Downey v The Queen - [1994] HCATrans 221

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S2 of 1993
B e t w e e n -
LORELLE JOY DOWNEY

Applicant

and
THE QUEEN

Respondent

Application for special leave
to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Downey

4/3/94

AT SYDNEY ON FRIDAY, 4 MARCH 1994, AT 11.46 AM

MR P.J. HIDDEN, QC:

May it please the Court, I appear with

my learned friend, MR P.J. SAIDI, for the
applicant. (instructed by Paul K. Bell & Co)

MR R. KELEMAN:

May it please the Court, I appear for the

respondent. (instructed by S.E. O'Connor,
Solicitor for Public Prosecutions (New South
Wales) )

BRENNAN J: Yes, Mr Hidden.

MR HIDDEN:	If the Court pleases. Your Honours, this application raises a number of questions and might
we deal, Your Honours, initially with the one last
raised. Your Honours, there has been filed, only recently, a supplementary outline of argument, or
summary of argument, which we trust Your Honours
have, which raises a question which we have to
acknowledge at the outset was never agitated in the Court of Criminal Appeal or at any earlier stage.

The applicant, Your Honours, was found guilty

of obtaining money from the Government Insurance
Office by deception under section 178BA of the
Crimes Act of New South Wales, the deception being
as it appears in the judgment in the Court of
Criminal Appeal by falsely stating material
particulars when making a claim against an insurer.
She was ordered to perform 200 hours community
service, Your Honours, which she has performed I
understand.
Your Honours, the additional issue which has

arisen is the decision of this Court in Jamieson &
Anor v The Queen, (1993) 67 ALJR 793, which is no

doubt fresh in Your Honours' minds. One of the
questions which arose there was the immunity of a party or a witness from prosecution in respect of words spoken in office for the purpose of a
litigation, that is, from prosecution other than
from an offence dealing with the administration of

justice such as perjury, intent to pervert the
course of justice and the like.
Now, Your Honours, in Jamieson, the case was

argued on the basis that all the Crown relied upon,
and only upon, the service on the Government
Insurance Office of a statement of claim and on no
other material and the majority of this Court held
that the long-standing common law immunity
discussed in that decision extended to pleadings
which were, in the relevant sense, words spoken in
office. There was another basis on which the
majority held that the statement of claim could not
found the prosecution of that nature in any event,
but for present purposes it is sufficient to say

Downey

4/3/94

that the court took the view that a statement or
claim, or pleadings, enjoyed the same immunity from
prosecution other than for an offence relating to
the administration…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Downey v The Queen

Details

AGLC: Downey v The Queen [1994] HCATrans 221
Case: [1994] HCATrans 221
Decision Date

CaseChat Overview and Summary

The applicant, Downey, sought special leave to appeal to the High Court of Australia from a decision of the New South Wales Court of Criminal Appeal. Downey had been convicted of obtaining money from the Government Insurance Office by deception, contrary to section 178BA of the Crimes Act 1900 (NSW), by falsely stating material particulars when making a claim against an insurer.

The primary legal issue before the High Court concerned the application of the common law immunity afforded to statements made in the course of legal proceedings. Specifically, the applicant argued, by reference to the recent High Court decision in *Jamieson & Anor v The Queen*, that this immunity extended to the documents forming part of her claim against the insurer, thereby precluding her prosecution for deception based on those documents. The applicant acknowledged that this argument had not been raised in the Court of Criminal Appeal.

The Court considered the principles established in *Jamieson*, which affirmed a long-standing common law immunity for words spoken in office for the purpose of litigation, extending this to pleadings. The applicant contended that her claim, which included a statement of claim, a letter of demand, and particulars of negligence, fell within this protected sphere. The Crown's case, as presented, focused on the deception involved in falsely stating material particulars when making the claim. The Court noted that the indictment did not further develop the nature of the deception beyond this general statement.

Orders