R v BECKETT

Court:
Full High Court

MEDIA NEUTRAL CITATION: [2015] HCA 38

Nettle J

48. I have had the advantage of reading in draft the reasons for judgment of the plurality and I agree with their Honours, substantially for the reasons they give, that the appeal should be allowed.

49. My only substantive disagreement is as to the elements of the offence created by s 319 of the Crimes Act 1900 (NSW). Their Honours have concluded that the offence is comprised of but two elements, namely: (1) that the accused did the act or made the omission alleged; and (2) that, at the time of so acting or omitting to act, it was the accused ' s intention in any way to obstruct, prevent, pervert, or defeat the course of justice. In my view, there is a third element: (3) that the act or omission had a tendency to pervert the course of justice.

50. To explain why that is so, it is necessary to go back to the common law offences from which s 319 is derived.

The derivation of s 319

51. As Mason CJ explained in R v Rogerson , 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 " ^[46] (1992) 174 CLR 268 at 276; [ 1992 ] HCA 25 . . Hence, it will certainly begin when a person is arrested and charged. But a police investigation undertaken before the jurisdiction of the court or tribunal is so invoked is not part of the course of justice. The administration of justice and the detection of crime are separate and different functions ^[47] (1992) 174 CLR 268 at 276 – 277. . Consequently, an offence of perverting the course of justice cannot be committed before the jurisdiction of the court or tribunal is so invoked.

52. By contrast, an offence of attempting or conspiring to pervert the course of justice may be committed before the jurisdiction of the court or tribunal is invoked but only by conduct which has a tendency to frustrate or deflect a prosecution or disciplinary proceedings ^[48] (1992) 174 CLR 268 at 277 (emphasis added); see also at 283 – 284 per Brennan and Toohey JJ, 304 – 305 per McHugh J. :

" 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 … has not been considered by the police or the relevant law enforcement agency " .

53. Hitherto, the statutory offence created by s 319 has also been seen as requiring proof that conduct which is alleged to have comprised the offence had a tendency to frustrate or deflect a prosecution or disciplinary proceeding. Thus, in R v Charles ^[49] Unreported, 23 March 1998 . , the New South Wales Court of Criminal Appeal (Gleeson CJ, James and Barr JJ) allowed an appeal against a conviction of an offence under s 319 because the trial judge did not leave to the jury the question of whether the alleged act did have that tendency. In that case, the Crown had alleged that the accused asked a prospective witness in a coronial inquiry, Mrs Marshall, to say that she had met the accused on only one occasion. As Gleeson CJ explained, therefore ^[50] Unreported, 23 March 1998 at 5. :

" It was necessary for the Crown to establish that the conduct … was doing an act which had a tendency, and was intended, to pervert the administration of public justice. …

After the Crown had established beyond reasonable doubt the primary facts relied upon concerning the communication between the appellant and Mrs Marshall, there remained substantial room for argument about whether the appellant ' s conduct had the tendency,

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and was accompanied by the intention, which the Crown set out to establish. "

54. In Karageorge ^[51] (1998) 103 A Crim R 157 . , each of the members of the New South Wales Court of Criminal Appeal accepted that the statutory offence created by s 319 of the Crimes Act includes what would have amounted to the common law offences of perverting the course of justice and attempting to pervert the course of justice. Only Sully J went further in expressing agreement ^[52] (1998) 103 A Crim R 157 at 159 – 160. with an argument advanced by Professor Gillies ^[53] Gillies, Criminal Law , 3rd ed (1993) at 820 – 821. that the offence created by s 319 was broader than the common law offences of perverting the course of justice and attempting to pervert the course of justice in that " [ i ] t does not in its literal terms require the intentional doing of an act which actually perverts justice, or one having this tendency " . The other members of the Court did not agree with that proposition.

55. Levine J noted that the statutory offence created by s 319 had been enacted as part of an attempt to abolish and replace the common law relating to public justice offences and that two of the common law offences so dealt with were the offence of perverting the course of justice and the offence of attempting to pervert the course of justice ^[54] (1998) 103 A Crim R 157 at 172 – 173. . His Honour stated that it was unnecessary to decide whether it was incumbent on the Crown to prove that the conduct had a tendency to pervert the course of justice - because, on any rational view of the alleged conduct, it could not be regarded as other than having a tendency to pervert the course of justice. But his Honour also observed that ^[55] (1998) 103 A Crim R 157 at 173. :

" In the light of what was said in the judgments in Charles it does seem to me arguable that any ' act ' relied upon by the Crown for the purposes of the prosecution of an offence under s 319 will not only have to be established as ' intending in any way to pervert the course of justice ' but also to have that requisite tendency. "

56. Simpson J considered that the offence created by s 319 was not in any material way different from the common law offence of attempting to pervert the course of justice ^[56] Karageorge (1998) 103 A Crim R 157 at 183. . After referring to the elements of the common law offence identified in Meissner v The Queen ^[57] (1995) 184 CLR 132 at 140 – 141 per Brennan, Toohey and McHugh JJ; [ 1995 ] HCA 41 . , her Honour concluded ^[58] Karageorge (1998) 103 A Crim R 157 at 183. :

" Precisely the same description can be applied to an offence against s 319. It is the tendency of the act (together with the intention of the actor) that is decisive. "

57. Section 312 of the Crimes Act defines " perverting the course of justice " as " obstructing, preventing, perverting or defeating the course of justice or the administration of the law " (emphasis added). In R v Einfeld ^[59] (2008) 71 NSWLR 31 . , a question arose as to whether the expression " administration of the law " for the purposes of s 319 should be given its literal meaning, as was also argued by Professor Gillies ^[60] Einfeld (2008) 71 NSWLR 31 at 49 – 50 [ 73 ] , 54 [ 88 ] citing Gillies, Criminal Law , 3rd ed (1993) at 820 – 821. , and so be read as including " the exercise by a government body of its functions in applying and enforcing the law of [ New South Wales ] " ^[61] Einfeld (2008) 71 NSWLR 31 at 56 – 57 [ 97 ] . . The Court of Criminal Appeal (Bell JA, Hulme and Latham JJ) held that it should not.

58. Although the meaning of " administration of the law " is not in issue in this case, the reasoning in Einfeld is pertinent in as much as their Honours eschewed attributing a literal meaning to the expression because to do so would have resulted in the criminalisation of conduct which had not previously been criminal and because such a consequence would have ill accorded with the evident statutory purpose of s 319 being among the most serious of the public justice offences ^[62] Einfeld (2008) 71 NSWLR 31 at 57 [ 97 ] – [ 98 ] . :

" [ The literal ] meaning would result in a very wide range of conduct, including conduct that was not previously unlawful, being criminalised as a perversion of the course of justice. This result is a reason to consider that the literal meaning of the words may not be the ordinary meaning to be given to the expression in this statutory context.

The literal meaning of the words in the definition does not fit harmoniously with the scheme of the Crimes Act and Pt 7, in particular. … The offences in ss 321, 322, 323 and 333(1), which are subject to an increased maximum sentence in the event the conduct was intended to procure the conviction or acquittal of any person for a serious offence, may not be dealt with summarily if that feature of aggravation is alleged. The Parliament reserved the offence of perverting the course of justice in s 319 as

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among the most serious of the public justice offences. It is not an offence that in any circumstance may be dealt with summarily. "

59. Their Honours noted that no argument had been addressed to a further submission by the Crown that the statutory offence under s 319 did not require proof that the alleged conduct possessed the tendency to pervert the course of justice. Nor did they decide the issue. But, in passing, they conjectured that ^[63] Einfeld (2008) 71 NSWLR 31 at 51 [ 75 ] . :

" It may be that, as the Crown submitted, it does not. This would point to the correctness of the Crown ' s submission, that s 319 is not to be understood as simply restating the common law. It would also underline the protean nature of the offence if the definition is given its literal meaning. "

60. So far as appears, however, the issue has not since been reconsidered by either the Court of Criminal Appeal or the Court of Appeal, and recently, in Cunneen v Independent Commission Against Corruption ^[64] [ 2014 ] NSWCA 421 at [ 23 ] per Bathurst CJ, [ 85 ] – [ 88 ] per Basten JA, [ 195 ] per Ward JA. , the Court of Appeal proceeded, consistently with Charles , on the basis that proof of tendency is required.

Section 319: the need for tendency to pervert the course of justice

61. Ultimately, of course, the issue of whether tendency to pervert the course of justice is a necessary element of the offence created by s 319 turns on the words of the section. As appears from the decisions referred to, they are susceptible to more than one possible construction. Nonetheless, as matters stand, s 319 has been interpreted by a powerfully constituted Court of Criminal Appeal in Charles , as part of the ratio of the decision, as requiring the Crown to establish that the alleged conduct have a tendency to pervert the administration of public justice. And, despite desultory obiter dicta in favour of the alternative view, Charles has stood for almost 20 years as determinative of the issue.

62. Moreover, to borrow from the reasoning in Einfeld ^[65] (2008) 71 NSWLR 31 at 57 [ 97 ] . , if s 319 were construed literally as excluding the necessity for the Crown to prove that the alleged conduct has a tendency to pervert the course of justice, the provision would potentially result in a very wide range of conduct, including conduct that was not previously unlawful, being criminalised as a perversion of the course of justice. Consistently with the principle of statutory construction that an ambiguous statutory provision which affects the liberty of the subject should not be read as so restricting liberty ^[66] See, eg, Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12 per Mason CJ; [ 1992 ] HCA 64 ; Coco v The Queen (1994) 179 CLR 427 at 436 – 437 per Mason CJ, Brennan, Gaudron and McHugh JJ; [ 1994 ] HCA 15 ; Al-Kateb v Godwin (2004) 219 CLR 562 at 577 [ 19 ] per Gleeson CJ; [ 2004 ] HCA 37 ; Momcilovic v The Queen (2011) 245 CLR 1 at 47 [ 44 ] per French CJ; [ 2011 ] HCA 34 . , there is not a little in principle in support of the prevailing view.

63. Possibly, as was conjectured in Einfeld , there may be convincing arguments to be made in favour of a more expansive interpretation of the section. But, if there are, they have not been made in this case. The most that the Crown offered was a submission in writing in which it was noticed that the Court of Appeal and the Court of Criminal Appeal, constituted by the same judges, in R v Murphy ^[67] (1985) 4 NSWLR 42 at 50 – 51. interpreted tendency for the purposes of the offence created by s 43 of the Crimes Act 1914 (Cth) as a tendency to further or fulfil the purpose or intention of perverting the course of justice, as opposed to a tendency to achieve the end of perverting the course of justice; and a contention, as I understood it, that the offence created by s 319 is consistent with the approach in Murphy because s 319 is couched in terms of " any act " . Quite how that conduces to a conclusion that s 319 requires no proof of tendency remains elusive.

Conclusion

64. In the result, until and unless this Court has had the benefit of full and convincing argument on the point in a case in which the issue truly arises, I should not be disposed to depart from Charles . I consider that, for the time being, trial judges should continue to charge juries, consistently with Charles , that proof of an offence under s 319 requires proof beyond reasonable doubt that the accused did the act or omission alleged, that the act or omission had a tendency to pervert the course of justice and that the act or omission was intended to pervert the course of justice.