal Court of Australia
1992-05-22
Foster J
Original judgment source is linked above.
Criminal law - Offences relating to the administration of justice - common law - attempt to pervert the course of justice - elements of offence - mens rea - whether legal practitioner representing client in court under false name guilty of offence - bona fide belief in ethical correctness of conduct.
R v Vreones (1891) 1 QB 360, applied.
R v Kellett (1976) QB 372, applied.
R v Thomas (1979) QB 326, considered.
R v Selvage (1982) QB 372, applied.
R v Murray (1982) 1 WLR 475, applied.
R v Doz (1984) 12 CCC (3d) 200, considered.
R v Murphy [1985] HCA 50; (1985) 158 CLR 596, followed.
R v Freeman (1985) 3 NSWLR 303, applied.
R v Sinclair (1989) 44 A Crim R 449, considered.
Counsel for the appellant: Mr G. Morrish QC with Mr R. Webster
Solicitors for the Appellant: Director of Public Prosecutions
Counsel for the respondent: Mr T.E.F. Hughes QC with Mr S.F.C. Wilcox
Solicitor for the respondent: Abbott Tout Russell Kennedy
2. The order made by Foster J. on 23 July 1990, entering a judgment of acquittal in respect of the respondent, be set aside, and in lieu thereof -
3. The decision of Magistrate Ward on 15 September 1989 to convict the respondent be restored.
4. The matter be remitted to the Supreme Court of the Australian Capital Territory for consideration of penalty.
This is an appeal from an order of the Supreme Court of the Australian Capital Territory allowing an appeal by the respondent, Stuart Hearne Pilkinton, against his conviction in the Magistrates Court of the Australian Capital Territory for the common law offence of attempting to pervert the course of justice.
2. The respondent objected to the competency of the appeal but that objection was dismissed: Hatty v Pilkinton [1991] FCA 139; (1991) 28 FCR 352; 99 ALR 695.
3. The appeal to the Supreme Court of the Australian Capital Territory was conducted on the transcript of the oral evidence and on the documentary material that had been placed before the Magistrates Court; no additional evidence was placed before the Supreme Court.
4. I begin by setting out the facts found by the judge on the appeal to the Supreme Court. His Honour found that Mr Pilkinton appeared as a solicitor for one Dorothy Camilleri before the Magistrates Court, Canberra, on 12 January 1988 and announced a plea of guilty on his client's behalf to a charge of driving a motor vehicle whilst having a blood alcohol level above the prescribed limit.
5. The defendant was not charged under her real surname of Camilleri or under the name of Bayliss, the surname of her husband which she sometimes adopted. She was charged under the name of Rozanne Marie Crawford and this was a false name which she had given to the police on the night of her arrest.
6. Mr Pilkinton had been retained by Ms Camilleri as her solicitor in connection with other matters and he knew her correct name. At the time Mr Pilkinton entered the plea and appeared for her he was aware that Ms Camilleri had given a false name to the police, that she was appearing before the court in answer to that false name and that the proceedings were being conducted before the Magistrate on the basis that the defendant's true name was the false name previously given. Mr Pilkinton appeared for her in that false name but, for reasons he explained, he did nothing to correct the situation by revealing her true name to the Magistrate. Ms Camilleri was convicted and fined $200 in the name under which she had been charged and under which she had appeared, Rozanne Marie Crawford. Her driving licence was suspended, the order for suspension being made with reference to her false name, Rozanne Marie Crawford. The judge observed that these facts were not disputed by Mr Pilkinton.
7. It is convenient at this point to refer to the transcript of the proceedings before the Magistrate when Mr Pilkinton appeared for Ms Camilleri to observe, in a little more detail, what occurred before the Magistrate. The transcript was in evidence before the Supreme Court. It appears from the transcript that when the name "Rozanne Crawford" was called, Mr Pilkinton announced his appearance "for the defendant". He added: "She is present in court". (The evidence before the Magistrate who convicted Mr Pilkinton was that Ms Camilleri was in court at this time and Mr Pilkinton, in his evidence in chief, agreed that he had previously told her to stand forward when "the name" was called.) The Magistrate inquired: "The matter is a plea, is it ?". Mr Pilkinton replied that it was. There was then a discussion about a second charge of disobeying a red traffic signal. The prosecutor said that there was no written evidence about this and the charge was dismissed. The prosecutor gave a brief outline of the case with respect to the first charge and tendered a certificate of breath analysis. The Magistrate asked whether there was anything known, to which the prosecutor replied that there was not. Mr Pilkinton then made a plea in mitigation of sentence on behalf of the defendant and put before the Magistrate matters about which he had obviously been instructed by his client, Ms Camilleri. Towards the end of the plea in mitigation Mr Pilkinton is recorded in the transcript as saying: "She instructs me that she sincerely regrets the offence as it is a blot on her otherwise good record".
8. I return to the judge's findings. His Honour observed that there was no significant dispute that what had thereby occurred had a tendency to pervert the course of justice. The conviction was recorded in a manner which had not truly identified the person convicted, which fact could, at the very least, lead to obvious problems in the enforcement of the penalty and the period of disqualification from driving.
9. On the day after the hearing Mr Pilkinton wrote to Ms Camilleri setting out for her information the fact of the conviction and the amount of the fine, the time allowed for its payment and the period of suspension of her driving licence. He added the admonition that "(t)his means that you may not drive for any purpose whatsoever within the ACT for a period of three months". His Honour considered this may have ameliorated to some extent the potential detrimental effect of what had occurred but, that it did not, and could not, fully undo the mischief.
10. His Honour concluded that a further result of the use of the false name was that the defendant's record of traffic offences was not placed before the Magistrate.
11. The case sought to be made against Mr Pilkinton before the Magistrate involved more serious allegations. Ms Camilleri gave evidence that she had told Mr Pilkinton before he appeared for her in the Magistrates Court that she had not only given a false name and address to the police who arrested her and had maintained this falsehood when appearing unrepresented before a Magistrate who granted her bail, but also that the false name was in fact her sister's name. She said that she had told Mr Pilkinton that she had adopted this ruse because she knew her sister had a good driving record whereas she did not, and also because, if she revealed her true name, she would have faced arrest on outstanding warrants for the payment of money, issued in her true name. She said that she had told Mr Pilkinton that she wished to correct the wrong she had thus done to her sister and to clear up the matter with the warrants and that she had therefore instructed Mr Pilkinton to tell the court about these matters and to have them put right. In failing to do so, she said, Mr Pilkinton disobeyed her express instructions.
12. These allegations were rejected by the Magistrate because of the adverse view he took of the credibility of Ms Camilleri. His Honour concluded that the Magistrate had clearly formed the view that Ms Camilleri and her supporting witness were not satisfactory or reliable and he said that his reading of the transcript of the evidence of those witnesses supported that conclusion. The prosecution did not seek to rely on that aspect of the case on the hearing before the learned Judge and he likewise rejected the allegations.
13. His Honour then considered portions of Mr Pilkinton's evidence, of considerable importance in the case, that the Magistrate had rejected. Mr Pilkinton gave evidence that in a conference with him before he appeared for Ms Camilleri in court, she informed him that she had told the police about her giving a false name and that she would consequently also be charged with giving a false name. The Magistrate did not accept that evidence and his failure to do so was challenged before his Honour. His Honour considered that he was not at any significant disadvantage vis-a-vis the Magistrate in considering this point and, for several reasons, including Mr Pilkinton's good character and high professional reputation, and the successful attacks that had been made on the credit of Ms Camilleri, he concluded that the considerations to which the Magistrate adverted did not suffice to lead to a rejection of Mr Pilkinton's evidence on this matter.
14. The judge also reached a different conclusion to the Magistrate about evidence Mr Pilkinton had given to the effect that when he arrived at court on the day of the hearing, he spoke to the person who performed the role of monitor to the presiding Magistrate and asserted that there should be in the list a fresh charge against his client of giving a false name, to which he received a reply that there was no fresh charge. In reaching a different conclusion, his Honour noted that the Magistrate had said that he was satisfied that when Mr Pilkinton arrived at Court on the day of the hearing he spoke to the monitor saying that he represented Ms Camilleri and that he was told by that official that there was no such name in the list. The Magistrate had also accepted that Mr Pilkinton, having spoken to the monitor, went outside the court, saw his client in the foyer area and said to her: "(y)our name is not on the list. Are you sure you have got the right day ?" and that he received the reply: "(y)es, it's up there on the board", his client pointing to the false name, Rozanne Marie Crawford, which appeared there. He then asked: "Is that the false name you used ?" and received an affirmative reply.
15. His Honour found that Mr Pilkinton's evidence that it was his understanding, when he arrived at court on 12 January 1988 to appear for Ms Camilleri, that she would be charged in her own name with the traffic offence and also with the offence of giving a false name to the police "has not been disproved beyond reasonable doubt on the evidence of the case or on the findings of the learned Magistrate." Indeed, his Honour found it was supported by the evidence and by other findings. Similarly, Mr Pilkinton's evidence as to his conversation with the monitor about the fresh charge and the monitor's advice that there was no fresh charge was, in his Honour's view, consistent with Mr Pilkinton's general case as to the state of his knowledge and was not negatived by any acceptable evidence. Therefore, his Honour considered, it was proper to approach the appeal before him on the basis that Mr Pilkinton was confronted, when he arrived at court, with an unexpected situation, namely, that his client was still charged under a false name and was not charged with giving that false name to the police.
16. Having reached these conclusions his Honour then turned to consider whether he was satisfied, beyond reasonable doubt, that Mr Pilkinton, in the light of the events that occurred after he was apprised of the facts, had the intention of perverting the course of justice.
17. His Honour was satisfied that Mr Pilkinton was confronted with a demanding and difficult situation which he described as follows: "His client wanted the matter disposed of promptly and he himself was under some constraint as to time, as he had commitments in another court. If he put his client forward on a plea of guilty under the false name, the court would be misled as to that name and a conviction would be recorded in that name, with possible attendant undesirable consequences. But if he himself raised the matter of the false name, without express instructions to do so, he would be acting against his client's interests by inviting the further charge which had, contrary to his expectations, not in fact been brought." He resolved that matter by adopting the attitude, which he expressed to his client in the words '(i)t is up to the police to charge you', after receiving the affirmative answer to his inquiry whether she was sure she told the police about giving a false name.
18. His Honour observed that in cross-examination, Mr Pilkinton was asked whether he had checked with the prosecutor what had happened to the charge of giving false information. He answered that he did not think it appropriate to do so, because it was up to the police to charge his client in the circumstances where he had no instructions to reveal the matter to the court, or to the prosecution.
19. His Honour also noted that Mr Pilkinton had said that he received no instructions from Ms Camilleri, after saying to her that it was a matter for the police to charge her, to do other than to proceed with a plea of guilty to the charge as framed. His Honour concluded that Mr Pilkinton summed up his attitude to the situation with which he was confronted as follows: "I considered it quite improper for me to volunteer to the court, without instructions to do so, as I had none, that she had committed some other offence, in exactly the same way as if a client tells me they have ten convictions, and the prosecutor says, 'nothing known', you do not tell the Court about the convictions" (his Honour was obviously quoting from a passage in the transcript of Mr Pilkinton's cross-examination before the Magistrate).
20. His Honour referred to the ethical rules applicable to the conduct of advocates but made no finding whether Mr Pilkinton was in breach of any rule of professional ethics (his Honour thought it possible that he was) or whether he had in fact breached his ethical duty to the court through an over-zealous performance of his perceived duty to his client (his Honour thought he may have).
21. The importance, however, of the ethical considerations was, in his Honour's view, that a bona fide belief in the ethical correctness of a particular forensic course was, in a case such as that of Mr Pilkinton, incompatible with an intention to pervert the course of justice by the adoption of that course. His Honour was not confident that the Magistrate had actually dealt with the issue of Mr Pilkinton's bona fide belief in the ethical correctness of the course he took. His Honour concluded that, the issue having been raised, it was for the prosecution to prove beyond reasonable doubt that Mr Pilkinton was not motivated in what he did by a bona fide belief as to the ethical correctness of the course he took and he was quite satisfied, on a reading of the whole of the evidence, that the onus had not been discharged.
22. In these circumstances, his Honour concluded that the conviction could not stand. He ordered that it be set aside and entered in its place a judgment of acquittal.
23. Before the Full Court, counsel for the appellant abandoned grounds of appeal that sought to challenge the findings of fact made by the learned Judge where they differed from the findings of the Magistrate and he accepted that unless the court was satisfied that a finding of the requisite intention was inevitable on the facts as found by his Honour then the appeal should be dismissed. But he said that such a finding was indeed inevitable and that the appeal should therefore succeed.
24. The argument for the appellant was that Mr Pilkinton, knowing that the defendant he represented was being proceeded against under a false name, deliberately deceived the court and aided his client to deceive the court. The fact that the court was deceived by the actions of Mr Pilkinton and his client, had the tendency to pervert the course of justice and the deception was intended. The result of the conduct, namely that the court would act on a false basis, was the intended result of the conduct and that intention was an intention to pervert the course of justice. Counsel argued that the fact that Mr Pilkinton's conduct was motivated by a belief that it was ethically correct to behave in that way was irrelevant and the learned judge in the Supreme Court had confused motive with intention.
25. The common law offence of attempting to pervert the course of justice involves "the doing of some act which has a tendency and is intended to pervert the administration of public justice": R v Vreones (1891) 1 QB 360 at 369 per Baron Pollock, cited with approval by the High Court in R v Murphy [1985] HCA 50; (1985) 158 CLR 596 at 609.
26. The offence has been said to be broadly conceived and defined: Gillies, Criminal Law (1990) 771. It can be committed in a wide range of circumstances including making threats to witnesses (see R v Kellett (1976) QB 372), tampering with a blood sample (R v Murray (1982) 1 WLR 475) and requesting a potential witness to make a false statement for the purpose of preventing a proper investigation which may thereby render less likely the possibility of a criminal prosecution being undertaken or succeeding (R v Sinclair (1989) 44 A Crim R 449). In its report No.96, Criminal Law - Offences Relating to Interference with the Course of Justice (HMSO, 1979) at 85, the Law Commission referred to then recent instances of persons pleading in another's name and cited newspaper reports of such cases in which there had been convictions for attempting to pervert the course of justice or for conspiring to do so. The Commissioners commented that such cases were clear examples of the perversion of the course of justice and the draft Bill they proposed for codifying the law contained a provision to cover that type of impersonation in court.
27. In R v Doz (1984) 12 CCC (3d) 200, a case of impersonation, the Alberta Court of Appeal dismissed an appeal against a conviction for wilfully attempting to pervert the course of justice. A lawyer acting for the defendant in a criminal matter called a person to give evidence as the accused, creating the false impression that the person who had actually been arrested on the night in question was before the Court. As the lawyer knew, the actual offender had given a false name to the police and the lawyer's "client", the person named in the charge, was the person whose name had been falsely given. Delivering the judgment of the court, McGillivray C.J.A. observed at 209-210:
"Mr Doz clearly created the impression that the accused,
that is the person who was arrested by the officer on the
night in question, was before the court. That to his
knowledge was false. Mr Doz showed no realization that as
an officer of the Court he had a duty not to mislead the
court. By his conduct he was not only guilty of conduct
unbecoming a barrister but also of the criminal offence of
attempting to obstruct justice as charged."
Doz was also convicted of suborning perjury. This gave rise to a question of corroboration which was separately considered by the court.
28. It was not suggested before the Full Court that the acts did not have a tendency to pervert the course of justice and plainly they had, as his Honour pointed out; the critical question now concerns Mr Pilkinton's intention.
29. Many cases make it clear that an intention to pervert the course of justice must be proved, although the precise nature of the required intention has not been much discussed in the reported cases (see Gillies op. cit. at 775) and the intent has been said to be elusive: see Miller, Contempt of Court (1989) at 8, and see also at 150. It is clear, though, that proof of the offence requires more than proof merely of the intention to do an act that may have a tendency to pervert the course of justice: see R v Selvage (1982) QB 372 and R v Freeman (1985) 3 NSWLR 303, in which the New South Wales Court of Appeal declined to follow R v Porter (1910) 1 KB 369.
30. The nature of the requisite intention to pervert the course of justice was one of the issues considered by the Court of Appeal, Criminal Division, in R v Kellett (1976) QB 372. In that case, the appellant had been convicted of attempting to pervert the course of justice. The particulars of the counts were, in essence, that the appellant had unlawfully attempted to pervert the course of justice by attempting to dissuade persons from giving evidence in divorce proceedings, to which he was a party, in accordance with statements that those persons had made. The appellant had received copies of disparaging statements made about him to an inquiry agent by his neighbours, who were potential witnesses in the divorce proceedings. He sent a friend, posing as a prospective tenant, to ask the neighbours their opinion about him. He then wrote to the neighbours stating that he intended to sue them for slander, that the question of damages would be discussed with his solicitor and that they might like to let him have notification that the statements they had made to the inquiry agent had been withdrawn. The trial judge, Lord Widgery C.J., directed the jury that they had to decide whether, in his letter, the defendant was threatening to bring a slander action against the neighbours and whether he was doing that with the intention of causing them not to give the evidence mentioned in the statements to the inquiry agent.
31. It was argued on the appellant's behalf that he had no intention of interfering with the course of justice and that since the appellant never had the intent to commit the offence with which he was charged (it was conceded that he was probably in contempt of court) his conviction should be quashed.
32. The court (Stephenson and Orr L.JJ. and Kenneth Jones J., judgment delivered by Stephenson L.J.) observed that the reported cases where the offence had been considered were cases where the attempted interference was by means of a threat or a reward made with an intent to prevent justice being done. Their Lordships rejected what they described as the extreme view that any interference with a witness is an attempt to pervert the course of justice, pointing out this would make a man guilty of the offence if he went privately to a witness who made a false statement and, by reasoned argument and by material facts and documents, tried to dissuade him from committing perjury and to persuade him to retract the lies and to tell the truth. Having discussed the authorities, their Lordships said (at 388):
"With this authority in mind we would not consider that the
offence of attempting to pervert the course of justice would
necessarily be committed by a person who tried to persuade a
false witness, or even a witness he believed to be false, to
speak the truth or to refrain from giving false evidence."
Then follows a passage of importance to the present appeal:
"Secondly, with this among other authorities in mind, we
think that however proper the end the means must not be
improper. Even if the intention of the meddler with a
witness is to prevent perjury and injustice, he commits the
offence if he meddles by unlawful means." (At 388.)
"If the defendant's intention in threatening an action for
slander was to make Mr Keys and his daughter withdraw their
statements and not give evidence in accordance with them, he
was guilty of the offence charged, whether he had in mind
any other consideration or whether he intended to go on with
the action in any event. It was not necessary for his threat
to be empty or not bona fide, in the sense that he would
have abandoned all idea of suing if the statements had been
withdrawn."
33. Thus, a person may have the requisite intention to pervert the course of justice even if he also has an intention to prevent perjury and to prevent what he considers to be injustice. There are obvious reasons why this should be so because the due processes of the law may be just as much interfered with by someone who deliberately acts to interfere with its processes for what he perceives to be a good reason as they are by someone who interferes for reasons he knows to be corrupt.
34. I now turn to consider Mr Pilkinton's intention as it should be inferred from the facts found by the learned judge who heard the appeal from the Magistrate.
35. The inference is irresistible that Mr Pilkinton, an experienced practitioner, knew that the Court would be misled by the conduct in which he and his client were engaged and would proceed on a false basis. He must have known this when he announced to the Magistrate that he appeared "for the defendant" who had appeared before the Court to answer charges in a name that he knew to be false. The learned judge's description of what he termed the demanding and difficult situation with which Mr Pilkinton was confronted, and to which I have already referred, shows that his Honour proceeded on this basis. In what I take to be his Honour's description of Mr Pilkinton's awareness of the situation with which he was confronted he said: "If he put his client forward on a plea of guilty under the false name, the Court would be misled as to that name ...".
36. That the court would proceed on a false basis was obviously an inevitable consequence of the course of conduct, involving Mr Pilkinton and his client, in which Mr Pilkinton took an active part as counsel; and it was known to be an inevitable consequence. In these circumstances, the inference is also irresistible that Mr Pilkinton, whatever his reason, intended the result that the Court should be misled as to the real name of his client and should proceed upon a false basis.
37. As I have said, it was not suggested that Mr Pilkinton's actions did not have a tendency to pervert the course of justice. It must have been obvious to Mr Pilkinton that his acts had that tendency, at the very least with respect to the recording of a conviction in the false name, and the judge proceeded upon that basis when he described Mr Pilkinton's awareness of the situation with which he was confronted as being that: "... a conviction would be recorded in that name (the false name) with possible attendant undesirable consequences."
38. An intention to do an act that has a tendency to pervert the course of justice, knowing that it has that tendency, is not however necessarily the same thing as an intention to pervert the course of justice. If proof of the offence requires what may be termed a literal intention to pervert the course of justice, proof of the intentional doing of an act that is known to have that tendency may be insufficient because it may leave open the possibility that an actual perversion of the course of justice was not intended. There is a difference between intending interference and risking interference. The classical formulation of the elements of the common law offence by Baron Pollock in R v Vreones at 369, which has often been repeated, is in terms of an intention to pervert the administration of justice, not an intention to do an act that has a known tendency to pervert the administration of justice: see also R v Murphy (1985) 4 NSWLR 42 at 49; cf R v Foord (1985) 20 A Crim R 267 at 268. Gillies, op cit at 775, suggests that in principle it should suffice to prove that a defendant acted knowing that his act had the potential to pervert the course of justice for otherwise the scope of the offence might be unduly narrowed and because, frequently, a person will be acting to bring about a more limited object, with the obstruction of justice, or the potential for the obstruction of justice, representing an incidental by-product of the person's conduct: see also Miller op cit at 8. There is much force in this suggestion when looked at from the viewpoint of the protection of the administration of justice. Not only may the tendency materialize but an intentional act, with knowledge of the tendency to pervert, will of its nature be an act that should find no place in the system of justice. On the other hand the offence is a very serious one and one which has attracted criticism on account of its lack of definition: see Bentil, Attempting to Pervert the Course of Justice, (1984) 128 Solicitors' Journal 213.
39. I do not think it necessary to examine this question further in the present case because I consider that, in at least one respect, Mr Pilkinton's participation in the deception of the Magistrate involved not merely a tendency to pervert the course of justice but an actual perversion of, or interference with, the course of justice.
40. As I have noted, the learned judge proceeded on the basis that what occurred before the Magistrate had a tendency to pervert the course of justice because, amongst other things, the conviction was recorded in a manner which did not truly identify the person convicted and his Honour noted the potential consequences of that. In my view, however, whilst the recording of a conviction in a false name undoubtedly has a tendency to pervert the course of justice, the entry of a false record actually perverts the course of justice in circumstances such as those that occurred in the present case, and it does so at the time the record is made. At that moment, the due administration of justice is obstructed for the reason that the court's records have become false in a critical respect.
41. The records of courts, both criminal and civil, are relied upon for many purposes connected with the administration of justice and it is of fundamental importance that they should be correct and that confidence in them is not undermined. The true identity of the parties to proceedings is obviously critical to the proper keeping of the record. In general, the records are public documents. They are relied upon to enforce the orders of a court, including orders in the nature of penalties such as those for the suspension or cancellation of a driver's licence. The records are also relied upon to prove that a person has been convicted of an offence when it becomes necessary to do so in legal proceedings. If a conviction is recorded in a false name the administration of justice will be harmed because the conviction is unlikely to be brought to the notice of a court imposing a penalty for any subsequent offence. A false record may also harm an innocent person to whom it apparently refers. Such consequences of the falsity of a court's records may occur long afterwards, or they may in fact never occur. They may also occur almost immediately after the false record is made. But these considerations should not divert attention from the circumstance that the false entry in the court's records is itself a perversion of the course of justice.
42. In these circumstances, subject to the question of Mr Pilkinton's belief in the ethical correctness of what he did, to be considered later, I consider it inevitable that Mr Pilkinton did intend to pervert the course of justice by the deception to which he was a party for the reason that there was not only a tendency for justice to be perverted but there was a virtual inevitability that justice would in fact be perverted in the way I have described. I do not think it can be doubted that Mr Pilkinton knew that the due administration of justice would be obstructed by the entry of a false record even if he hoped that no further harm might come of it and even though he told his client that she should not drive during the period of disqualification imposed upon her in her false name. I have referred to a "virtual" inevitability because there might have been a remote possibility of the falsity coming to light in some way before the Magistrate made the order and it was recorded, but I do not think that remote possibilities of this nature affect the inference that is to be drawn about Mr Pilkinton's intention. I have already drawn attention to what the primary judge said about Mr Pilkinton's view of the situation with which he was confronted and which involved an appreciation that the conviction would be recorded in the false name. In the circumstances under which Mr Pilkinton appeared to make a plea in mitigation of sentence, records of the court would obviously be entered up in the ordinary course and they would obviously be entered falsely. This was the inevitable result of the court proceeding on a false basis, and that was a result that Mr Pilkinton intended.
43. Before turning to consider the possible effect of the ethical problem upon any conclusions that might otherwise be drawn about Mr Pilkinton's intention, I should refer to another way in which, in my opinion, the course of justice was actually perverted by what, on any view, occurred. The principle of public justice is seriously offended if proceedings in court are conducted on a false basis as they were in the present case. The Magistrate, and anyone else present in court not privy to the deception and not knowing the defendant or otherwise having special knowledge, would assume that the person who appeared to answer the charge was in fact a person with the name under which she was charged, in this case someone called Rozanne Crawford. When a legal practitioner announced his appearance for the defendant those present would be entitled to assume and would assume - not that they would ordinarily have any doubt about the matter - that the legal practitioner was not privy to any deception of the Court and that, as far as the practitioner was aware, he was appearing for a client in her true name. If those assumptions were false the proceedings would not, in a fundamental respect, be what they appeared to be. In this case they would have appeared to be proceedings against a person called Rozanne Crawford, of whose offence and of whose circumstances those present heard. But the appearance was not the reality; the reality was that a person called Dorothy Camilleri had committed the offence that was alleged and it was her circumstances of which the legal practitioner spoke.
44. It is quite beside the point that the case was a commonplace one or that the proceedings involved a straightforward plea in mitigation of sentence. The due administration of public justice requires that proceedings are what they appear to be, for otherwise the safeguards involved in the principle do not operate or operate in an impaired way. For there to be proper public scrutiny, that which is exposed to public scrutiny must be what it appears to be in respect of the fundamental matter of the identity of the person before the court. From this viewpoint, the mischief does not end when the proceedings end or remain within the confines of the court. It is inherent in the notion of public justice that, except in special circumstances, proceedings may be reported in newspapers and in other news media. Although it does not bear upon the point of principle, except by way of illustration, it is notorious in the Australian Capital Territory that reports of convictions for drink-driving offences are published routinely in the press. Practical harm may therefore be caused to an innocent person whose name, either intentionally or unwittingly, has been chosen as the false name and is used in the legal proceedings. What will in fact be a fair and accurate report of what actually occurred in court will spread the deception and the harm.
45. Having regard, however, to the way in which the case was argued, I say no more about that aspect and proceed upon the footing that Mr Pilkinton intended, although it may well be for what he considered a compelling reason, that the conviction should be recorded in the false name that his client used to the police, under which he appeared in court, and in answer to which he appeared for her.
What then of a bona fide belief, motivating Mr Pilkinton, that what was done was ethically correct?
46. There need be no desire or motive to pervert the course of justice for the offence to be committed. It can be committed even though a person has other considerations in mind or wishes to achieve what he believes to be the prevention of injustice: R v Kellett at 388, 392. The act need not be inherently dishonest or corrupt: R v Thomas (1979) QB 326 at 330-1.
47. The conclusion that there need be no desire to pervert the course of justice conforms to the policy underlying the offence. Although the degree of culpability may of course differ greatly from case to case, the course of justice may be diverted just as surely by a person who acts for what he believes are good motives as by a person who acts with corrupt motives. The requirements of the due administration of justice are surely to be determined by the law and not by reference to the views of the person alleged to have perverted the course of justice: see Miller, op cit at 150. Even where the motive is corrupt, the essential aim of a person may not be to bring about harm to anyone else, still less to procure an end result that is unjust, but to serve some interest of his own; the perversion of the course of justice may be merely an incident of his conduct yet, here again, the course of justice may be perverted just as surely as if that were his sole aim.
48. The reason why a person acts in a particular way may bear upon the intention with which an act is done but in this case a belief that it was ethically correct or even necessary to mislead the court cannot, in my view, affect an otherwise irresistible inference that there was an intention to pervert the course of justice. In this case I consider that the bona fide belief that the judge found the prosecution had not negated went to reason, desire or motive and not to intention, and I do not consider that such a belief would, in a case such as the present, be incompatible with an intention to pervert the course of justice.
49. Counsel for Mr Pilkinton submitted that although the situation had been described as, in effect, an ethical dilemma, the better view was that there was no ethical dilemma at all because the ethical rules bound Mr Pilkinton not to reveal that the person before the court was there under a false name and it was said that if an advocate complies with the rules of conduct he cannot be said to have done an act having an unlawful tendency to pervert the course of justice.
50. The ethical rules have been developed to promote the cause of justice within our adversarial system and to provide acceptable solutions to difficult questions that may arise, sometimes involving an apparent tension between the undoubted duty of an advocate not to mislead the court and his duty to his client. One of those rules is that counsel is under no duty in a criminal case to disclose facts known to him regarding his client's character or antecedents, and it is not part of his duty to advise a client to disclose a previous conviction.
51. Counsel for the appellant accepted that if an act was done in complete accordance with the accepted ethical obligations of an advocate it could not be said that there was an attempt to pervert the course of justice but he contended that such was not the case here. He said that attention should be directed not only to the situation that confronted Mr Pilkinton when he got to his feet to announce his appearance for a client charged under a false name, but at what had gone before.
52. Although it is easy to be wise after the event, it must be said that the difficult and demanding situation in which Mr Pilkinton found himself was in fact one of his own making. Consistently with his duties, no occasion need have arisen for him to mislead the court. Indeed, it would be astonishing if the ethical rules, properly understood, worked in such a way as to compel or permit counsel to take part in the deception of a court such as occurred in this case, with its inevitable consequences for the due administration of justice.
53. Confronted with the situation that emerged, Mr Pilkinton could have explained to his client that he could not mislead the court by appearing for her under a false name. He could have explained that she could give him instructions to reveal the situation to the prosecutor, in which case she would probably be charged with the offence of giving a false name, but that he could appear for her under her true name. If this course was not acceptable to his client then he could have withdrawn from the case. Although the case was a simple one (the entire hearing was recorded in a little over 2 pages of transcript) withdrawal from the case would have presented its own difficulties but it would be expected that a Magistrate, faced with the sudden withdrawal of counsel, would accede to an application by the defendant for an adjournment even if this were not consented to. Another possibility was for Mr Pilkinton to indicate to the Magistrate that he was not able to act in the matter and to ask (assuming those to have been his instructions) that the case be adjourned. This would not have involved any deception and need not have involved any disclosure of the nature of the problem. A Magistrate, alive to the difficulties that confront counsel from time to time, might be expected to have granted an adjournment, even if only for a short period. As it happened, however, this situation was never reached because instead of explaining the difficulty to his client and seeking a solution that would not have involved either misleading the court or any breach of the ethical rules, Mr Pilkinton took the attitude described by the judge as being embodied in the statement "It is up to the police to charge you." Having taken that attitude he committed himself to a course which resulted in him becoming a party to the court being misled.
54. I therefore conclude that the ethical obligations of an advocate did not compel Mr Pilkinton to adopt the course that he took and that a bona fide, though misguided, belief that the obligations compelled him to be a party to a deception of the court is not incompatible with an intent to pervert the course of justice and did not otherwise provide any answer to the charge.
55. I would therefore allow the appeal and restore the conviction. It was submitted by counsel for the appellant that if the Court did allow the appeal the matter should be remitted to the Supreme Court for consideration of the question of penalty. I agree that it is appropriate that the question of penalty should be considered by the Supreme Court and propose the Court should so order.
56. In accordance with the usual practice, the appellant did not seek the costs of the appeal in the event that the appeal was successful. It was submitted, however, that the costs of the challenge to the Court's jurisdiction should follow the outcome of the appeal. However, I think it would be inappropriate to treat the challenge to jurisdiction as a separate matter in this case and I therefore propose that there should be no order as to costs.
I have had the advantage of reading the judgment
prepared by the Chief Justice. I agree with the conclusion which his Honour has reached and with his reasons.
2. The appeal should be allowed, the conviction restored and the matter remitted to the Supreme Court of the Australian Capital Territory for consideration of the question of penalty.
I agree with the reasons for judgment of the Chief Justice, and with the orders he proposes.
2. The learned primary judge found that the prosecution had not established beyond reasonable doubt that Mr Pilkinton was not motivated in what he did by a bona fide belief in the ethical correctness of the course he took. That finding of fact was not, ultimately, the subject of challenge before the Full Court. That finding has some relevance to the question of penalty. It would also be relevant, in my opinion, in any assessment of his professional conduct.
# Re Frederick Gordon Hatty
Stuart Hearne Pilkinton \[1992\] FCA 226;
(1985) 158 CLR 596
(1985) 3 NSWLR 303
(1985) 4 NSWLR 42
(1992) 108 ALR 149
(1991) 28 FCR 352