Regina v OM

Court of Criminal Appeal (NSW)|2011-05-04|Before: Whealy JA, McCallum J, Schmidt J, Spigelman CJ, Kirby JJ, Allsop P, Simpson J

Judgment 1WHEALY JA: This is an appeal brought by the Director of Public Prosecutions (" the DPP ") against a decision of his Honour Judge Finnane of the District Court on 31 st January 2011. The DPP appeals pursuant to section 5C of the Criminal Appeal Act 1912 (NSW) or, in the alternative, pursuant to section 5F(2) of the Criminal Appeal Act .

Background 2The respondent, OM, is charged with the following three offences: Count 1 : That on 28 th December 2008 at Wolli Creek in New South Wales, the respondent did intentionally damage property, namely a motor vehicle, the property of Easter Star Pty Ltd. Count 2 : That between 5 th January and 1 st February 2009, the respondent caused Mohit Sundarjee to provide false and misleading information to police with intent to pervert the course of justice. Count 3 : That between 5 th January and 5 th July 2009, the respondent caused Farah Ullah to provide false and misleading information to police with intent to pervert the course of justice. 3Count 1 is brought under section 195(1)(a) of the Crimes Act 1900 (NSW) , and carries a maximum penalty of 5 years imprisonment. Counts 2 and 3 are brought pursuant to section 319 of the Crimes Act , carrying a maximum penalty of 14 years imprisonment.

Facts alleged 4The charges stem, the Crown contends, from an incident on 28 th December 2008. The respondent was a passenger in a car driven by Ms Farah Ullah which unexpectedly pulled out in front of a taxi driven by Mr Ma. Mr Ma sounded his horn. When the two cars subsequently stopped at traffic lights, the respondent got out of the car, approached the driver's side window of the taxi and struck the glass, causing it to shatter. The respondent then ran back to the car, which drove off. A passenger in the taxi, Mr Mudford, managed to record the registration of the vehicle. Police were called, and took photographs of the incident. 5Subsequent investigations led the police to Mr Sana Ullah, the registered owner of the vehicle. Mr Ullah nominated his daughter, Ms Ullah, as the driver on the day in question. Mr Ullah then informed his daughter of his contact with the police, who in turn spoke to the respondent. According to the summary of facts by the primary judge, Ms Ullah phoned the respondent and said, "What is this about the police asking something about malicious damage to a taxi?" He responded, "let's not say anything over the phone, we have to meet up". Later that day, the respondent met with Ms Ullah (and possibly Mr Sundajee, although Ms Ullah says in her statement given to police on 31 st May 2010 at [14] that she cannot be sure) during which the following conversation took place (statement on 31 st May 2010 at [15]):- Ms Ullah: What am I supposed to do, I'm supposed to go to the police station, what am I supposed to say? Respondent: Just say that Mohit was in the car with you. Ms Ullah: Why would you want to get Mohit involved, he's not going to take the fall for you. Why don't you just pay for the guy's window and it will be like $200. Respondent: No, it's already past that, the police are involved. If we all stick to the same story, this will just go away. 6Ms Ullah spoke to the police on 19 th January 2009 and told them that she was indeed driving the car on the day in question, however she was with Mr Sundarjee. She told the police that she was unaware of any damage to Mr Ma's vehicle. Police again contacted Ms Ullah on 4 th June 2009. She then telephoned the respondent and asked him what to do, to which he told her not to say anything, and (if she does) that she cannot remember anything. Ms Ullah followed these instructions when again spoken to by police. 7On 31 st May 2010, Mr Ullah provided a statement to the police in which she admitted that she was with the respondent on 28 th December 2008, that the respondent did smash the taxi window, and that he had asked her to make a false statement to police. Ms Ullah later pleaded guilty to concealing a serious indictable offence (under section 316 Crimes Act ) and was given a 12-month bond under section 10 Crimes (Sentencing Procedure) Act 1999 before the Local Court on 1 st July 2010. 8Mr Sundarjee, when questioned by police, said that, in mid January 2009, the respondent contacted him and said, "do me a favour, if the Police ring you tell them you were with Farah on December 28 th from 2pm to 5pm at Coogee Beach". When asked why by Mr Sundarjee, the respondent replied, "I accidentally smashed a taxi driver's window because he was looking at Farah". When contacted by police that same day, Mr Sundarjee gave the requested account. Mr Sundarjee subsequently told the respondent of his conversation with the police, to which he replied, "it's ok, if we stick together the problem should go away". Again on 16 th April 2009, Mr Sundarjee maintained the same account when spoken to by police. 9On 8 th May 2009 Mr Sundarjee met the investigating police and provided a statement in which he admitted that he was not with Ms Ullah on 28 th December 2008, and had been encouraged by the respondent to provide the false accounts to the police in January and April 2009. The respondent was charged with these offences on 5 th October 2009.

Proceedings before Finnane DCJ on 31 st January 2011 10The trial was listed before the primary judge for hearing on 31 st January 2011. Mr Daleo appeared for the Crown, Mr Hanna for the respondent. Submissions had been previously prepared by both parties, with those of the respondent headed "Application for advanced ruling pursuant to section 192 of the Evidence Act 1995 ". The thrust of the respondent's argument was that the decision of the Court of Criminal Appeal (comprising Bell JA, RS Hulme and Latham JJ) in Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31 had clarified the scope of section 319 of the Crimes Act (headed "general offence of perverting the course of justice"), with the result that the conduct of the respondent could not sustain charges two and three in the indictment. The final paragraphs of the written submissions were as follows:- 25. The Crown does not assert that the accused's alleged conduct was performed subsequent to the institution of curial proceedings. Nor is there any evidence in the Crown case to support any such contention. 26. In the light of the decision of the Court of Criminal Appeal in Einfeld v R , it is submitted that acts allegedly carried out by the accused fall outside the scope of the offence under s 319 of the Crimes Act. As a consequence, it is submitted that the Crown evidence, taken at its highest, is incapable of establishing a prima facie case against the accused. 27. For the above reasons, it is respectfully submitted that the Court should make a ruling under s 192A of the Evidence Act that the evidence proposed to be adduced at trial of the accused is not capable of establishing a prima facie [case] against him. 11The appellant also provided written submissions in the court below. These submissions expressly proceeded on the basis that the application was one to quash counts two and three in the indictment. Their final paragraph read:- The Crown submits that the alleged conduct of the Accused, as established on the evidence before the Court, is capable of constituting an act done with the intention to pervert the course of justice. Accordingly the Crown submits that the Defence application to quash counts 2 and 3 on the indictment should be refused. 12The proceedings before the primary judge began with the following exchange:- CROWN PROSECUTOR: Can I indicate, your Honour, this trial is listed for trial today. Mr Hanna put me on notice last week that he intended to make a preliminary application to the Court in relation to two of the three counts on the indictment which are charges of pervert the course of justice. As I understand, Mr Hanna is making an application that you will make an order that the Crown can't establish a prima facie case on counts 2 and 3. HIS HONOUR: So, you're hearing no evidence at all, just a preliminary matter? 13The respondent was then indicted in terms of the subject indictment. After the respondent had pleaded not guilty to the three charges, the trial judge proceeded to hear the application. When asked what the basis of the application was, Mr Hanna said:- HANNA: Yes. Effectively, what the defence says is that the Common Law prior to 1990 and the insertion of Part 7 of the Crimes Act; the offence of perverting the course of justice and the offence of attempting to pervert the course of justice were Common Law offences. The leading decision to consider the scope of those offences in the context of police investigations is that of Rogerson. HIS HONOUR: Yes? HANNA: It's not submitted, your Honour, that, had the statutory provisions not been created and that if the accused was charged with the now abolished Common Law offences, that he would have this argument available. Essentially what is now submitted, that in the light of the amendments, and, as considered most notably in the decision of Einfeld, that the scope of conduct which falls within the charge under s 319 has not simply been replicated (my emphasis) . And it has been, to a certain extent, by the decision of Einfeld; it is now submitted that where an accused person, or no persons have been arrested or charged and where it is merely a police investigation, or the conduct concerns the - HIS HONOUR: Can I have a look at the indictment, please? Thank you HANNA: -- where the alleged conduct merely pertains to police investigations or the activities of government bodies prior to the commencement of any curial proceedings or any actions which would amount to the commencement of the course of justice in criminal proceedings; that would be the charging of an accused person that falls outside the scope of s 319 . [my emphasis] ... HIS HONOUR: Why is not trying to induce someone to give them false information perversion of the course of justice? HANNA: Well, it will essentially turn on your Honour's interpretation on the decision of Einfeld, it's the defence position that, in order for the CCA to be [sic] process of reasoning, where they ended in holding that the activities of government bodies are not included, is that police investigations are also - no longer fall within the scope of that section where no curial proceedings on foot. That's the defence position. 14Following this was a discussion of the decision of Einfeld . The Crown then submitted:- So, as I understand it, Einfeld has said the administration of the law does not extend the statutory offence to something broader than it was under the Common Law, that the expression 'administration of law' has the same meaning as the phrase 'the course of justice' as explained in Rogerson. In Rogerson, the High Court said that whilst ordinary police investigations do not form part of the course of justice, where there is a circumstance where an offender has, in the contemplation that curial proceedings are possible or imminent for a particular offence and he does something to thwart them, that is just as much an act - as McHugh J said - 15Following this submission, however, his Honour said:- Right, well, I don't think you have read the decision, or if you have read it, you have not understood the decision of the Court of Criminal Appeal. Because what the Court of Criminal Appeal says is that the course of proceedings and the administration of law are precisely the same, and for it to be an act to pervert the course of justice, it has to be something done in relation to Court proceedings. There's nothing here done in relation to any Court proceedings; this is something done, if at all, at a preliminary stage in some police investigation into a summary matter... 16A discussion of the first charge in the indictment then took place and his Honour appeared to draw oral submissions to a close:- HIS HONOUR: Well, there are two or three courses open; I can get a jury, which will be tomorrow morning, and I can wait until you finish presenting all your evidence and then direct a verdict. Or, I think I'm being asked to quash two counts on the indictment. CROWN PROSECUTOR: As I understand-- HIS HONOUR: I can quash two counts on the indictment, leaving the other one to be dealt with by the jury tomorrow morning. CROWN PROSECUTOR: Well, your Honour, the Crown's submissions would be if you were to make the order to quash the two counts on the indictment, that the matter would be adjourned; the malicious damage be adjourned. I would anticipate the Director would want to consider his position in relation to an appeal. 17Mr Hanna then reiterated his submissions in relation to the decision of Einfeld , and his Honour delivered a 7 page ex-tempore judgment.

Decision of the primary judge 18His Honour found in favour of the respondent's argument. His Honour's decision began:- Application has been made to me pursuant to s 192A of the Evidence Act that I should give a ruling or make a finding in relation to a question before evidence is adduced in the proceedings. Essentially what I am being asked to do is quash two counts on indictment. 19His Honour next discussed the insertion of section 319 of the Crimes Act into the legislation and the facts of this case as he saw them, before turning to an analysis of the Court of Criminal Appeal's decision in Einfeld . Following this analysis, his Honour said, "In my opinion the effect of the decision of [ Einfeld ] is that this conduct, if proved, could not amount to being done with the intent to pervert the course of justice. That is my ruling". The basis for this ruling appears to be from extracts of the judgment cited by his Honour, namely the Court's decision at paragraphs [87], [89], [90] and [99]. His Honour also referred to [98] and [99]. I will return to examine the correctness or otherwise of his Honour's analysis of the decision of Einfeld later.

Appeal to the Court of Criminal Appeal 20When the parties returned before his Honour the following day, Ms Daleo informed the court that the DPP had decided to lodge an appeal in relation to the ruling. The primary judge accordingly adjourned the matter for 3 months, allowing time for this appeal to be heard. 21The appellant now appeals, firstly, under section 5C of the Criminal Appeal Act which provides:- Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. 22Mr Babb SC, who appeared for the appellant, submitted that, despite the respondent couching his application before the primary judge as a request under section 192A of the Evidence Act , the end result was, in effect, the quashing of counts 2 and 3 in the indictment, namely the attempt to pervert the course of justice charges. It is useful to set out the terms of section 192A of the Evidence Act :- 192A Advance rulings and findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 23Mr Babb highlighted the fact that the application before his Honour, as framed, and in terms of section 192A, raised no question concerning the admissibility or use of evidence, the operation of the Evidence Act or any other law in relation to the evidence proposed to be adduced. Nor did it relate to the giving of leave, permission, or a direction under section 192. On the point of jurisdiction, Mr Babb referred to decisions establishing that, when characterising an order, it is necessary to look to its substance rather than its form (namely, R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304; Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46 at [54] - [59]). In this regard, the appellant emphasised what was said by the primary judge in his judgment (extracted above): "essentially what I am being asked to do is to quash two counts on an indictment". 24In the alternative, the appellant based his appeal on section 5F(2) Criminal Appeal Act :- 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 , and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. 25Senior Counsel argued that, if it were not, in effect, a quashing order, his Honour's ruling might properly be seen as a permanent stay of the proceedings on counts 2 and 3. As such, it would plainly be an interlocutory order permitting appellate intervention. 26The appellant then raised two related grounds of appeal, first, that his Honour erred in finding that the evidence sought to be adduced by the Crown was not capable of establishing a prima facie case of doing an act with intent to pervert the course of justice, and secondly that, as a consequence, his Honour erred in ordering, in effect, that counts 2 and 3 in the indictment be quashed. At the heart of this appeal, it will be seen, is the primary Crown allegation that his Honour misunderstood the Court of Criminal Appeal's decision in Einfeld . 27The appellant argued that Einfeld goes no further than holding that section 319 of the Crimes Act does not extend to conduct that is intended to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any law of the State. It did not state, as found by the primary judge, that conduct which obstructs or deflects a police investigation can never constitute a charge under section 319 unless curial proceedings are on foot. To this extent, Mr Babb argued Einfeld recognised the continued applicability of the decision of the High Court in The Queen v Rogerson [1992] HCA 25; CLR 268. Mr Babb pointed to the facts alleged in the present case, particularly the conversation between the respondent and Ms Ullah, quoted in paragraph [5] above. These were plainly capable, senior counsel argued, of establishing, on a prima facie basis, the offences alleged by the Crown. 28Mr Campbell SC, for the respondent, placed his main emphasis on the jurisdictional point, submitting that this Court had no power under sections 5C or 5F(2) of the Criminal Appeal Act to allow the appeal. Mr Campbell argued that neither the quashing of two counts in the indictment, nor a permanent stay of proceedings, had ever been sought by the respondent. Nor did the primary judge make rulings or orders to that effect. All that was sought, it was submitted, was, in effect, an advance advisory ruling under section 192 of the Evidence Act from the trial judge as to the weight or effect of the evidence proposed to be adduced by the Prosecutor. To this end, the primary judge's conclusion did not have the necessary element of finality. There was nothing to prevent the Crown from proceeding to trial with the three counts still in the indictment. There was nothing to prevent the Crown from attempting to persuade the primary judge to depart from his earlier conclusion (the subject of this appeal). Senior Counsel submitted that, had his Honour remained of this view, he would have directed a verdict of acquittal on counts 2 and 3 at the conclusion of the Crown case. If that had happened, Mr Campbell submitted, no avenue of appeal would have been open to the Crown in relation to the directed verdict. (Although not necessary for the decision in this case, this last submission appears to overlook the provisions of section 107(2) Crimes (Appeal and Review) Act 2001 (NSW)). 29As to the merits of the primary judge's decision, Mr Campbell argued that, rather than holding that conduct which interferes with a police investigation where no court proceedings are on foot can never constitute a charge under section 319, what his Honour did was to hold that the evidence of the Crown in this case, if proved, could not meet what was held by the High Court in Rogerson to constitute "the course of justice" when curial proceedings were yet to be instituted. 30It was submitted that, for a charge to be available against the respondent, the Crown had to prove that the police investigation had progressed to the extent to give rise to a particular course of justice. It had to prove that the respondent did, at the time of his acts, know of such an investigation, and that it might lead to criminal proceedings, and that he thereupon undertook his course of action knowing those proceedings would be perverted as a result. Senior Counsel argued that the acts of the appellant went no further than deflecting any police inquiry that may or may not arise - as opposed to intending to pervert the course of justice. The actions of the appellant, it was submitted, occurred well before the statements of Ms Ullah or Mr Sundarjee were obtained, and when the only information available to police was the registration number of the vehicle alleged to be involved in the incident with Mr Ma. In that regard, the Crown could not establish that Mr Mohammed had in contemplation any proceedings being brought against him.

Scope of section 319 31It is clear, in my opinion, that the primary judge was plainly in error in his understanding of the Court of Criminal Appeal's decision in Einfeld . This error led his Honour to believe that section 319 had altered, in a significant respect, the accepted view of the scope of the common law offence of doing an act intending to pervert the course of justice. It did not. His Honour's mistaken view in this regard was the sole basis of the ruling he made. 32In Einfeld , the Court of Criminal Appeal examined, in essence, two interrelated matters that arose for consideration. The first was the issue of whether the trial judge (James J) had erred in refusing to quash counts 1 to 5 in the indictment. These were counts alleging offences in terms of section 319 of the Crimes Act ("a person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years"). In each case, the evidence relied on by the Crown related to the submission of a false statutory declaration to the Infringement Processing Bureau, arising out of a camera-detected traffic offence. James J had placed some reliance on section 312 of the Crimes Act , which dealt with the meaning of "pervert the course of justice" in these terms:- A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law (my emphasis). 33The point at issue before James J had been whether the phrase "the administration of the law" extended the scope of the offence beyond that as settled, for example, in the High Court's decision in Rogerson . There had been an earlier decision of the Court of Criminal Appeal ( R v Subramanian [2002] NSWCCA 372), which had suggested that an accused's conduct in swearing a statutory declaration directed to the Infringement Processing Bureau was sufficient to ground an offence under section 319. 34James J considered that the decision in Subramanian supported the view that the sending of a false statutory declaration to the Infringement Processing Bureau concerning the identity of the driver of a vehicle at the time of the offence was capable of amounting to an offence under section 319 by perverting "the application [sic: the administration] of the law". His Honour concluded, after analysis, that "the making and sending of each statutory declaration to the Infringement Processing Bureau would be capable of amounting to perverting the course of justice, in the sense of perverting the administration of the law". 35The second related matter considered by the Court of Criminal Appeal in Einfeld , arising out of its focus on the proper interpretation of section 319, was the broader question as to whether section 312 extended the scope of the expression "the course of justice" as explained in Rogerson , or left it essentially as it was. 36The court ultimately determined that James J had been in error in the determination he made. The court allowed the appeal and set aside James J's orders dismissing the relief claimed in the Notice of Motion before him. As a consequence, the court quashed counts 1 to 5 in the indictment. In so doing, it accepted the submissions made on behalf of Mr Einfeld that the evidence the Crown proposed to lead "was not capable of establishing a prima facie case against him". The issue raised by this submission had been identified by the Court of Criminal Appeal (at [21]) as:- Whether the offence of perverting the course of justice under section 319, by reason of the inclusion of the expression "the administration of the law" in section 312, extends to conduct that is intended in any way to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any of the laws of this State. 37On the broader issue, the court determined (at [99]):- In our opinion, the expression "the administration of the law" in s 312 is to be understood in the sense that we take Sir Samuel Griffiths to have used it in R v Nicholls and in the way it has subsequently been used in this area of legal discourse, which is the administration of the civil and criminal law by courts and tribunals. Understood in this sense, the expression differs little, if at all, from the expression "the course of justice" as explained in Rogerson . In reaching the conclusion it did, the Court of Criminal Appeal had regard to the history of the circumstances leading to the codification in New South Wales of Part 7 of the Crimes Act (dealing with "public justice" offences). It had regard also to the explanatory material before Parliament. It examined the situation in other states and territories where similar legislation had come into force. It applied the presumption against extending the scope of a penal statute, unless there were clear language to support it. It noted the perhaps unintended consequences that would flow from accepting the extension of the scope of the section, in that it would be likely to apply to all public officials (not just police). It gave by way of illustration the making of a false statement to a bus inspector, where a pass had been lost. 38In the result, the court determined not to give the words "administration of justice" their literal meaning, noting that, to do so, would not fit "harmoniously" within the scheme of the legislation and, in particular, Part 7, where offences against public justice were carefully ranked in order of seriousness. In the course of its decision, the court indicated that it would not follow the obiter statements in Subramanian , principally because those remarks did not represent conclusions reached after full debate and deliberation. 39Given the clear conclusion in Einfeld , it is necessary next to examine the scope of the offence (perverting the course of justice) as it had been explained in Rogerson . In particular, it is necessary to consider the situation where a person is charged with the offence (as the respondent was here) involving the deflection of a police investigation prior to the institution of proceedings. It was that situation that Finnane DCJ thought could not substantiate the offence created by section 319. 40Rogerson was a case where three men had been charged with conspiring to pervert the course of justice. The charge arose out of an alleged agreement to fabricate evidence which had as its object the frustration or diversion of a police investigation into the possible commission of a crime. The court held, firstly, that investigations by officers of the law of actual or suspected crimes are not part of the course of justice for the purpose of the common law offences concerned with perverting the course of justice. Mason CJ, in a passage that is referred to by the court in Einfeld at [52], put the matter in the following terms, at 276: It has been suggested that "the course of justice" and "the administration of justice" include police investigations as such. True it is that some judicial comments are capable of being understood as lending support to that bald proposition. These comments have been made for the most part in cases in which a person has been convicted of an attempt to pervert the course of justice by misleading police in their investigation of a crime or suspected crime. But police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings. In James v Robinson Kitto, Taylor, Menzies and Owen JJ stated: "The proposition that proceedings are pending in criminal cases after a person has been arrested and charged is firmly established." I therefore agree with the rejection by the Full Court of the Supreme Court of South Australia in R v Todd of the proposition that the course of justice under consideration includes the investigation by the police of facts for the purpose of ascertaining whether or not a crime has been committed. In this respect, it is important to note that the expression "the course of justice" is synonymous with the expression "the administration of justice". In no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions (where appropriate) and assist in bringing prosecutions... 41Mason CJ rejected secondly the view that the course of justice begins to run as soon as a crime is committed. He then stated at 277 - 288:- The fact that police investigation stands outside the concept of the course of justice does not mean that, in appropriate circumstances, interference with a police investigation does not constitute an attempt or a conspiracy to pervert the course of justice. It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed ( Regina v Murphy (1985) 158 CLR 596 at 609). That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible . In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency . So, in Kalick v R (1920) 55 DLR 104, at 109, it did not matter whether the police officer intended to institute a prosecution; it was sufficient that, being apprehensive of a prosecution, the accused gave a bribe to prevent it. Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced (my emphasis). Accordingly, I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice (my emphasis). 42Brennan and Toohey JJ said (at 280):- 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. An act which effects any such impairment is the actus reus of a perversion of the course of justice. 43At 283, Brennan and Toohey JJ said: Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. An act which has a tendency to deflect the police from prosecuting a criminal offence... or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice. It impairs the court's capacity to do justice in the actual circumstances of the case (my emphasis). 44Later, their Honour's added:- The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice (my emphasis). 45Deane J, at 293 - 294, said:- 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 ... The closeness of that connection 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 (my emphasis). 46McHugh J also agreed that police investigations were not part of "the course of justice" for the purpose of the offence of attempting to pervert the course of justice (at 301 and 302). McHugh J stated that, for the purpose of the offence of perverting the course of justice, the course of justice does not commence in criminal proceedings until the laying on an information against, or the arrest of, an accused person (at 303, 304). His Honour added at 304 - 305:- Nevertheless, in some circumstances, a false statement made to a police officer in the course of the investigation of an actual, alleged or suspected crime can constitute the offence of attempting to pervert the course of justice even though no judicial proceedings have been commenced. As this court said in Murphy , "an attempt made to pervert the course of justice at a time when no curial proceedings of any kind have been instituted is an offence". Because the course of justice includes proposed as well as existing judicial proceedings, a false statement made to a police officer will constitute the offence if it had a tendency to pervert the course of judicial proceedings and if it was made with the intention to do so. Although a statement made before the commencement of judicial proceedings cannot amount to a contempt of those proceedings, such a statement will be an attempt to pervert the course of justice if the relevant intent and tendency are present. 47At 307, McHugh J expressed a qualification to the statement he had made:- Unless the prosecution proves that the course of justice as a continuing process has been perverted or proves facts which show that an identifiable person has committed an identifiable crime, it is difficult to see how the prosecution can prove that the conduct of the accused interfered with the course of justice... Leaving aside the continuous process cases, proof of the offence will require evidence that the accused has engaged in conduct which prevented or might have prevented the prosecution of a particular offence or that the accused has engaged in conduct which had the tendency to change or did change evidence which would otherwise have been put before a judicial tribunal or which had the tendency to prevent or did prevent evidence from being put before that tribunal. If the evidence does not establish what proceedings would have been commenced or what proceedings were interfered with, the conduct of the accused cannot be shown to have the tendency to pervert the course of justice... It is not enough that the conduct of the accused has misled an investigation into whether a person has committed any offence against the law.

Did the primary judge fall into error? 48It is quite clear from the foregoing analysis that the scope of the offence created by section 319 does not differ, in relevant respects, from the scope of the former common law offence. The relevant parameters are those identified in Rogerson's case. This means that the submissions made on behalf of the respondent to Finnane DCJ were incorrect. Importantly, it means that the primary judge, with all respect, was led into error. The Court of Criminal Appeal decision in Einfeld reinforced the proposition that the scope of the offence under section 319, although it had not been enlarged beyond the common law concept, neither had it been diminished. At [89], the Court said:- "The administration of the law" does not readily describe the role of the police in the investigation of crime. Expressions such as the "enforcement of the law" or the "investigation of crime" would seem more apt if it were Parliament's intention to include within the offence of perverting the course of justice conduct involving the obstruction or perversion of a police investigation, in circumstances in which the offender did not have curial proceedings in contemplation ...(my emphasis) 49In other words, if the Crown, in the present matter, could establish that the respondent's actions were intended to deflect the police from prosecuting him for the criminal offence that he had allegedly committed, or from adducing evidence of the true facts relating to the alleged offence, the prosecution was clearly capable of being maintained. The fact that no judicial proceedings had been commenced at the time when the respondent spoke to Ms Ullah and Mr Sundarjee, did not preclude the finding of a prima facie case. Nor would it preclude a subsequent determination by a jury that, subject to proof of all the elements of the offence beyond reasonable doubt, that each offence had been committed. Had his Honour quashed the two counts in the indictment, as he indicated he was contemplating doing, there is no doubt that this court would have been entitled to make an order pursuant to section 5C of the Criminal Appeal Act , setting the orders aside. Similarly, had his Honour made an order staying the proceedings, there is no doubt that this court would have been entitled to make an order pursuant to section 5F(2), setting the stay order aside.

Resolution - second issue: does the court have jurisdiction to intervene? 50Mr Campbell SC, as I have indicated, argued that since the primary judge did not make any order in the matter, but simply gave a ruling, this court has no jurisdiction to intervene. Regrettably, I have come to the conclusion that this submission must be accepted. It is regrettable because a clear error has been made which cannot be corrected by this court. 51There is, of course, little doubt that the primary judge thought he had the power to quash the counts in the indictment, and indicated, indeed, that that is the course he might well take. While it might be thought that the practical effect of what his Honour did was to prevent the Crown from proceeding on counts 2 and 3 in the indictment, no order was made to that effect. There is ample authority for the proposition that, in determining the nature of an order that has been made (for the purposes of an examination under section 5F) the court will look to the character and effect of the decision ( R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [9] - [14] per Spigelman CJ, Dunford and Kirby JJ agreeing; R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 303 - 304 per Gleeson CJ; see also Dao v R [2011] NSWCCA 63 per Spigelman CJ at [1] - [6], Allsop P at [74] - [76] and Simpson J at [121] - [126]. Dao reflects the proposition that in an application under section 5F, substance and not mere form should prevail: Cheiko v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]). There can be little doubt that his Honour had in mind refusing to permit the Crown to seek to make a case against the respondent based on his erroneous view of the scope of section 319. However, the fact remains that his Honour did not make such an order and, in my view, it is not appropriate, in the present situation, to infer or conclude by implication that such an order was made. Mr Campbell SC submitted that his Honour's remarks, both in the ruling and during address, to the effect that he regarded the application as one to quash two counts in the indictment were no more than "ruminations". They were, in my view, probably more than that, but the fact is that his Honour did not proceed to make an order either quashing the counts in the indictment or staying the proceedings. The fact is that, for the purposes of section 5F, there must be an order to be scrutinised. Here, that was simply not the case. 52I should also add that what his Honour gave was not a ruling on evidence, nor was it a ruling under or in aid of section 192A of the Evidence Act 1995 . Mr Campbell's submissions in that regard cannot be accepted. The application brought on behalf of the respondent was misconceived in procedural terms. If the proposal were to quash the two counts in the indictment, recourse should have been had to section 17 of the Criminal Procedure Act 1986 . If a stay were to be obtained, the procedure under section 192A was not appropriate in any sense.

Conclusion 53The position that results is this: the primary judge has made a clear and substantial error in relation to the scope of section 319 of the Crimes Act . The evidence sought to be relied on by the Crown at trial was plainly capable of constituting a prima facie case against the respondent in relation to counts 2 and 3 in the indictment. It would be necessary, however, for the Crown to prove beyond reasonable doubt in the trial that, at the time he spoke to the two witnesses, the respondent contemplated the possibility of the commencement of the proceedings against him for the offence that he had allegedly committed. It would be necessary for the Crown to prove that the respondent, being apprehensive of a prosecution for the offence, took the steps he did to prevent that prosecution being brought against him. In that regard, it would be necessary for the Crown to prove beyond reasonable doubt that these steps were taken by the respondent with the intent to achieve the result of deflecting the police from prosecuting the offence or from adducing evidence of the true facts in the proceedings. The evidence I have recited was clearly capable of satisfying each of those matters at a prima facie level. 54However, because the primary judge did not proceed to make any orders in the matter, it is not possible for this court to intervene, and the appeal must be dismissed. That, of course, is not the end of the matter. Because no orders were made by the trial judge, the indictment stands, and is completely unaltered in its terms. Despite his Honour's "ruling", there is nothing to stop the prosecution from presenting once again the indictment before his Honour, or for the first time before another judge in the District Court. Were that course to be followed, it would be anticipated that the District Court would take into account the clear observations I have made as to the correct scope of the offence provided for in section 319 of the Crimes Act 1900 . 55I propose that the appeal be dismissed. 56MCCALLUM J: I agree with Whealy JA. 57SCHMIDT J: I agree with Whealy JA.

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