Bowden v The State of Western Australia

[2013] WASCA 118

BOWDEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 118

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 118
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:202/2012	Heard:	16 APRIL 2013
Coram:	McLURE P BUSS JA MAZZA JA	Delivered:	13/05/13
No of pages:	19	Judgment Part:	1 of 1
Result:	Extension of time to appeal granted Appeal allowed Judgments of conviction set aside Judgments of acquittal entered
Category:	A
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Parties:	GERALDINE LOUISE BOWDEN THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Attempting to pervert the course of justice Plea of guilty False statements to the police to avoid the issue of traffic infringement notices for speeding offences Whether a miscarriage of justice occurred because, upon the admitted facts, the appellant could not in law have been guilty of attempting to pervert the course of justice
Legislation:	Criminal Code (WA), s 143 Criminal Procedure Act 2004 (WA), pt 3 div 2 Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 12, s 15, s 16, s 17, s 18, s 19, s 21 Road Traffic Act 1974 (WA), s 102, s 102B Road Traffic Code 2000 (WA), reg 9, reg 11, reg 17
Case References:	Chowdhury v Kenny [No 2] [2012] WASCA 35 Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31 Healy v The Queen (1995) 15 WAR 104 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 Mikulic v The State of Western Australia [2011] WASCA 14 Police v Laughton [2012] SASC 102; (2012) 113 SASR 132 R v Murphy [1985] HCA 50; (1985) 158 CLR 596 R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 Vella v The State of Western Australia [2006] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BOWDEN -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 118 CORAM : McLURE P

BUSS JA
MAZZA JA

HEARD : 16 APRIL 2013 DELIVERED : 13 MAY 2013 FILE NO/S : CACR 202 of 2012 BETWEEN : GERALDINE LOUISE BOWDEN

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : DAVIS DCJ

File No : IND 480 of 2012

Catchwords:

Criminal law - Appeal against conviction - Attempting to pervert the course of justice - Plea of guilty - False statements to the police to avoid the issue of traffic infringement notices for speeding offences - Whether a miscarriage of

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justice occurred because, upon the admitted facts, the appellant could not in law have been guilty of attempting to pervert the course of justice

Legislation:

Criminal Code (WA), s 143

Criminal Procedure Act 2004 (WA), pt 3 div 2
Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA), s 12, s 15, s 16, s 17, s 18, s 19, s 21
Road Traffic Act 1974 (WA), s 102, s 102B
Road Traffic Code 2000 (WA), reg 9, reg 11, reg 17

Result:

Extension of time to appeal granted

Appeal allowed
Judgments of conviction set aside
Judgments of acquittal entered

Category: A

Representation:

Counsel:

Appellant : Ms K J Farley
Respondent : Mr J McGrath SC & Mr L M Fox

Solicitors:

Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Chowdhury v Kenny [No 2] [2012] WASCA 35
Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31
Healy v The Queen (1995) 15 WAR 104
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mikulic v The State of Western Australia [2011] WASCA 14

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Police v Laughton [2012] SASC 102; (2012) 113 SASR 132
R v Murphy [1985] HCA 50; (1985) 158 CLR 596
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
Vella v The State of Western Australia [2006] WASCA 129


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1 McLURE P: For the reasons given by Buss JA, the State correctly conceded that the appellant's convictions ought to be set aside and judgments of acquittal entered. The appellant could not in law, on the admitted facts, be guilty of the offences with which she was charged.

2 BUSS JA: The appellant has applied for an extension of time to appeal against conviction.

3 On 31 July 2012, the appellant was convicted, on her pleas of guilty in the District Court before Davis DCJ, of three counts of attempting to pervert the course of justice, contrary to s 143 of the Criminal Code (WA) (the Code).

4 Her Honour imposed a total effective sentence of 10 months' immediate imprisonment.

5 The appellant has been released on bail pending the determination of the appeal.

6 On 9 November 2012, Mazza JA referred the application for an extension of time to the hearing of the appeal.

The application for an extension of time

7 Counsel for the State did not oppose the granting of an extension of time. The delay has been explained satisfactorily. An extension should be granted.

The facts and circumstances of the offending

8 On three separate occasions, two of which occurred on 14 August 2008 and the other on 6 September 2011, the appellant drove a motor vehicle at a speed exceeding the default speed limit, in contravention of reg 11(1) of the Road Traffic Code 2000 (WA) (the RT Code). She was served with a traffic infringement notice in respect of each matter. The notices were issued on photographic evidence.

9 The appellant falsely completed part F of each traffic infringement notice (being the driver identification section) by stating that, at the time of the contravention, another person was driving the vehicle. She returned the completed notices to the police.

10 Each of the 2008 infringements attracted a $75 fine with no demerit points. The 2011 infringement attracted a $150 fine and two demerit points.

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11 Based on the false information provided by the appellant, the police issued traffic infringement notices in respect of the 2008 matters to Kathy Ragless of 30 South Mole Creek Road, Mole Creek, Hobart. Ms Ragless is a real person. She lives in Tasmania and is an acquaintance of the appellant. The address for Ms Ragless given by the appellant to the police was false.

12 Similarly, based on the false information provided by the appellant, the police issued a traffic infringement notice in respect of the 2011 matter to Alison McPherson or Alison McDonald of Scotland. The appellant told the police that Alison McPherson/McDonald was a tourist from Glasgow and that she did not know her address, telephone number, date of birth or driver's licence number. These assertions were false. Alison McPherson/McDonald was not a real person.

The history of the proceedings

13 On 24 February 2012, the appellant was charged with the three offences of attempting to pervert the course of justice.

14 She appeared in the Magistrates Court on several occasions. On 20 April 2012, when she was represented by counsel, the appellant entered pleas of guilty and was committed to the District Court for sentence.

15 On 31 July 2012, the appellant appeared in the District Court. She was represented by counsel. The appellant was arraigned and pleaded guilty. After hearing a plea in mitigation and submissions from the State, her Honour imposed sentence.

The ground of appeal

16 The sole ground of appeal alleges that a miscarriage of justice has occurred in that the facts alleged by the State (and accepted by the appellant) did not establish that any of the offences of attempting to pervert the course of justice had been committed.

17 On 4 October 2012, Mazza JA granted leave to appeal.

The test to be applied by an appellate court in deciding whether to set aside a conviction based on a plea of guilty

18 An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice

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has occurred. See Meissnerv The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).

19 The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 [26]:

It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v R [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v R (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling; unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.

20 Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia [2011] WASCA 14 [23]. See also Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P, Buss & Mazza JJA agreeing).

21 In the present case, the question is whether a miscarriage of justice has occurred because, upon the admitted facts, the appellant could not in law have been guilty of the offences of attempting to pervert the course of justice.

The State's concession

22 Counsel for the State accepted that the appellant could not, in law, upon the admitted facts, have been guilty of the offences. He conceded that the convictions ought to be set aside and judgments of acquittal entered.

23 I am satisfied that counsel for the State's concession was properly made. My reasons are as follows.

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The statutory scheme in relation to speeding offences and traffic infringement notices

24 In Western Australia, there are two methods by which the police may enforce a breach of motor vehicle speeding regulations. First, as a breach of those regulations is a simple offence, it may be dealt with by a court of summary jurisdiction pursuant to a prosecution notice lodged with the court in accordance with pt 3 div 2 of the Criminal Procedure Act 2004 (WA). Secondly, by the issue of a traffic infringement notice pursuant to s 102, or s 102 read with s 102B, or s 102 read with s 102C and s 102D of the Road Traffic Act 1974 (WA) (the Act).

25 Counsel for the State accepted that the second method is 'by far' the more common method.

26 Section 102 of the Act is concerned with traffic infringement notices. It provides, relevantly:

(1) Where a member of the Police Force or warden has reason to believe that a person has committed any such offence against this Act as is prescribed for the purposes of this section, he may serve on that person a notice, in the prescribed form, (a traffic infringement notice) informing the person that, if he does not wish to be prosecuted for the alleged offence in a court, he may pay to an officer specified in the notice, within the time therein specified, the amount of the penalty prescribed for the offence, if dealt with under this section.

…

(4) A person who receives a traffic infringement notice may decline to be dealt with under the provisions of this section and, where he fails to pay the prescribed penalty within the time specified in the notice or within such further time as may, in any particular case, be allowed, he is deemed to have declined to be dealt with under those provisions.

…

(6) Where a prescribed penalty has been paid pursuant to a traffic infringement notice and the notice has not been withdrawn as provided by subsection (5), proceedings shall not be brought against any person with respect to the offence alleged in the notice.

(7) The payment of the whole or a part of a penalty pursuant to a traffic infringement notice shall, for the purposes of sections 51(1)(a) and 76(9)(b), constitute a conviction of an offence, but shall not be regarded as an admission of liability for the purpose of, nor in any

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way affect or prejudice, any civil claim, action or proceeding arising out of the occurrence by reason of which the traffic infringement notice was given.

…

(8) The Governor may make regulations for any purpose for which regulations are contemplated or required by this section and, in particular, may make regulations -


(a) prescribing offences for the purposes of this section, not being offences punishable by imprisonment or offences in respect of which a court is required to disqualify the offender from holding or obtaining a driver's licence, by setting out the offences or by reference to the provision creating the offence or by reference to all or any offences in any one Part of any regulations made under this Act; and

(b) prescribing penalties not exceeding 20 PU for any prescribed offence or class of prescribed offence and prescribing different penalties for the one offence, according to the circumstances by which the offence is attended. (emphasis added)

27 Section 51(1)(a) relates to the cancellation of provisional driver's licences and s 76(9)(b) relates to the cancellation of extraordinary licences. These provisions are referred to in s 102(7).

28 Section 102B is concerned with traffic infringement notices issued on photographic evidence. It provides, relevantly:

(1) Where -

(a) an offence against this Act of which the driving or being in charge of a vehicle is an element is alleged to have occurred; and

(b) the belief referred to in section 102(1) is based on photographic evidence; and

(c) the name and address of the driver or person in charge of the vehicle are not known and cannot immediately be ascertained; and

(d) the identity of the vehicle can be ascertained from the photographic evidence; and

(e) a responsible person for the vehicle is an individual,

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a traffic infringement notice for the alleged offence may be addressed to the responsible person and may be served on the responsible person, personally or by post.

…

(4) If a traffic infringement notice enclosing photographic evidence is served on a responsible person under subsection (1) or (3), the responsible person is to be presumed to be the driver or person in charge of the vehicle at the time of the offence alleged in the notice unless, within the period for complying defined in subsection (4a)


(a) the penalty prescribed under section 102(1) for the alleged offence is paid; or

(b) the responsible person informs an officer specified in the notice that the responsible person was not the driver or person in charge of the vehicle at the time of the alleged offence and supplies to the officer -


(i) the name and address of the driver or person in charge of the vehicle at that time; or

(ii) information showing that the vehicle was stolen or unlawfully taken or used at that time; or

(iii) a statutory declaration that the responsible person did not know, and could not reasonably have ascertained, the name and address of the driver or person in charge of the vehicle at that time.

29 The term 'responsible person', referred to in s 102B(1) and s 102B(4), includes, where a vehicle is licensed, a person in whose name the vehicle is licensed. See the definition of 'responsible person' in s 5(1) read with s 5A.

30 Although the issue of traffic infringement notices is by far the more common method of enforcing a breach of the speeding regulations, the police are not bound, as a matter of law, to deal with such breaches by traffic infringement notices rather than by prosecution notices.

31 The Governor has made regulations for purposes contemplated or required by s 102. These are embodied in, relevantly, the RT Code and the Road Traffic (Infringements) Regulations 1975 (WA).

32 Regulation 9(1) of the RT Code provides that a person who contravenes or fails to comply with any of the provisions of the RT Code, commits an offence.

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33 By reg 9(4):

The offences in this Code that are followed by a penalty expressed as a 'modified penalty' are offences that are prescribed for the purposes of section 102 of the Act, and the modified penalty directly following the offence is the prescribed penalty in respect of that offence, if dealt with under that section, in the manner prescribed in the Road Traffic (Infringements) Regulations 1975. (emphasis added)

34 Regulation 11(1) provides:

A person shall not drive a vehicle at a speed exceeding the default speed limit for that vehicle.

Points and modified penalty: see regulation 17. (original emphasis)

35 Regulation 17 sets out the demerit points and modified penalties (that is, fines) applicable where a person drives a vehicle at a speed exceeding, relevantly, the default speed limit for that vehicle.

36 The term 'default speed limit', referred to in reg 11(1), is defined in reg 3(1).

37 If a person is served with a traffic infringement notice issued on photographic evidence, the person may:

(a) pay the modified penalty specified in the notice (s 102(1), s 102(6), s 102B(1) and s 102B(4)(a));

(b) nominate another person as the driver or person in charge of the vehicle at the material time (s 102B(4)(b)(i));

(c) provide information showing that the vehicle was stolen or unlawfully taken or used at the material time (s 102B(4)(b)(ii));

(d) provide a statutory declaration that the person did not know, and could not reasonably have ascertained, the name and address of the driver or person in charge of the vehicle at the material time (s 102B(4)(b)(iii));

(e) decline to have the matter dealt with under s 102 (s 102(4)); or

(f) do nothing and ignore the notice.

38 If a person served with a traffic infringement notice issued on photographic evidence pays the modified penalty specified in the notice then, upon payment, the matter is at an end and 'proceedings shall not be
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brought against any person with respect to the offence alleged in the notice': s 102(6). The payment of the whole or a part of the penalty constitutes a conviction of an offence, for the purposes of s 51(1)(a) and s 76(9)(b), which, as I have mentioned, relate to the cancellation of provisional driver's licences and the cancellation of extraordinary licences respectively, but does not constitute an admission of liability in any related civil proceedings: s 102(7).

39 If the person:

(a) nominates another person as the driver or person in charge of the vehicle;

(b) provides information showing that the vehicle was stolen or unlawfully taken or used; or

(c) provides a statutory declaration that the person did not know, and could not reasonably have ascertained, the name and address of the driver or person in charge of the vehicle,

then, if the police were to accept the nomination, information or statutory declaration as true and correct, s 102(5) empowers a prescribed officer to withdraw the traffic infringement notice issued to the first-mentioned person.

40 Counsel for the State accepted that if the person declines to have the matter dealt with under s 102, then the ordinary practice of the police is to withdraw the traffic infringement notice and pursue the matter in the Magistrates Court by issuing a prosecution notice.

41 If the person does nothing and ignores the traffic infringement notice, then:

(a) a final demand is issued under s 14 of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (the Fines Act), the Act being a prescribed enactment for the purposes of the Fines Act: see s 12 of the Fines Act;

(b) if the final demand is not paid within 28 days, a prosecuting authority may register the notice with the Fines Enforcement Registry (the Registry) pursuant to s 15 of the Fines Act;

(c) if the notice is registered under s 16 of the Fines Act, the Registrar of the Registry (the Registrar) must issue 'an order to pay or elect'

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to the person and the order must be served on him or her: s 17(1) and s 17(2) of the Fines Act;

(d) if, within 28 days after the issue of the order to pay or elect, either the modified penalty and enforcement fees (as specified in the order) are not paid to the Registry or an election under s 21 of the Fines Act to have the matter dealt with by a court is not made by the person, the Registrar will issue a notice of intention to suspend the person's driver's licence (s 18 of the Fines Act) and, if that notice is ignored, the person's driver's licence will be suspended (s 19 of the Fines Act).

42 Section 21 of the Fines Act confers on both the alleged offender and the prosecuting authority a right to make an 'election', in certain circumstances, to have the matter dealt with by a court. The word 'election' is defined in s 11 to mean 'an election in writing to have a charge for an alleged offence heard and determined by a court'.

43 Section 21 provides, relevantly:

(1) Despite any other provision in this Part, at any time that is -

(a) after an infringement notice is registered with the Registry;

(b) before the modified penalty and enforcement fees, or any part of them, is paid; and

(c) before a time to pay order is made under section 27A(4),

the alleged offender or the prosecuting authority that registered the notice may make an election.


…

(4) If an election is made under subsection (1), the Registrar must -


(a) lodge with a court of summary jurisdiction that has jurisdiction to deal with the alleged offence and the alleged offender a prosecution notice in relation to the alleged offence that contains such of the information provided to the Registrar under section 16(1)(b) as will sufficiently describe the prosecuting authority, the alleged offender and the alleged offence;

(b) serve the alleged offender with a copy of the prosecution notice and a court hearing notice that complies with the Criminal Procedure Act 2004; and

(Page 13)

(c) notify the prosecuting authority that the prosecution notice has been lodged and give the authority a copy of the notice and a copy of the court hearing notice referred to in paragraph (b).

(5) When a prosecution notice is lodged with a court under subsection (4)(a) -

(a) the notice is to be taken to have been made in accordance with the Criminal Procedure Act 2004, without being verified on oath, before the Registrar by the person who signed the enforcement certificate; and

(b) the prosecution is to be taken to have been commenced on the day when the enforcement certificate was lodged. (emphasis added)

44 Section 21 is in pt 3 of the Fines Act. Part 3 comprises s 11 - s 27D.

45 Counsel for the State described the right of election conferred on the prosecuting authority by s 21 as a 'theoretical possibility' for the police. He submitted that there was 'no obvious reason why the police would utilise this procedure when the outstanding fine may be recovered without the need to institute court proceedings'.

46 However, the current practice of the police does not, of course, derogate from the right of election at law conferred on the police as a prosecuting authority by s 21.

Section 143 of the Code and attempting to pervert the course of justice

47 Section 143 of the Code provides:

Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

48 Section 143 creates a substantive offence. See R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 279 (Brennan & Toohey JJ), 297 (McHugh J); Healy v The Queen (1995) 15 WAR 104, 112 (Kennedy J, Malcolm CJ & Walsh J agreeing).

49 The elements of the offence of perverting the course of justice are conduct which has the tendency to pervert the course of justice and an intent that the course of justice be perverted. See R v Murphy [1985] HCA 50; (1985) 158 CLR 596, 609 (Gibb CJ, Mason, Wilson, Brennan, Deane & Dawson JJ); Rogerson (275 - 276) (Mason CJ), (279) (Brennan

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& Toohey JJ), (297) (McHugh J); Meissner (140 - 141) (Brennan, Toohey & McHugh JJ), (148) (Deane J), (156) (Dawson J); Healy (112).

50 The notion of 'perverting' the course of justice involves nothing more than interfering adversely with its proper administration. See Meissner (141) (Brennan, Toohey & McHugh JJ), (148) (Deane J).

51 The essence of the offence is conduct which may lead to a miscarriage of justice, whether or not a miscarriage actually occurs. In other words, it is the tendency of the conduct in question which is critical, not whether the conduct did or did not result in a perversion of the course of justice. See Rogerson (277) (Mason CJ), (298) (McHugh J); Healy (112); Police v Laughton [2012] SASC 102; (2012) 113 SASR 132 [19] (Doyle CJ). There is no requirement of proximity between the accused's conduct, on the one hand, and an ultimate offence, on the other. See Healy (113).

52 The expression 'the course of justice' in s 143 is concerned with proceedings or the exercise of jurisdiction in a court or competent judicial authority. The course of justice begins, for the purpose of s 143, when the jurisdiction of a court or competent judicial authority is invoked. See Rogerson (276) (Mason CJ), (283) (Brennan & Toohey JJ), (302 - 304) (McHugh J). The course of justice ends, for the purpose of s 143, when 'the rights and liabilities of the parties have been finally determined and declared after "an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined" (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, at p 374)': Rogerson (304) (McHugh J).

53 In Western Australia, a prosecution is commenced:

(a) on the day on which a prosecution notice is signed under s 23 of the Criminal Procedure Act by the prosecutor and either a justice of the peace or a prescribed court officer or on the day on which the notice is lodged with the court in which the prosecution is being commenced (in the case of a prosecution notice signed under s 23 by an authorised investigator alone): s 21(3) of the Criminal Procedure Act; or

(b) (where the accused has not been charged with the offence in a court of summary jurisdiction or committed to a superior court on a charge of the offence) on the day on which an indictment that

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alleges the offence is lodged with a superior court: s 83 of the Criminal Procedure Act (in particular, s 83(1), s 83(2) and s 83(6)).

54 A police investigation into a possible offence against the criminal law is not part of the course of justice.

55 However, as Brennan and Toohey JJ observed in Rogerson:

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 actwhich 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, 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 (283 - 284). (emphasis added)

Mason CJ expressed his agreement with those observations (279).

56 Similarly, Deane J said in Rogerson:

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. It is true that one can point to statements in the cases emphasizing the closeness of the connexion between police investigations and pending, probable or possible curial proceedings in relation to the subject matter of those investigations (see, eg, R v Selvage [1982] QB 372, at pp 380 - 381; R v Murphy (1985) 158 CLR 596, at p 610). The closeness of that connexion 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 (293 - 294). (emphasis added)

(Page 16)

See also the views of McHugh J (301, 302, 304 - 305).

57 Where the State must rely on inference to prove the intent of an accused charged with attempting to pervert the course of justice by the doing of an act which tends to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least:

(a) an inference that the accused believed that the police might invoke the jurisdiction of a court or competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and

(b) a further inference that the accused either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the act should have that effect.

See Rogerson (284) (Brennan & Toohey JJ).

58 Mere proof of an intention by the accused to deceive the police is insufficient. See Rogerson (284) (Brennan & Toohey JJ).

The decision in Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31

59 In Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31, the appellant was charged on indictment with five offences. Each count in the indictment alleged that the appellant had made a false statutory declaration to a government body charged with enforcing the traffic laws, with intent thereby to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). An application by the appellant to quash the counts in the indictment was refused. On appeal, the Court of Criminal Appeal of New South Wales (Bell JA, Hulme & Latham JJ) allowed the appeal and quashed the counts.

60 Section 319 of the Crimes Act provides:

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.

61 Section 312 provides:

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. (emphasis added)

(Page 17)

62 A relevant issue on appeal was whether the offence of perverting the course of justice under s 319 extends, by reason of the inclusion of the expression 'the administration of the law' in s 312, 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 New South Wales [21].

63 Count 1 in the indictment related to the submission of a statutory declaration under the Traffic Act 1909 (NSW) and the other counts related to the submission of statutory declarations under the equivalent provision of the Road Transport (General) Act 1999 (NSW), which repealed the Traffic Act.

64 Bell JA, Hulme and Latham JJ described the statutory scheme under each Act, as follows:

Under each Act, provision is made for the issue of penalty notices that provide an administrative procedure for the imposition and recovery of penalties as an alternative to court proceedings in relation to certain offences, which include camera-detected traffic control light offences and camera-recorded speeding offences: s 18A and s 18B of the Traffic Act and s 43 of the Road Transport (General) Act.

The scheme under each Act is relevantly similar. The person responsible for a vehicle that is detected committing an offence may be served with a penalty notice by a police officer or other prescribed officer. The notice contains a statement of the amount of the penalty (being an amount less than the maximum amount which a court may impose in respect of the offence), to whom the sum is payable and of the recipient's right to elect to have the matter determined by a court. If the person does not elect to have the matter determined by a court, there is no provision for the police officer or prescribed officer to elect to have the matter dealt with by the court.

A recipient of a penalty notice who does not elect to have the matter dealt with by the court is deemed to be guilty of the offence. Payment of the amount stated in the notice brings the matter to a conclusion (subject to recording the fact of the offence, and any demerit points, on the offender's driving record).

Penalty notices are enforced under the Fines Act 1996. The State Debt Recovery Office, a statutory body representing the Crown, is established under the Fines Act and is empowered to enter into arrangements with persons who issue penalty notices, or on whose behalf penalty notices are issued, for or with respect to the receipt, recovery and collection of amounts payable under those notices.

(Page 18)

In a case in which the person responsible for the vehicle was not in charge of it at the time of the offence, he or she is required to complete a statutory declaration (a pro forma declaration is printed on the reverse side of the penalty notice) stating the name and address of the person who was in charge of the vehicle at the time of the offence. It is an offence not to provide the information within the time specified in the notice [28] - [32]. (emphasis added)

65 Although the New South Wales scheme has similarities to the Western Australian scheme, in New South Wales (unlike in Western Australia: see [24], [30] and [42] - [46] above) there is no provision for the police or a prescribed officer to elect to have the matter dealt with by a court [29].

66 The Court of Criminal Appeal held that the words 'the administration of the law' in s 312 were not to be given their literal meaning. The literal meaning of the words included the exercise by a government body of its functions in applying and enforcing the law of New South Wales. Their Honours said that 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' [97]. It was held that the words 'the administration of the law' in s 312 should be confined to the administration of the civil and criminal law by courts and tribunals [99].

The merits of the ground of appeal

67 In the present case, the appellant participated in a video-recorded interview with the police. She told the police that she made the false statements because she could not afford the fines and she wanted to avoid the demerit points.

68 Counsel for the State acknowledged that there was no evidence in the video-recorded interview or elsewhere in the prosecution brief that was capable of supporting an inference that:

(a) the appellant believed that the police would or might invoke the jurisdiction of a court in relation to any of her contraventions of the speeding regulations or would or might invoke that jurisdiction unless her false statements deflected them; or

(b) the appellant either knew that the false statements would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the false statements should have that effect.

(Page 19)

69 The only inference reasonably open, on the evidence in the prosecution brief, was that the appellant only intended by the false statements to avoid the consequences of the issue of traffic infringement notices, namely fines and demerit points.

70 I am satisfied that the evidence was not capable of supporting an inference that:

(a) the appellant contemplated that the police would or might invoke the curial processes of a court to deal with any of her contraventions of the speeding regulations; or

(b) the appellant's intention, in making the false statements, was to establish a false defence to an offence for which she would or might be prosecuted in a court.

71 In these circumstances, the appellant could not, in law, have been guilty of the offences of attempting to pervert the course of justice. A miscarriage of justice has occurred. The appeal should be allowed, the judgments of conviction in respect of the three counts in the indictment should be set aside and judgments of acquittal should be entered.

72 MAZZA JA: I agree with Buss JA.