REGINA v LOWE

LOWER COURT District Court JURISDICTION : LOWER COURT DC 01/11/0779 FILE NUMBER(S) : LOWER COURT Backhouse DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60046/03 DC 01/11/0779 HANDLEY JA SULLY J BUDDIN J

2 June 2003 CRIMINAL LAW - offences against the administration of justice

CRIMINAL LAW - whether offence against the administration of justice in Victoria punishable in New South Wales

STATUTORY INTERPRETATION - Interpretation Act 1987 s 12(1) - application of New South Wales statute to matters and things in and of New South Wales

The appellant was convicted on a charge under s 322(a) of the Crimes Act of threatening a witness in circumstances of aggravation within s 324. The relevant count alleged that the appellant in Sydney had threatened to cause a detriment to the complainant with intent to influence her, a witness in a judicial proceeding at Melbourne Magistrate's Court, to not attend as a witness. Section 324 authorised increased punishment or conduct within s 322(a) undertaken with intent to procure the acquittal of a person charged with a serious offence. The proceedings pending in the Melbourne Magistrate's Court were committal proceedings for a serious offence. The appellant was sentenced on the basis of an aggravated offence under s 324. He appealed against his conviction and sentence on the relevant count on the grounds that the indictment did not disclose an offence because the judicial proceedings were in Victoria, and committal proceedings did not fall within s 324.

HELD : (1) Section 322(a), read with s 12(1) of the Interpretation Act 1987, only applied to judicial proceedings in and of New South Wales; (2) Section 3A(1)(a) of the Crimes Act extended s 322(a) to judicial proceedings which were not "in" New South Wales, but did not affect the requirement that they be "of" New South Wales, which was not a "territorial consideration" within s 3A(1)(a); (3) The count did not disclose an offence because the judicial proceedings were "in and of" Victoria; (4) The count did not disclose conduct falling within s 324 because a favourable outcome for the accused in the proceedings in the Melbourne Magistrate's Court could not result in an acquittal.

(1) Appeal against conviction on Count 1 allowed, conviction and sentence on that count quashed, and judgment of acquittal entered;

(3) The appellant is re-sentenced on Counts 3 and 4 to 2 years' imprisonment to commence on 26 June 2002 and expire on 25 June 2004 with a non parole period of 9 months to commence on 26 June 2002 and expire on 25 March 2003;

(4) The sentences on Counts 2, 5 and 6 are confirmed;

(6) The Court directs the release of the appellant on parole on 15 June 2003.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60046/03 DC 01/11/0779 HANDLEY JA SULLY J BUDDIN J

Judgment 1 HANDLEY JA: This case is reminiscent of R v Kron (1995) 78 ACR 474, 475 where Gleeson CJ said: "The resolution of this appeal is unaffected by any consideration of merit. The matter turns entirely upon a technical point ...". 2 The appellant appeals against his convictions and sentences following a trial before Backhouse DCJ and a jury. The indictment contained six counts as follows: Count 1: Threatening a witness contrary to s 322(a) of the Crimes Act in circumstances of aggravation within s 324; Count 2: Supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act; Counts 3 and 4: Using a listening device to record conversation contrary to s 5(1)(b) of the Listening Devices Act; Counts 5 and 6: Publication of recording of a conversation contrary to s 7(1) of the Listening Devices Act. 3 The appellant was convicted on all counts and sentenced as follows: Count 1: 4 years' imprisonment to commence on 26 December 2001, with a non parole period of 2 years and 6 months, Count 2: A fixed term of 6 months' imprisonment to commence on 26 December 2001, Counts 3 and 4: On each count 2 years' imprisonment cumulative on the above to commence on 25 June 2004 with a non parole period of 9 months, Counts 5 and 6: A fixed term of 9 months to commence on 16 September 2002, when the appellant was sentenced. 4 The appeal raised a number of questions. Those relating to the appellant's conviction on Count 1 under s 322(a), and the finding that aggravation within s 324 had been established, were matters of substance. The Crown were not called upon in relation to the other questions, and it will be convenient to deal with these first.

Count 2 5 This related to events at the complainant's townhouse in Neutral Bay when she was with the appellant. He had gone outside for a short time and, unknown to the complainant, met a private enquiry agent. When he returned, he said to the complainant that he had "a present for us" (Ex B transcript of tape p 4) and produced a small quantity of cocaine, which he and the complainant sniffed. He claimed that the private enquiry agent had given him the cocaine (T 20/2/02 418-9). The appellant said in evidence that the private enquiry agent gave him the cocaine "for myself and [the complainant]" (T 420), but the Judge rejected the question. The private enquiry agent denied giving the appellant any cocaine. 6 The point taken by Mr Papayanni for the appellant was that there was evidence from which the jury could have found that the appellant received the cocaine for himself and the complainant. If so it became their joint property which was in their joint possession. He submitted that, if the jury so found, the appellant's conduct in sharing the cocaine with the complainant could not constitute a supply by him to her. He cited in support R v Carey (1990) 20 NSWLR 292, where re-delivery of drugs to their owner, that had been kept by another for safekeeping, was held not to constitute a supply. 7 The point is without substance and for many reasons. Rejection of the question meant that there was no evidence that the cocaine was given to the appellant for himself and the complainant. Even if the answer stood, delivery to the appellant as a gift to himself and the complainant made him the donor's agent to deliver and perfect the gift, but this authority was revocable. Neither property nor possession would pass until appropriation and delivery to the complainant. 8 Thus, the appellant's delivery of half the cocaine to the complainant was a supply, both within the extended definition in s 3 of the Drug Misuse and Trafficking Act, and within its ordinary meaning: Symes v Stewart (1920) 28 CLR 386, 388-9. Her Honour's summing-up on this question was cleared with both counsel (T s/up 26/2/02 40), and is not open to challenge.

Counts 3-6 9 Counts 3 and 4 charged the appellant with using a listening device to record a private conversation, to which he was a party, contrary to s 5(1) of the Listening Devices Act, and counts 5 and 6 charged him with communicating to another person the record of a private conversation made by the use of a listening device, contrary to s 7(1). The prohibitions in ss 5(1) and 7(1) are absolute (s 5(1) "shall not use or cause to be used"; s 7(1) "shall not ... communicate"), but there are exceptions in s 5(2) which include para (d) "the unintentional hearing of a private conversation by means of a listening device". There is no corresponding exception in s 7(2). 10 The appellant knew that the video recorder was secretly filming the activities of himself and the complainant, but said that he did not know that it was also recording their conversation. In Miller v TCN Channel 9 (1988) 36 ACR 92, heard in the summary jurisdiction of the Supreme Court, Finlay J said (97): "... the legislative intent, as effected by s 5 in the context of the whole Act, is to establish the offence of using a listening device to record a private conversation on proof of the ingredients in sub section (1) of the Act. The defendant can avoid liability [by] establishing that the provision does not apply because of the existence of any of the limited set of circumstances in sub pars (2) or (3)". 11 He had earlier held (96) that the defendant had the onus of establishing the statutory exceptions on the balance of probabilities. 12 Thus the appellant's defence to counts 3 and 4 required him to establish that the hearing of the conversation by means of a listening device was unintentional. There was no corresponding statutory defence in s 7, but the trial was conducted on the basis that the defence of an honest and reasonable mistake of fact was available to the accused in accordance with Proudman v Dayman (1941) 67 CLR 536, and the jury were directed accordingly. 13 After the jury had retired to consider their verdict, they asked the Judge the following question (T s/up 22/2/02 108): "Could you please clarify whether the accused must knowingly use a listening device to be convicted. In other words, if we accept that the accused did not know the hidden camera was recording sound as well as vision, must we acquit?" 14 The Judge, with the concurrence of counsel, directed the jury that in the circumstances supposed they would be bound to acquit (T 117). 15 Counsel for the appellant complained that the Judge's answer to the jury's question had reversed the normal onus of proof on the Crown. This was true, but that onus had been reversed by the statute, as held in Miller v TCN Channel 9. This decision was not challenged during the trial, or before this Court, and in any event is clearly correct. The appellant's challenge to his conviction on counts 3-6 therefore fails.

Count 1 16 Section 322(a) of the Crimes Act relevantly provides: "A person who threatens to do or cause ... any ... detriment to any person: (a) intending to influence a person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness ...; is liable to penal servitude for 10 years". 17 Section 324 relevantly provides: "A person who commits an offence against section ... 322 ... intending to procure the conviction or acquittal of any person of any serious offence is liable to penal servitude for 14 years". 18 The appellant, by arrangement with a private enquiry agent, secretly filmed the complainant and himself while engaged in sexual activity and then threatened to publish the film on the internet unless she agreed that she would not appear as a witness in committal proceedings for rape pending in Victoria against another person. Count 1 was as follows: "On the 5th and 6th days of July 2000, at Sydney in the State of New South Wales, did threaten to cause a detriment to [the complainant] with intent to influence [her], a witness in a judicial proceeding namely R v Millichamp at Melbourne Magistrate's Court, to not attend as a witness". 19 The point taken by Mr Papayanni, which was not taken at the trial, was that the indictment did not disclose an offence under s 322 because the judicial proceedings were in and of another jurisdiction. Judicial proceedings for this purpose include committal proceedings (s 311(1)). 20 His point in relation to s 324, which again was not taken at the trial, was that although the appellant intended to cause a miscarriage of justice in the committal proceedings, this could not result in an acquittal. Accordingly it had not been open to the jury, as a matter of law, to find that the appellant was guilty of the circumstances of aggravation in s 324. 21 The most favourable result for a person faced with committal proceedings for an indictable offence is that the Magistrate will refuse to commit for trial. Such an order is not an acquittal and Mr Papayanni's submission on s 324 must be upheld. Whatever the accused's actual intention may have been it could not, as a matter of law, have been an intention to procure the acquittal of the person charged in Victoria. 22 The appellant might have been charged under s 319 with doing an act intending to pervert the course of justice (see also s 312), which carried the same penalty as s 324. This section may have been available although the course of justice was in Victoria. Subject to that question the jury, having found the appellant guilty of the aggravated offence under s 324, must have been satisfied of the facts necessary to establish an offence under s 319. However, he could not have been convicted of that offence without an amendment of the indictment at the trial. 23 The point taken in relation to Count 1 depends on the construction of Part 7 of the Crimes Act: "Public Justice Offences" read with the Interpretation Act 1987 (s 12) and s 3A of the Crimes Act. The latter section, which deals with the territorial application of the State's criminal law, was enacted in 1992. It has since been replaced by provisions which have further extended the territorial application of the criminal law. 24 Section 12(1) (which in substance re-enacted s 17 of the 1897 Interpretation Act) provides: "(1) In any Act ... : (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales". 25 Section 3A, so far as directly relevant, provides: "(1) An offence against the law of the State is committed if: (a) all elements necessary to constitute the offence (disregarding territorial considerations) exist; and (b) a territorial nexus exists between the State and at least one element of the offence. (2) A territorial nexus exists between the State and an element of an offence if: (a) the element is or includes an event occurring in the State; or (b) the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State ... (10) In this section: "event" means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge, or any other state of mind); ...". 26 The cases of Ward v R (1980) 142 CLR 308 and Thompson v R (1989) 169 CLR 1, which considered the scope of State and Territorial criminal laws where elements of the crime of murder had occurred or may have occurred in more than one jurisdiction, moved the Standing Committee of Attorneys General to action. In time this led to the enactment of s 3A and to corresponding legislative changes in the Australian Capital Territory, South Australia and Tasmania. Section 3A(1), and its equivalent in South Australia, have been considered in cases involving the common law crime of conspiracy. However in no reported case to which we were referred has the Court relied on s 3A or its equivalent to sustain a conviction. 27 In R v Catanzariti (1995) 65 SASR 201 charges of conspiracy to cultivate marijuana in the Northern Territory were quashed because they failed to disclose an offence against the law of South Australia. A conspiracy to commit a crime in another jurisdiction is not a common law offence, and s 5C of the Criminal Law Consolidation Act, the equivalent of s 3A, made no difference. At 215 Matheson J said: "In my opinion section 5C is not an offence-creating section. It is only concerned with the determination of whether a South Australian offence has been committed. It does not extend the jurisdiction of this Court to include offences against the law of ... another State or Territory. The word 'offence' must mean a South Australian offence". 28 Similarly in R v Isaac (1996) 87 A Crim R 513 this Court held that a charge of conspiracy to commit a crime in the Australian Capital Territory did not disclose an offence known to the law of New South Wales. Hunt CJ at CL said (525): "Section 3A resolves the problem where not all of the elements of a crime took place within this State by making the offence constituted by all the elements an offence against the law of this State provided that all of those elements existed and that there is a territorial nexus ... with this State. The section does not create an offence if none previously existed. In the present case, the agreement to commit the robbery in the Australian Capital Territory existed, and all of the events necessary to establish that agreement occurred within this State. There was no event which occurred outside this State to which s 3A could apply. Even the intention to carry out the robbery ... existed in this State ... If the agreement formed inside this State to commit an offence in the Australian Capital Territory did not constitute an offence known to the law of this State ... then section 3A did not constitute it an offence ... Section 3A is irrelevant to the present case". 29 In Lipohar v R (1999) 200 CLR 485 the accused were charged in South Australia with a conspiracy to defraud, entered into outside that State, where the intended victim was within the State. The High Court, by majority, held that such a conspiracy was a common law offence punishable according to the law of South Australia. Section 5C was raised in argument, but the Court did not find it necessary to deal with it (499, 519, 545, 559-60, 573). 30 Thus the reported cases on s 3A and its equivalent are of little assistance. However, they demonstrate that the section does not solve all difficulties in this area, and does not create new offences. 31 Section 3A(1) requires the elements of each offence to be identified. Where the offence was created by statute, the relevant section must be interpreted in accordance with s 12 before s 3A can properly be applied. 32 Section 322(a) refers to "any judicial proceeding", a witness, the giving or withholding of evidence, attendance as a witness, and attendance pursuant to a subpoena or summons for production. Para (b) refers to a juror and any judicial proceeding, para (c) refers to a judicial officer, and para (d) refers to a public justice official and any judicial proceeding. 33 Section 311(1), also in Part 7 of the Act, contains interrelated definitions of judicial officer, judicial proceeding and judicial tribunal. Part 7 contains sections creating related offences dealing with corruption of witnesses and jurors (s 321), influencing a witness or juror (s 323), obstructing a witness or juror (s 325), reprisals against judges, witnesses or jurors (s 326), and ss 327-339 which deal with perjury and false swearing. Section 334(e) makes the latter offences applicable to an arbitration governed by foreign law and s 335 makes them applicable to evidence taken in New South Wales on commission. Section 338 requires the approval of the Director of Public Prosecutions, the Attorney General, or the relevant Court, for a prosecution for perjury. The overwhelming implication from Part 7 as a whole is that it exists to protect the administration of justice in and of New South Wales. 34 The definitions of judicial officer, judicial proceeding and judicial tribunal in s 311, which together define the words "any judicial proceeding" in s 322(a), must be read and interpreted in accordance with s 12(1)(a). This means that "judicial officer" in s 311 means a judicial officer "in and for" New South Wales, judicial tribunal means a judicial tribunal "in and for" New South Wales, and a judicial proceeding means a judicial proceeding "in and of" New South Wales. 35 In Macleod v Attorney General (NSW) [1891] AC 455, 458 Lord Halsbury LC said: "All crime is local", and in Thompson v The Queen (1989) 169 CLR 1, 25 Brennan J said: "When the language of an offence-defining or an offence-creating statute is quite general, the statute is construed as embracing conduct in apparent contravention of its terms only if an act is done or an omission is made or a result occurs within the domestic territory. Whether it is the locality of the act or of the omission or of the result which brings conduct within the ambit of the statute is a question of construction, but there must be some local element of the offence". 36 Section 12 and its predecessor have been considered in a number of criminal cases, although none are directly in point. Grannall v C. Geo Kelloway & Sons Pty Ltd (1955) 93 CLR 36 involved the prosecution of a farm produce agent in New South Wales who charged his client in Tasmania more than the maximum permitted commission. In a joint judgment Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ considered whether the evidence disclosed an offence within New South Wales. The Court said (52-3): "This question depends on the meaning of the word 'charge' in s 23(1)(a) and upon the application to that meaning of the rule that all offences are local and territorial. That rule is reinforced by s 17 of the Interpretation Act of 1897 of New South Wales, which provides that all references to localities, jurisdictions and other matters and things shall, unless the contrary intention appears, be taken to relate to such localities, jurisdictions and other matters and things in and of New South Wales. It is not a question of the jurisdiction of the forum. Nor is it altogether a question of the territorial power of the legislature. For doubtless the acts or conduct of the defendant company in the present case include elements sufficiently connected with New South Wales to enable the legislature of that State to deal with them. But just as the words in s 23(1)(a) 'sue for' and 'recover' must be understood as 'sue for or recover in New South Wales' so must the word 'charged' be interpreted as 'charged within New South Wales'." 37 Reference may also be made to Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78, 81, 83, 84. 38 Since all the "events" necessary to constitute the offence under s 332(a) in this case occurred in New South Wales, a territorial nexus existed between the State and elements of the offence which amply satisfied the requirements of s 3A(1)(b). The difficulty arises under s 3A(1)(a), which requires that "all elements necessary to constitute the offence (disregarding territorial considerations)" must exist. 39 The question is whether the reference in s 322(a) to "a person called or to be called as a witness in any judicial proceeding", read, with the definitions in s 311(1) and s 12, as meaning any judicial proceeding in and of New South Wales, imports a "territorial consideration". 40 The reference in s 12(1)(a) to officers "in" the State, and in para (b) to an "other matter or thing", "in" the State, read into the definitions in s 311(1), include both a judicial officer and a judicial tribunal "in" the State, and a judicial proceeding "in" the State. These are territorial considerations for the purposes of s 3A(1)(a). 41 Thus s 322(a), as extended by s 3A(1), will protect a judicial officer, a judicial tribunal, and a judicial proceeding "of" New South Wales that was not "in" New South Wales. The Compensation Court and the Dust Diseases Tribunal frequently sit outside the State and from time to time Judges of the Supreme Court take evidence on commission or hear cases outside the State. Thus recently Mr Justice Whealy sat in Dublin to complete the hearing of an action for damages involving an Irish tourist who had been injured on the north coast of New South Wales. Conduct of the kind proscribed by s 322(a), which occurred outside the State in relation to such proceedings, would be within the section as extended by s 3A(1). 42 The references in s 12(1)(a) and (b) to "of" New South Wales raise a different question. Federal Courts and tribunals sitting in New South Wales may be "in" the State, but they are not "of" the State. If a Judge of a Victorian, Queensland or South Australian court sat within New South Wales, the proceedings would again be "in" but not "of" the State. 43 The requirement in s 12(1)(a) and (b) that the officer, matter or thing be "of" the State is not a "territorial consideration" for the purposes of s 3A(1)(a). The requirement characterises the officer, tribunal or proceeding, wherever the officer may be, wherever the tribunal may sit, and wherever the proceeding may take place. 44 The point may be illustrated by s 338, which requires the consent of the Director of Public Prosecutions, Attorney General or the Court for a perjury prosecution. This refers to the Director of Public Prosecutions or Attorney General "in and for" New South Wales, and to a court "in and of" the State. The Director of Public Prosecutions or the Attorney General could grant consent, although they were not in the State at the time, and the Victorian Director of Public Prosecutions or Attorney General could not grant consent even though they were within the State. 45 Regretfully therefore I must hold that Count 1 did not disclose an offence under the law of New South Wales because the judicial proceedings were "in and of" Victoria. I say regretfully because the conduct of the appellant fully merited criminal punishment and the sentence imposed by the trial Judge for Count 1 was not excessive. 46 Whether the relevant conduct of the appellant was an offence under the law of Victoria, and whether the nexus with Victoria would permit a prosecution for that offence in Victoria based on acts committed in New South Wales, is not a matter for this Court. The appellant would not be entitled to plead autrefois convict or autrefois acquit in answer to any such charge. 47 Mr Papayanni submitted that the appellant would be entitled to a new trial on the remaining counts if the conviction on count 1 were to be quashed because the evidence led in relation to that count was highly prejudicial and would not have been admitted on the trial of the remaining counts by themselves. There is no substance in this submission. The practice of this Court, the High Court and other Courts of Criminal Appeal in this country, is not to order a new trial on other counts merely because a conviction on one or more counts is set aside on appeal. In any event the evidence relevant to Count 1 would have been admissible on Counts 3-6.

Appeal on sentence 48 The appellant contended that if the conviction and sentence on Count 1 were to be quashed the sentences imposed for Counts 2-6 should also be quashed and lesser sentences substituted because the sentences imposed were heavier than they would have been in the absence of the criminality evidenced by the conviction on Count 1. A related submission was that the evidence of the appellant's purpose in taking the video and audio tapes, and the use he later made of them, would not have been admissible on Counts 3-6. 49 There is no substance in these submissions. The evidence admitted on Count 1 would have been admissible in the Crown case on Counts 3-6 to negative defences under s 5(2)(d) of the Listening Devices Act, and of honest and reasonable mistake. They would also have been admissible to establish the genesis and purpose of these offences and their serious nature. 50 The trial Judge was bound in sentencing the appellant to apply the totality principle and did so. Because of this the appellant may well have received lighter sentences on Counts 3-6 than he would have received if he had not been sentenced on Count 1 as well. There are no grounds for reducing the other sentences, but the dates of some must be adjusted. 51 I therefore propose the following orders: (1) Appeal against conviction on Count 1 allowed, conviction and sentence on that count quashed, and judgment of acquittal entered;

(3) The appellant is re-sentenced on Counts 3 and 4 to 2 years' imprisonment to commence on 26 June 2002 and expire on 25 June 2004 with a non parole period of 9 months to commence on 26 June 2002 and expire on 25 March 2003;

(4) The sentences on Counts 2, 5 and 6 are confirmed;

(6) The Court directs the release of the appellant on parole on 15 June 2003. 52 SULLY J: I agree with Handley JA. 53 BUDDIN J: I agree with Handley JA.

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