Hatty v Pilkinton (No 2)

[1992] FCA 307

Re: FREDERICK GORDON HATTY
And: STUART HEARNE PILKINTON
No. ACT G41 of 1990
FED No. 307
Criminal Law
(1992) 108 ALR 149
(1992) 61 A Crim R 345

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Black C.J.(1), Neaves(2) and Spender(3) JJ.

CATCHWORDS

Criminal law - Offences relating to the administration of justice - common law - attempt to pervert the course of justice - elements of offence - mens rea - whether legal practitioner representing client in court under false name guilty of offence - bona fide belief in ethical correctness of conduct.

R v Vreones (1891) 1 QB 360, applied.

R v Kellett (1976) QB 372, applied.

R v Thomas (1979) QB 326, considered.

R v Selvage (1982) QB 372, applied.

R v Murray (1982) 1 WLR 475, applied.

R v Doz (1984) 12 CCC (3d) 200, considered.

R v Murphy (1985) 158 CLR 596, followed.

R v Freeman (1985) 3 NSWLR 303, applied.

R v Sinclair (1989) 44 A Crim R 449, considered.

HEARING

CANBERRA

#DATE 22:5:1992

Counsel for the appellant: Mr G. Morrish QC with Mr R. Webster

Solicitors for the Appellant: Director of Public Prosecutions

Counsel for the respondent: Mr T.E.F. Hughes QC with Mr S.F.C. Wilcox

Solicitor for the respondent: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order made by Foster J. on 23 July 1990, entering a judgment of acquittal in respect of the respondent, be set aside, and in lieu thereof -

3. The decision of Magistrate Ward on 15 September 1989 to convict the respondent be restored.

4. The matter be remitted to the Supreme Court of the Australian Capital Territory for consideration of penalty.

5. There be no order as to costs.

JUDGE1

This is an appeal from an order of the Supreme Court of the Australian Capital Territory allowing an appeal by the respondent, Stuart Hearne Pilkinton, against his conviction in the Magistrates Court of the Australian Capital Territory for the common law offence of attempting to pervert the course of justice.

1. The respondent objected to the competency of the appeal but that objection was dismissed: Hatty v Pilkinton (1991) 28 FCR 352; 99 ALR 695.

2. The appeal to the Supreme Court of the Australian Capital Territory was conducted on the transcript of the oral evidence and on the documentary material that had been placed before the Magistrates Court; no additional evidence was placed before the Supreme Court.

3. I begin by setting out the facts found by the judge on the appeal to the Supreme Court. His Honour found that Mr Pilkinton appeared as a solicitor for one Dorothy Camilleri before the Magistrates Court, Canberra, on 12 January 1988 and announced a plea of guilty on his client's behalf to a charge of driving a motor vehicle whilst having a blood alcohol level above the prescribed limit.

4. The defendant was not charged under her real…