The King v Wright [2025] NTCCA 11

s 280, s 408(1), s 408(2), s 408(3), s 408(5), s 408(6)

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CR 27; DZY (a pseudonym v Trustees of the Christian Brothers [2025] HCA 16; McCarthy v The State of Western Australia [2022] WASCA 82; Meissner v R (1995) 184 CLR 132; Police v Laughton [2012] SASC 102;

R v Beckett (2015) 256 CLR 205; R v McGee [2008] SASC 328; R v Rogerson (1992) 174 CLR 268, referred to

Crown: Office of the Director of Public Prosecutions

The King v Wright [2025] NTCCA 11

• [1] On 28 July 2025, Matthew Nicholas Wright (the accused) was arraigned before Blow AJ on three counts of attempting to pervert the course of justice contrary to s 109 of Schedule 1 to the Criminal Code Act 1983 (NT) (the Criminal Code). He pleaded not guilty to all three counts.
• [2] His jury trial commenced on 5 August 2025. After the close of the Crown's case on 25 August 2025, he applied for directed verdicts of acquittal on the ground that, as a matter of law, he had no case to answer on any of the three counts.
• [3] Blow AJ dismissed those applications on 26 August 2025. In response, the accused applied under s 408(1) of the Criminal Code to reserve the following questions of law concerning counts 2 and 3 for the consideration of the Court of Criminal Appeal:
  1. On the proper construction of s109 of the Criminal Code, do the words "attempts, in any way not specially defined by this Code" preclude a conviction for conduct that amounts to an attempt to procure the commission of an offence contrary to s 99 (fabricating evidence) or s102 (destroying evidence) of the Code?
  2. If the answer to the above question is "yes", and on the assumption that the conduct alleged by the Crown in opening submissions to the jury in relation to counts 2 and 3 on the indictment is proved beyond reasonable doubt, does the conduct alleged in respect of those counts constitute an attempt?
• [4] On 29 August 2025 the jury returned verdicts of guilty on counts 1 and 2 but it was unable to reach a unanimous verdict on count 3. The questions of law set out above therefore remain extant. To answer them it is convenient, first, to set out the factual circumstances in which they arose, to briefly outline the Crown's case as it was put to the jury at the accused's trial and to deal with a preliminary procedural matter.

• [5] Wild Harvest Northern Territory Pty Ltd (WHNT) held permits and government approvals to collect crocodile eggs from wild crocodile nests. The eggs were then on-sold to crocodile farmers who raised crocodiles for produce.
• [6] WHNT entered into a contract with Helibrook Pty Ltd (Helibrook) to supply it with the necessary egg-collection services. The accused was the beneficial owner, director and chief executive officer of Helibrook.
• [7] Helibrook used helicopter aircraft to perform its egg collection services. To that end, it held an "Air Operator's Certificate" which permitted it to conduct commercial flight operations. Under that certification, the accused was designated as the "Chief Pilot" and the "Head of Flight Operations". As such, he had obligations to ensure that the helicopter aircraft operated by Helibrook were maintained and airworthy; to monitor operational standards; to supervise and train pilots; and to ensure that pilot flight times were accurately recorded.
• [8] In those capacities the accused was responsible for ensuring that his pilots kept an official document called the "maintenance release" by which individual and cumulative flight hours were recorded for the purpose of ensuring the proper maintenance of Helibrook's aircraft. That document was updated by his pilots after every flight for each aircraft. If properly maintained, the flight hours so documented would correlate to the hours recorded on a device called a "Hobbs meter". That device automatically recorded the cumulative number of hours that a helicopter had been in use, similar to an odometer on a car. The pilots were also required to maintain personal pilot logbooks by which they would log their individual flight hours for each aircraft they flew.
• [9] One of the helicopters that Helibrook used for its commercial egg collecting services was a R44 Raven II bearing call-sign "VHF-IDW' ("IDW"). The accused became the registered owner of IDW in December 2020. By that time, 1,594 hours had been recorded on its Hobbs meter. Pursuant to the accused's maintenance obligations, it was necessary to service IDW every 50 hours. In addition, once IDW had accumulated 2,200 hours, it would be necessary to either retire it, or to perform a major overhaul on it to ensure that it remained airworthy. Such a major overhaul would usually cost between $400,000 and $460,000.
• [10] On 28 February 2022, Mr Sebastian Robinson and Mr Christopher Wilson were performing egg-collection services on behalf of Helibrook. Mr Robinson was piloting IDW and Mr Wilson was hanging from a harness below the helicopter to collect eggs. IDW crashed, causing catastrophic injuries to Mr Wilson. He died at the scene. Mr Robinson survived but he suffered serious injuries as a result of which he was rendered paraplegic.

• [11] It was the Crown's case at the accused's trial that he had a practice of disconnecting the Hobbs meter on IDW to under-record its flight hours so as to delay its maintenance requirements, to reduce the associated costs and to delay the need to either retire it, or to conduct the required major overhaul once it reached 2,200 flight hours.
• [12] To implement this practice, the Crown alleged that the accused showed his pilots how to disconnect and reconnect the Hobbs meter on their aircraft. As well, in order to avoid any discrepancies arising, he directed them not to record their hours in the maintenance release document, nor in their pilot logbook when the Hobbs meter was disconnected.
• [13] At the time of the crash, the Hobbs meter on IDW displayed 2,070 hours, that is 130 hours short of its major overhaul. It was the Crown's case that IDW had in fact been used for many more hours than that. To assist to establish that fact, it adduced evidence of a covertly recorded conversation during which the accused admitted that IDW had been "overflown" by "a couple of hundred, and I think 10 percent" or "about 200" hours.
• [14] The accused was informed of the crash and attended the scene by helicopter soon after it occurred. The Crown alleged that shortly after arriving at the scene, he and two of his associates went to the wreck of IDW, opened its console, and checked to ascertain whether its Hobbs meter was connected. The Crown alleged that the accused did this because he was concerned that, if the meter was disconnected, in line with the direction he had given to his pilots, that would be revealed during any subsequent crash investigation.
• [15] As already mentioned, the two questions reserved for this Court concern counts 2 and 3. On both those counts it was the Crown's case that the accused engaged in the conduct described above in order to deflect the investigative authorities from discovering that he had under-recorded the hours that IDW had been in operation and to avoid any criminal charges being laid against him, including possible charges for being responsible for the crash.
• [16] The particular conduct it relied on with respect to count 2 was that, on 11 March 2022 and again on 13 March 2022, the accused visited Mr Robinson in hospital and asked him to make false entries into the maintenance release document relating to Mr Robinson's helicopter - "ZXZ" - to correspond with egg-collecting days for which invoices had been rendered by Helibrook. The Crown alleged that he did this so that work actually done by IDW but not properly recorded could be falsely logged to ZXZ. The Crown alleged that he provided documents to Mr Robinson to assist him to go about making those false entries, but Mr Robinson declined. As mentioned already, the jury found the accused guilty on this count.
• [17] As for count 3, the Crown relied on the following conduct: that on 22 September 2022 and 25 September 2022, in two covertly recorded conversations with his friend Mr Jai Tomlinson, the accused instructed Mr Tomlinson to destroy the original maintenance release document for IDW so that it could not be provided to the investigative authorities. As also mentioned already, the jury could not reach a unanimous verdict on this count.

• [18] The preliminary procedural issue arose from an email that the accused's lawyers sent to the Court on the afternoon of 3 October 2025. In part, that email stated: "Having now considered the Crown's position, the appellant has instructed that he no longer seeks to press the two questions reserved and, as such, his instructions are to withdraw each of those questions from consideration and the hearing vacated." The words "the Crown's position" referred to the position that it had outlined in the written submissions that it filed in this Court as required by the programming orders made on 2 September 2025. Further, by the same orders, the hearing that the accused sought to have vacated was fixed to commence in Darwin at 10am on 7 October 2025.
• [19] The preliminary procedural issue was whether, by that late stage, and in those circumstances, the accused had the capacity to effect a withdrawal of the questions reserved for consideration by this Court. We concluded that he did not. The accused's lawyer was informed accordingly on 6 October 2025. At the same time the parties were notified that the Court would determine those questions on the papers without the need for oral submissions. To explain why we concluded that such a withdrawal was not within the accused's capacity, it is necessary, first, to record some other aspects of the procedural history to this proceeding.
• [20] As already mentioned, on the afternoon of 29 August 2025 the jury returned verdicts of guilty on counts 1 and 2 but it was unable to reach a unanimous decision on count 3. Because the accused had, by that time, already requested that the present questions be reserved for consideration by this Court, Blow AJ adjourned counts 1 and 2 to 6 October 2025 for sentencing. As well, his Honour extended the accused's bail for him to appear on that date. After the hearing of this matter was listed for 7 October 2025, the 6 October sentencing hearing was adjourned to 12 December 2025. This approach is consistent with s 408(2) of the Criminal Code which provides:

If the accused person is found guilty and a question of law has been so reserved before judgment, the court of trial may either pronounce judgment on the finding of guilt and respite execution of the judgment or postpone the judgment until the question has been considered and decided and may either commit the person found guilty into the custody of the Commissioner of Correctional Services or admit him to bail on recognizance, with or without sureties, and in such sum as the court of trial thinks fit, conditioned to appear at such time and place as the court of trial may direct to receive judgment.

• [21] Meanwhile, on 2 September 2025, in addition to listing this matter for hearing on 7 October 2025 and ordering an exchange of written submissions, the parties were ordered to file an agreed draft stated case by the close of business on 5 September 2025. That draft was filed, as ordered, and Blow AJ signed the final version of it on 9 September 2025. This process is consistent with s 408(3) of the Criminal Code which provides: "The judge of the court of trial is thereupon required to state, in a case signed by him, the question of law so reserved with the special circumstances upon which it arose and the case is to be transmitted to the Court." Also relevant to this issue are sections 408 (5) and (6) of the Criminal Code which provide:

(5) Any question so reserved is to be heard and determined as an appeal by the Court and, in the discretion of the Court, may be heard and determined before the trial has concluded.

(6) The Court may send the case back to be amended or restated if it thinks it necessary so to do.

• [22] It was against this procedural background that we decided to proceed to determine the questions reserved for the consideration of this Court. We did so for the following reasons. First, it is apparent from the provisions of

s 408 of the Criminal Code mentioned above that, once a trial judge has duly transmitted a stated case in accordance with those provisions, this Court has the sole power to determine how that matter is to be disposed of. Secondly, the questions reserved by this stated case involve serious issues concerning the construction and operation of several provisions of the Criminal Code that directly affect the administration of justice. Thirdly, those issues are plainly not hypothetical. The accused has been found guilty on one of the counts the subject of these questions (count 2) and it remains possible that the Crown may seek to retry the accused on the other count (count 3). Fourthly, the particular issues raised by these questions have not been determined by an appellate court in this country.

• [23] We turn then to those questions. It is convenient to begin by restating them. They are:
  1. On the proper construction of s109 of the Criminal Code do the words "attempts, in any way not specially defined by this Code" preclude a conviction for conduct that amounts to an attempt to procure the commission of an offence contrary to s 99 (fabricating evidence) or s102 (destroying evidence) of the Code?
  2. If the answer to the above question is "yes", and on the assumption that the conduct alleged by the Crown in opening submissions to the jury in relation to counts 2 and 3 on the indictment is proved beyond reasonable doubt, does the conduct alleged in respect of those counts constitute an attempt?

• [24] The sections of the Criminal Code mentioned in these questions are, in order, ss 109, 99 and 102. They provide:

Any person who attempts, in any way not specially defined by this Code, to obstruct, prevent, pervert or defeat the course of justice is guilty of an offence and is liable to imprisonment for 15 years.

Any person who, with intent to mislead in any judicial proceedings:

(a) fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury; or

(b) knowingly makes use of such fabricated evidence,

Any person who, knowing that any book, document, tape recording, photograph or other thing of any kind is or may be required in evidence in judicial proceedings, destroys it or renders it illegible or undecipherable or incapable of identification with intent thereby to prevent it from being used in evidence, is guilty of an offence and is liable to imprisonment for 3 years.

• [25] Also relevant are sections 277 and 280 of the Criminal Code relating to "attempts to commit offences" and "attempts to procure commission of criminal offences", respectively. Those sections provide:

Any person who attempts to commit an offence is guilty of an offence.

Any person who attempts to procure another to do any act, make any omission or cause any event, whether in the Territory or elsewhere, of such a nature that, if the act were done or the omission were made or the event were caused, an offence would thereby be committed under the laws of the Territory or the laws in force in the place where the act, omission or event is proposed to be done, made or caused whether by himself or by that other person, is guilty of an offence of the same kind and is liable to the same punishment as if he had himself attempted to do the same act, make the same omission or cause the same event in the Territory.

• [26] As already mentioned, the trial Judge addressed the questions of law raised with respect to counts 2 and 3 during the course of determining the accused's applications for directed verdicts of acquittal on all three counts. His Honour provided reasons for rejecting those applications on 28 August 2025. Relevantly for present purposes, his Honour began those reasons by summarising the accused's submissions on the meaning of the phrase in

s 109 of the Criminal Code: "attempts, in any way not specially defined by this Code". It should be noted that, throughout his reasons, his Honour adopted the expression "the limiting words" when referring to those words. For convenience, we will do likewise in these reasons.

• [27] Next, in the course of reviewing the relevant provisions of the Criminal Code as set out above, his Honour noted the presence, or absence, of similar provisions in other jurisdictions. However, with respect to s 109 of the Criminal Code, he noted that the Northern Territory was in a unique position. In particular he said: "the identical words used to appear in s 143 of Western Australia's Criminal Code, in the equivalent provision of the Territory's s 109. They were copied from the equivalent provision in the Queensland Criminal Code. Amendments to the Western Australian and Queensland codes have been made to remove those limiting words from their provisions, but they remain in s 109 of the Northern Territory's Code."
• [28] Thereafter his Honour noted the dearth of authority on the limiting words. Specifically, he said: "To the best of my knowledge, the precise meaning of [them] has never been determined by any court. They have never appeared in Tasmania's Criminal Code, they do not appear in the Canadian Criminal Code, or in the Crimes Act (1961) of New Zealand."
• [29] Nonetheless, his Honour went on to review three authorities that he thought may be of assistance. One dealt with the identical provision, albeit in its amended form, in the Western Australia Criminal Code (McCarthy v The State of Western Australia (McCarthy[1])) and the other two dealt with a similar provision in the South Australia Criminal Law Consolidation Act (Police v Laughton[2] and R v McGee (McGee[3])). Ultimately, however, his Honour did not find any of these decisions to be helpful.
• [30] Finally, his Honour set out his conclusions as to what the limiting words in

(a) The words "specially defined" have to be given a meaning. I accept that they were intended to fill a gap and to cover types of conduct not specifically prohibited elsewhere in the [C]ode.

(b) The critical question is whether they exten[d] to cover an attempt to procure another to commit an offence that was criminalised by s 280(1). It is significant that that provision is a general provision.

(c) The Griffith Code and s 109 did not say, "In a way not otherwise prohibited by this [C]ode". The words, "specially defined" are narrower - specific types of conduct that may tend to pervert the course of justice are described in ss 99 and 102 and other sections.

(d) I think those sections are better characterised as describing, rather than defining, what is prohibited. The adver[b] "specially" must have been intended to modify or confine the meaning of the word "described".

(e) In my view, fabricating evidence is something specially defined or specifically described in s 99. Similarly, destroying evidence is something that is specially defined or specifically described in s 102, but attempting to procure another person to fabricate evidence is not something specially defined or specifically described anywhere. It is criminalised by a combination of a specific provision, s 99, and some general provisions, ss 280(1) and 277. It is not something specially described.

(f) The same can be said for similar reasons of attempting to procure another person to destroy evidence. They are both possible ways of attempting to pervert the course of justice, but not ways that are specially defined or specifically described.

• [31] Based on this reasoning his Honour disposed of the legal questions that the accused raised with respect to counts 2 and 3 in the following terms:

".... As matter of law, the way alleged in relation to each count is one not specially defined by the Code and so for those reasons I rejected the submission in relation to s 109."

• [32] In its written submissions on question 1, the Crown's primary position was that the limiting words were not intended to operate as words of limitation. Instead, it contended, they were intended to convey that, even if an attempt to pervert the course of justice was not specifically defined in the Criminal Code, it was nonetheless captured by s 109. At the same time, it contended they also made it plain that a person should not be found guilty of a specially defined example of that offence if the elements wholly overlapped.
• [33] In the alternative, the Crown contended that the learned trial judge's construction of those words was correct. On this alternative approach it contended that they were directed to specific examples of attempts to pervert the course of justice that have been "specially defined by this Code". It described those examples as "standalone offences" requiring proof that the accused intended to pervert the course of justice (or something equivalent) as one of the constituent elements. It gave as examples ss 99, 100(a), 101, 102, and 103 of the Code. It contended that, so viewed, an offence contrary to s 280(1) - which by its terms has nothing to do with attempting to pervert the course of justice - was not a "specially defined" attempt for the purposes of s 109. It also adopted and relied on the trial Judge's observation that

s 109 does not use the words "in any way not otherwise prohibited by this Code".

• [34] It is not possible to summarise the accused's contentions on this question because it is unclear which of the Crown's positions set out above his lawyer was referring to in his email of 3 October 2025.[4] Further, because of the conclusion we have reached with respect to question 1, it is unnecessary to summarise the parties' contentions with respect to question 2.

1. It is apt to begin with the well-established tenet that text, context and purpose are the critical factors affecting the construction of statutory provisions such as those set out above. As the High Court explained recently in DZY (a pseudonym) v Trustees of The Christian Brothers (DZY)[5] "...the language which has actually been used in the text, in light of its context and purpose, is the surest guide to legislative intention. One reason that the context and purpose of a provision are important to its proper construction is that an object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute...".[6]

• [36] Turning, first, to the purpose of the limiting words, we respectfully agree with the following observations of the Western Australian Court of Appeal in McCarthy[7] concerning s 143 of the Western Australia Criminal Code which, in its original form, was identical to s 109 above:

"It is apparent from the text and context of the provisions of ch XVI, considered as a whole, that the words 'in any way not specially defined in this Code' in s 143, as originally enacted, were included to avoid the creation of multiple offences with overlapping elements and different maximum penalties."

• [37] The equivalent part of the NT Criminal Code to Ch XVI of the Western Australia Code is Division 5 of Part IV. That division appears under the heading "Offences relating to the administration of justice". It is worth noting, in passing, that s 109's location at the end of that Division supports the conclusion that it operates as a "catchall" provision concerning offences of that kind. More importantly that Division contains 18 sections, many of which extend to several subsections, which together prescribe the elements for an array of offences relating to the administration of justice and fix a range of maximum penalties in respect thereof.
• [38] Those elements involve various acts or omissions, and/or circumstances in which they occur; and/or the mental state of the alleged offender concerned. By way of examples:[8]

acts or omissions: "..corruptly asks, receives or obtains, or agrees or attempts to receive or obtain.." (s 93(1)(a)); "... corruptly gives, confers or procures, or promises or offers to confer or to procure or attempt to procure..." (s 93(1)(b)); "...attempts by menaces of any kind, or benefits or promises of benefit of any kind, or by other corrupt means to influence any person..." (s 95(a)); "...threatens to do any injury or cause any detriment of any kind to any person..." (s 95 (b)); "...accepts any benefit or promise of benefit on account of anything to be done by him as a juror..." (s 95(c)); and "... gives, confers or procures or promises or offers to give or confer or to procure or attempt to procure..." (s 100 (a)).

circumstances: "...being the holder of judicial office.." (s 93(1)(a)); "... as a juror in any judicial proceedings..." (s 95(a), (b) and (c)); and "... any person called or to be called as a witness in any judicial proceedings..." (s 100 (a)).

mental state: "...knowingly gives false testimony.." (s 96); "..knowingly makes or exhibits any false statement representation or writing..." (s 101); "... knowing that any book, document, tape recording, photograph or other thing of any kind is or may be required..." (s 102); "... any person whom he knows has been duly summons to attend as a witness..." (s 103) and "...knowing the advertisement to be false in any material particular..." (s 108).

• [39] Furthermore, the maximum penalties prescribed for the offences defined in Division 5 range from 15 years imprisonment in s 109, to 14 years imprisonment e.g. s 93: judicial corruption, to 7 years imprisonment e.g.

s 99: fabricating evidence; to 3 years imprisonment e.g. s 102: destroying evidence, to 2 years imprisonment e.g. s 107: bringing fictitious action on penal statute.[9]

• [40] It follows that, in the context of the Criminal Code, Division 5 contains the most obvious source of the "overlapping elements and different maximum penalties" with which the purpose described above is concerned. That raises the question: how does s 109 operate to avoid that overlapping?
• [41] Answering that question requires a consideration of the text of s 109. We begin with the word "attempts". When it relates to conduct that affects the administration of justice, that word has been held to have a distinct meaning. It refers to the doing of some act which has a tendency, and is intended, to pervert the course of justice.[10] Indeed in R v Beckett,[11] Nettle J went so far as to argue that it comprised an element of the offence under the equivalent provision in the NSW Crimes Act.[12] And while the majority did not adopt that characterisation, their Honours did say "that it is clear that, on the trial of a count charging an attempt to pervert the course of justice under the common law or under those statutory provisions which mirror the common law, the prosecution must prove the objective tendency of the accused's conduct to pervert the course of justice."[13]
• [42] In our view s 109 of the Criminal Code uses the word "attempts" in this way. It follows that the words "in any way not specially defined by this Code" operate to except from the reach of s 109 conduct that has such a tendency as "specially defined" elsewhere in the Criminal Code. As noted already, the 17 sections of Division 5 that precede s 109 do exactly that.
• [43] In this respect it is also worth adding that each usage of the word "defined" elsewhere in the Criminal Code refers to either a particular section of the Code e.g s 47: "a crime defined by section 45 or 46"; and s 188(ja): "is assaulted by choking etc... as defined in s 186AA",[14] or to another Act e.g.

s 28: " as defined in s 4 of the Correctional Services Act 2014",[15] or to a regulation e.g s 187(2): "as defined in reg 8 of the Health Practitioners Regulations National Law".[16] This indicates that it is intended to perform a similar role in s 109.

• [44] With these textual considerations in mind, we turn to the particular sections of the Criminal Code mentioned in the questions reserved for the consideration of this Court. They are s 99 (fabricating evidence) and s 102 (destroying evidence).[17] Dealing first with s 99, it will be noted that it does not use the word "attempts". Nor, relevantly, does it use the words procure, or procuring. Instead, it proscribes conduct which, on its face, clearly has a tendency to pervert the course of justice. Specifically, and relevantly for present purposes, fabricating evidence with an intent to mislead in judicial proceedings.
• [45] However, the accused did not fall within the terms of that section because, as was noted earlier,[18] he acted with an intent to deflect the investigative authorities from laying criminal charges against him, not with intent to mislead in judicial proceedings. Since that is not a way of attempting to pervert the course of justice that is "specially defined" by s 99, nor, for that matter, any other provision of the Criminal Code, it is not excluded from the reach of s 109. Put differently, there is no overlap between the elements of the offence prescribed by s 99 and the "catchall" provisions of s 109.
• [46] The same reasoning applies to s 102. As with s 99, it does not use the word "attempts" but it does use the word "procures", albeit not in any relevant sense. More importantly, while there are two aspects to the mental element of the offence of destroying evidence - knowing that the thing may be used in evidence; and acting with intent to prevent it being so used - the use concerned is confined to "judicial proceedings". Since, as explained above, the accused acted with a different intent, his conduct does not involve a way of attempting to pervert the course of justice that is "specially defined" by

s 102. Accordingly, it is not excluded from the reach of s 109.

• [47] Finally, we would add that we do not consider this conclusion can be avoided by reliance on s 277 and/or 280.[19] That is so because, as the trial Judge explained, correctly in our view, attempting to procure another person to either fabricate or destroy evidence: "...is not something specially defined or specifically described anywhere [in the Code]. It is criminalised by a combination of a specific provision....and some general provisions,

ss 280(1) and 277. It is not something specially described".[20]

• [48] In summary, as the trial Judge correctly found, the limiting words in s 109 do not preclude a conviction for the conduct with which Mr Wright was charged for two reasons:

(a) The words "specially defined by this Code" in s 109 refer to offences against sections of the Code which define or describe specific conduct which has an objective tendency to pervert the course of justice. These are presently contained in Division 5 of Part IV of the Code. It does not refer to offences against general provisions such as ss 277 or 280.

(b) In any event, the attempts with which Mr Wright was charged, if successful, would not have amounted to offences against either s 99 or s 102 as the particulars of the charges alleged that the conduct was done for the purpose of deflecting investigative authorities so as to avoid criminal charges being laid against him. It was not alleged to have been done "with intent to mislead in any judicial proceeding"

[s 99] or "with intent to prevent [the thing] from being used in evidence" "knowing that [it] is or may be required in evidence in judicial proceedings" [s 102].

• [49] Before concluding, we would add the following observation. If any of these conclusions lead to the uncertainty or fragmentation postulated by the Crown in its submissions (and we do not see why they would) we consider the remedy lies with the Legislature. In this respect it is notable that the Legislatures in the Code States of Western Australia and Queensland have both acted to remove the limiting words from the equivalent provisions to

• [50] For these reasons we answer the questions reserved for consideration by this Court as follows:

[1] [2022] WASCA 82.

[2] [2012] SASC 102.

[3] [2008] SASC 328.

[5] [2025] HCA 16.

1. [6] DZY at [23]. See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

[7] At [111] per Buss P, Mazza and Mitchell JJA.

[8] This list is not intended to be representative or exhaustive.

[9] Section 104 has been excluded - it prescribes a penalty of seven years imprisonment or three years imprisonment depending on the nature of the offence concerned.

[10] See Meissner v R (1995) 184 CLR 132 at 140 to 141 per Brennan, Toohey and McHugh JJ and R v Rogerson (1992) 174 CLR 268 at 282 per Brennan and Toohey JJ's and at 297 per McHugh J.

[11] (2015) 256 CLR 305, [2015] HCA 38.

[13] Ibid at [43] per French CJ, Kiefel, Bell and Keane JJ.

[14] See also ss 48, 51(2), 55(2) and 341.