Jamieson v The Queen; Brugmans v The Queen

[1993] HCATrans 34

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl27 of 1992

B e t w e e n -

SANDRA LEE JAMIESON

Appellant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No Sl28 of 1992

B e t w e e n -

CAROLYN JANICE BRUGMANS

Appellant

and

THE QUEEN

Respondent

Jamieson(2) 1 2/3/93

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 MARCH 1993, AT 10.15 AM

Copyright in the High Court of Australia

MR T.A. GAME: If the Court pleases, I appear for the

appellants together with my learned friend,

MR G.P. CRADDOCK. (instructed by T.A. Murphy,

Acting Director, Legal Aid Commission (New South

Wales))

MR R.O. BLANCH, OC:  May it please the Court, I appear for

the Crown with my learned friend, MR R.D. COGSWELL.

(instructed by S.E. O'Connor, Solicitor to the

Director of Public Prosecutions (New South Wales))

DEANE J:  Mr Game, these two matters can be heard together I

presume.

MR GAME:  Yes, Your Honour.

DEANE J: And can we take it that the outcome of the second

will follow automatically on the outcome of the

first, or is there some distinction between them?

MR GAME:  The only distinction is a factual distinction.

One of the appellants was the driver of the

vehicle~ the other was the passenger, and the factual allegation concerns the question as to whether or not they falsely asserted that one was

the driver, that person, in fact, being the

passenger. There is no other point of distinction

between them.

MR GAME:  Mr Blanch, do you agree that the outcome of one

will automatically follow from the other?

MR BLANCH:  Yes, I do.

DEANE J: Well, in that case it would be convenient, would

it not, to just deal with one rather than have us

bothering about two cases in one judgment?

MR GAME:  Yes. If the Court pleases, I hand up my outline

of argument.

DEANE J: Yes, Mr Game.
MR GAME:	If the Court pleases, this is an appeal from a

decision of the New South Wales Court of Criminal

Appeal of 24 March 1992, in which it dismissed an

appeal brought to it pursuant to section SF of the

Criminal Appeal Act from His Honour Judge Moore of

7 August 1991, in which he dismissed motions to

quash and demurrers in relation to both appellants.

The question raised by this appeal concerns

the issue whether or not the general exclusion of

criminal liability for statements made in the

course of and with respect to judicial proceedings

extends to preclude a prosecution for the offence

Jamieson(2) 2 2/3/93

of attempting to obtain by deception based upon the

service of a statement of claim claiming damages.

TOOHEY J:	Mr Game, do the indictments as they appear on page 1 represent the indictments in their final
form?
MR GAME:	I understand so, Your Honour, yes.

TOOHEY J: It was just that there was some discussion, I

think, during the hearing about possible

amendments.

MR GAME: There is an error in the first line of each

indictment.	The date should be 31 July 1986 in
relation to	Jamieson and it should be 13 June 1986
in relation	to Brugmans.

TOOHEY J:  Do you mean that is a typographical error or the indictments were framed in that way or what?

MR GAME: Well, I think the indictment was erroneously

framed, and at page 3 the prosecutor clarified the

position and indicated the correct dates. In each

representation as the assertion both that one or other was the passenger or driver and that the vehicle was driven from the road by an unknown

case what is alleged is an attempt to obtain by

deception contrary to section 178BA of the Crimes

driver. The particulars relied upon do not appear

in the indictment and they were made known by the

prosecutor in his submissions, and that appears at

page 3. At page 3, line 15:

Further, the particular false representation

particularized in that count deals with what

the Crown says are false representations made

in that Statement of Claim.

The Crown case would be that it was the

causing of the Statement of Claim to be served

upon the Government Insurance Office which

amounted to the attempt.

And at line 32:

In the Crown's case against the accused

Brugmans - as with Jamieson - the Crown

alleges that the attempt was brought about by

causing the Statement of Claim to be served

upon the Government Insurance Office through

the solicitors.

DAWSON J: Just a matter of interest, Mr Game, what does the

Crown say actually happened?

Jamieson(2) 3 2/3/93

MR GAME:  Your Honour, there were two witnesses, a Mr and

Mrs Evans who turned up at the committal hearing of

Ms Brugmans - she was charged with culpable driving

- and they said that the driver was blonde and that

the passenger was dark. Brugmans was dark, so that

it is a straight factual dispute based on the

evidence that those two witnesses gave some time

later at the committal in relation - - -

DAWSON J:	So the Crown says that the driver and passenger switched places?
MR GAME:	Yes. Although I am not certain of the factual

basis of the assertion, but it would be asserted

that there was no unknown driver. That is to say

that the negligence of the driver, Jamieson, the

Crown would allege, was the cause of the collision.

DAWSON J: But there was a collision with another car?

MR GAME:  But there was a collision with another car, and

the factual basis appears at pages 6 and 7 of the

appeal book - was outlined by the Crown prosecutor

at page 6, and there was some argument about that.

Counsel for the appellant, Brugmans, had appeared

for her in the committal proceedings and at page 7,

line 5, he exposed what he saw to be the high point

of the Crown case, which was that Mr Evans was

saying:

One person had blondey hair and the other person had dark hair -

But, it appears to be a straight factual dispute about which one could not really make any sort of

judgment until one had heard the evidence.

There does not appear to be any suggestion of

some independent means of establishing the Crown

case, for instance, by admissions by either of the

appellants or by some method that plainly meets

their case.

The motor vehicle collision that occurred on

13 January 1984, Brugmans' statement of claim was

issued on 7 March 1986, Jamieson's statement of

claim we do not have the date of but it was issued

some time around about March 1986. They were

served respectively in June and July 1986.

The Court of Criminal Appeal, and its judgment

appears at page 24, was asked to firstly review

Beydoun, secondly to distinguish it. The only

point of distinction is that the particulars which

are relied upon by the Crown Prosecutor in this

case in fact appear in the indictment in Beydoun

and there does not appear to be any other relevant

Jamieson(2) 4 2/3/93

point of distinction. So it would appear that

there is no question of distinguishing Beydoun from

this case.

McHUGH J: Could you assist me, because I am confused about

something which may have no relevance, but it is

this: no discussion or reference is made at any

stage to the question of the proximity rule in

attempt cases. I know the case law has gone all

over the place in relation to that doctrine, but in

general terms you cannot be guilty of an attempt

unless your act is such that little more is
required, or that the next step is to complete the
crime. If in a case like this you file a statement

of claim, there are a lot of other things have got

to be done before you get the property of the

Government Insurance Office.	Has that got anything
to do with this case, or - - -

MR GAME:  It does, Your Honour. I am not certain of the

answer as to whether or not it could possibly -

McHUGH J:  You file a statement of claim: I suppose there is

a remote possibility that they may pay the total

amount claimed but it is a claim for general

damages, is it not?

MR GAME:  Yes.

McHUGH J:  So I suppose you can rule that out. So people

have got to give evidence; you have got to get a

judgment, and then you have got to present the

judgment. It seems a long way removed from the

actual act of filing a statement of claim.	I mean,
it certainly may be a preparatory act.

MR GAME:  Yes. Your Honour, the short answer with respect

to this case is that the point was not taken before

the trial judge and it did not go up on a

section SF appeal. But, Your Honour, it has a

relevance in relation to the way in which the

indictment has been framed, because if one looks

back to Jurca, then in Jurca the indictment was

quashed upon the basis that the offence there being

the making of the statement with intent to obtain

fell foul of the immunity. So clearly the Crown

then said, "Well, we will charge pursuant to

section 178BA". But the issuing of the proceedings

could not possibly amount to an attempt, so clearly
the Crown has seized on the service of the
statement of claim as taking it one step closer to

the completion of the crime, but in so doing it has

brought itself into an event that occurs within the

course of the proceedings. So that would seem to

be how the event has come about that the attempt

has been charged.

Jamieson(2) 2/3/93

TOOHEY J: But there was some discussion, was there not, as

to whether, if instead of issuing a statement of

claim or issuing a writ, there had been simply been

a letter of demand in which the assertions in the

statement of claim had been the subject of a

letter, but it was unnecessary to resolve-that

because the immunity point took over.

MR GAME:  Yes.

TOOHEY J: But the sort of difficulties that Justice McHugh

has just pointed to would well arise in the

situation of a letter which is said to be the
subject of a false representation, or an attempt to

gain money by false representation. But we are not

really involved with any of that, are we, because

of the particular way in which the matter was

presented to the Court of Appeal?

MR GAME:  No, Your Honour.

GAUDRON J: And the starting point then really is an

assumption that section 178BA was not intended to

affect the immunity and the question is, what is

the extent of the immunity?

MR GAME:  Yes. The question can be dealt with by going

directly to the decision of the

Court of Criminal Appeal in Beydoun. If I could

take the Court to that decision at 22 NSWLR 256 at

page 262 to 263. At page 263 about C,

Mr Justice Hunt acknowledged the existence of the

immunity:

Criminal prosecutions for defamation or for
conspiracy to defame based directly upon

statements made in the course of and with
respect to judicial proceedings remain

excluded, as would any other offence so based except for perjury (and its associated crimes)

and contempt. The present case is in my view clearly

distinguishable from the decision in Jurca.
In that case, the dishonest act alleged
against the accused was his participation in

making the false statement in the statement of

claim (the Crown was seeking to bring that

action within section 178BB -

which, as I have said, is the offence of making a

statement with intent to obtain or publishing a

full statement with intent to obtain.

The prosecution was clearly based directly

upon a statement made in the course of and

with respect to judicial proceedings, and the

Jamieson(2) 6 2/3/93

indictment was in my opinion correctly

quashed. I would not, however, wish to be

an offence under section 178BA ..... the

taken as agreeing with the width of every with

proposition stated by the judge in that case.

position would no doubt have been different.

GAUDRON J: Well, why is that?

MR GAME: Well, in my submission, it is a distinction

without a difference.	The statement that was made
in - - -

GAUDRON J:  It may be that one has got to start with the

proper construction of section 178BA.

MR GAME:  Yes, Your Honour, but I read that sentence as

simply being an indication by Mr Justice Hunt that

Jurca would have been decided differently if they

had charged an offence under 178BA and no more.	So
that sentence really does not take that argument
any further.	The point is that if Jurca is

protected by the immunity, which is this statement
made in the statement of claim, in the course of
the proceedings, then so must the service of the
statement of claim which contains those allegations

which are relied upon as the particulars of the

false representations in the indictment. The line

of reasoning which appears at the top of page 263,

in my submission, just simply cannot be sustained:

The indictment in this case identifies the

respondent's relevant act as causing the

initiating process to be served upon that

office, which action in my view cannot

logically be distinguished from the

instigation of the proceedings themselves.

Well, there is a distinction - it is a fine

distinction but there is a distinction.	Nor is there any logical distinction between	serving the initiating process and serving a
letter before action.

Well, there is a distinction in the definition of

the crime itself. The crime has been brought

forward in order to make it closer to an attempt,

then it is necessary to devise a line of reasoning
which takes it back in order to somehow take it out

of the immunity.

DAWSON J: What is he saying there? Is he saying it is the

actual service of the statement of claim which is

the attempt?

Jamieson(2)	2/3/93
MR GAME:	Yes, that is how I read it.
DAWSON J:	And not the statements that were contained in the statement of claim.
MR GAME:	The actual service of the statement of claim is

the attempt; the false representation is the

statements which appear in the statement of claim.

DAWSON J: But if the attempt is the service of the

statement of claim, how is that deception?	I mean,
that that happened.

MR GAME:  You would have to rely on some - there is a real

difficulty there, I accept, Your Honour, in

describing that as the actus reus of the offence.

There really must be something else, and that something else must be the antecedent conspiracy or whatever in any particular case. It is very

difficult to see how a service of a statement of

claim could ever be described as an attempt to

obtain by deception or any offence of dishonesty.

It is nothing more or less than submitting oneself

to the jurisdiction of the court to determine.

McHUGH J: Well, it constitutes attempting to pervert the

course of justice as this Court held in White's

case back in 4 CLR. Or the equivalent - filing a

false declaration in proceedings for the purpose of

obtaining a 475 inquiry under the Crimes Act.

MR GAME:  Yes, Your Honour, but attempting to pervert the

course of justice has different elements. It is

directed towards different conduct and it is a

public administration offence, so it has an

entirely different purpose. So to say that it

answers the description of attempting to pervert the course of justice really does not advance an

argument one inch, that it can also be an attempt

to obtain by deception.

DEANE J:  Would not Mr Justice Hunt's answer to the question

asked of you be that the service of the statement
of claim involved publishing the fraudulent demand

to the person intended to be defrauded by the

deception? I am not suggesting it is right or

wrong, but as I read what His Honour says that

would be the approach you would take.

MR GAME:  Your Honour, that really brings one dangerously

close to Jurca's case because that is really what

the criminality alleged in Jurca's case which is

making the statement, and making the statement must

carry with it a connotation of publishing the

statement.

Jamieson(2) 2/3/93

An analogy is sought to be drawn in this case with the malicious prosecution and abuse of process

cases. But that really begs the question, because
in the malicious prosecution cases first of all the

tort relies as one of its elements upon the completion of the proceedings, a favourable termination of the proceedings and so does not

disrupt them in the way in which this prosecution

disrupts the civil proceedings. But the tort is a

tort about the bringing of the proceedings. It is

a tort which says that the proceedings were brought
with malice and with absence of reasonable and

probable cause.

The charge here relies on the event which

occurs in the course of the proceedings; not in

order to demonstrate something else; not in order

to demonstrate that some other larger thing is an

abuse of process, but in order to demonstrate that

actus reus as that offence. So, in my submission,

the malicious prosecution cases really do not

provide any sort of helpful analogies and nor do

the abuse of process cases, the abuse of process

cases requiring, as one of their elements, improper

purpose or collateral attack.

Now, that analogy just does not apply in

relation to an offence such as this. It is really

no more than a way of creating an artificial

distinction to bring one back out of the immunity

and it really begs questions, it does not answer

them, in my submission. So, those would be my

submissions in relation to the reliance on

Coleman v Buckingham and Prior's case in the

reasoning of Justice Hunt.

I mentioned that favourable determination

where possible was a requirement of malicious
prosecution cases and that, in a case such as this,

if the prosecution is allowed to go forward then,

of course, it goes forward in the face of an

unresolved or potentially unresolved series of

allegations in civil proceedings.

DEANE J:	What state have the civil proceedings reached?
MR GAME:	One of the the civil proceedings is on foot and

one of the civil proceedings, as I understand, was

settled - they were settled before the

prosecutions. The prosecution did not start until

1990 and one of them had been settled some years

before. Jamieson had been settled some years ago.

In Brugmans the proceedings are still on foot.

DEANE J:  It probably has nothing to do with what we are

concerned with, but how is it said that

Jamieson(2) 9 2/3/93

Miss Brugmans sought to gain money for herself by

saying she was the driver when she was not?

MR GAME:  I do not know, Your Honour. It may be, for

example, there was something about Jamieson's
circumstances, maybe the circumstances in which she

drove, which provided a suggestion that they should

between themselves agree to swap places. But there

was nothing to be obtained from the point of view

of a passenger asserting that she was a driver,

other than the requirements of misguided

friendship, or something along those lines.

DEANE J:  One can speculate, if Ms Jamieson had been

rip-roaring drunk it could have been ..... or

something.

MR GAME:  Yes. It is possible, Your Honour, but there is no

explanation which has been given for that. It is
clear from the authorities that pleadings are

included in the description of proceedings and

commencement of proceedings and I have collected a

few cases in references to that question, if I

could just hand those out.

TOOHEY J:  Where do we find the best statement, from your

point of view, of the immunity rule itself,

Mr Game?

MR GAME:  The immunity rule is probably in the line of cases

Munster v Lamb, Hargreaves v Bretherton, and

Dawkins v Lord Rokeby. Hargreaves v Bretherton,

(1959) 1 QB 45 at page 51, at about point 5, a

reference to Rex v Skinner:

an indictment was preferred for scandalous

words spoken of a jury by one of His Majesty's

justices of the peace, and on a motion to

quash the indictment Lord Mansfield said: "I

am willing, as neither Serjeant Davy, nor

Mr Buller, find any precedent in the history

of England, for an indictment of this kind, to

give them time till next term to find any.

What Mr Lucas has said is very just; neither party, witness, counsel, jury, or judge, can

be put to answer, civilly or criminally, for

words spoken in office. That is a perfectly
clear statement by one of the greatest common
lawyers that ever lived, that for words spoken

by a witness "in office", which means, of

course, for this purpose in giving evidence,

he cannot be put to answer either civilly or

criminally.

TOOHEY J: That does not take you far enough, of itself,

does it?

Jamieson(2) 10 2/3/93

MR GAME:  No, Your Honour. There are similar statements in

other cases and there are some other cases from

which one can draw analogies, and I will take the

Court to those shortly.

McHUGH J:  Watson v McEwan is a classic illustration of it,

because Watson v McEwan held that the immunity

extended to the taking of the proof of evidence of

a witness in the solicitor's office.

MR GAME:  Yes. Watson v McEwan is probably the best example

and if I could take the Court to Watson v McEwan

(1905) AC 480. Just before I leave the other, I

will not read them, but there are very similar

passages in Munster v Lamb and Dawkins v

Lord Rokeby, as referred to in the outline, but in

Watson v McEwan, page 480 at page 487 point 5:

"I do not bring the action against you for

what you said in the witness-box, but I bring

the action against you for what you told the

solicitor you were about to say in the

witness-box." If that could be done the

object for which the privilege exists is gone,

because then no witness could be called; no

one would know whether what he was going to

say was relevant to the question in debate

between the parties ..... It is very obvious
that the public policy which renders the
protection of witnesses necessary for the

administration of justice must as a necessary

consequence involve that which is a step

towards and is part of the administration of

justice - namely, the preliminary examination

of witnesses to find out what they can prove.

And if one goes to the High Court's decision in

Cabassi v Vila, (1940) 64 CLR, firstly at page 138

in the judgment of acting Chief Justice Rich. The

facts of this case were that Ms Cabassi had alleged

in common law proceedings that she had been

assaulted by Ferrando; that he had thrown her from

the window of a room. It was found by the

magistrate who heard that civil case that in fact

she had jumped from the window. She responded by

bringing civil proceedings in which she alleged, in

effect, an antecedent conspiracy to harm, and the

question arises as to whether or not the privilege

extended to cover that antecedent conspiracy.

Page 138, a reference is made to two American cases

and then over at page 139 at point 5:

A proceeding of this kind is an attempt to re-

examine the merits of judgment in a

collateral suit between the same parties.

Reasons of public policy and uniform authority

forbid the attacking and impeachment of a

Jamieson(2) 11 2/3/93

judgment in this way. The plaintiff's only

remedy is an equitable proceeding to set aside

the judgment, or a petition for a new trial

under the statute. An action by the defeated

party cannot, for equally good reasons, be
maintained against a witness or witnesses for
giving false testimony in favour of his
opponent. Public policy and the safe
administration of justice require that

witnesses, who are a necessary part of the

judicial machinery, be privileged against any

restraint, excepting that imposed by the

penalty for perjury.

A little bit further on that page:

The procedure, if permitted, would encourage

and multiply vexatious suits, and lead to

interminable litigation.

Well, precisely the same sorts of criticisms can be

made in this case. The charge of attempted fraud

focuses on the very assertions which are said

inferentially to be true in the civil proceedings,

and makes the assertion that those very assertions

are false. The question of priorities clearly lies

importantly behind a prosecution such as this, and

perjury and the like do not interfere with those.

Perjury, in particular, does not interfere with

priorities, because perjury gets its character from

the evidence given in the case.

And then still in Cabassi v Vila at pages 148

to 149, about point 2:

When the statement of claim was filed

there was in existence a binding judgment taken any civil proceedings against Ferrando
against the appellant in favour of Ferrando.

which impugned the judgment except to

challenge its validity.

And at point 4:

While the judgment stood no averment could be

permitted against it, otherwise the judgment

would be "blowed off by a side wind"

Then:

The position is really analogous to that which

obtains in the case of actions for malicious

prosecution ..... In all such cases it is

essential that the plaintiff shall be able to

allege in his statement of claim that the

proceedings terminated in his favour.

Jamieson(2) 12 2/3/93

And then at page 149, point 6, a reference to

Munster v Lamb:

No action will lie for words spoken or

written in the course of any judicial

proceeding. In spite of all that can be said

against it, we find the rule acted upon from

the earliest times. The mischief would be

immense if the person aggrieved, instead of

preferring an indictment for perjury, could

turn his complaint into a civil action.

And there is a reference to Ashby v White,

Lord Chief Justice Holt:

If one perjures himself in a cause, to the

damage of another person who is either

plaintiff or defendant, no action upon the

case lies. Nor is it reason it should, for

perjury is a crime of so high a nature that it

concerns all mankind -

A little bit further in that quotation:

Therefore, for example sake, and public security, the prosecution of such an offence

is vested in the Crown.

TOOHEY J: But authorities are based upon the proposition

that a judgment ought not to be disturbed by a

civil action in which it is alleged that there was

some conspiracy or that false evidence was given, falls somewhat short of the situation that we are

dealing with here. There is no judgment that is

sought to be disturbed.

MR GAME:  No, Your Honour, but there is the question of

priorities. There is the question of the

relationship between the assertions which are made

in one case:  Brugmans says, "I was driving the

vehicle"; another person says, "She was not driving

the vehicle"; there is no way of determining in

advance that question.

TOOHEY J: When you say priorities, Mr Game, you mean

priorities as to which proceeding should be dealt

with first or you mean something else?

MR GAME:  Yes, Your Honour, I do mean that, but the question

of priorities has a further significance in

practical terms than simply which should go first,
as to whether or not the prosecution should go

forwards at all, because the prosecution is a

prosecution about the civil case. It is not a
prosecution about something else, it is a

prosecution about the civil case because it alleges

as the crime the service of the statement of claim.

Jamieson(2) 13 2/3/93

It does not allege as the crime an antecedent

conspiracy; it does not allege an attempt to
pervert the course of justice; it alleges as the

crime the happening of the civil case.

TOOHEY J: It has to be a fundamental defect from your point

of view, because if it was merely a question of which should be dealt with first, that is not a

basis for quashing the indictment.

MR GAME:  No, Your Honour, I accept that. But it is one way

of thinking about what is involved in prosecuting

someone for fraud based on the service of a

statement of claim. If the civil case proceeded,

for example, and a judgment were obtained, then one

would have no hesitation in saying that a person

should not be prosecuted for fraud, based on the

obtaining of that judgment, if there were no more

than the existence of that judgment. It would be

no more than a collateral attack in the sense

identified in Cabassi v Vila.

One comes back to this: there are civil

proceedings on foot; the plaintiff makes a series

of assertions; the making of those assertions is

met by another assertion which is, ·"Your making of

those assertions is the crime of fraud". Now, in

my submission, however one approaches that, that simply cannot be right, at least with respect to

fraud.

There are other offences which can be charged

and if the question is resolved in the field of

policy, which it would appear that it must be, in a

sense, then policy goes all the way, in my
submission, with the appellant's case because there
are other crimes and because of the way in which

the application or non-application of the privilege

affects this case.

I mean, what it says is, "We protect you for

what you say in the case but we don't protect you

for bringing the case" or, "We don't protect you

for serving the statement of claim".

McHUGH J: But can I test it this way: supposing this had

gone on for judgment, could your clients then have

been charged under 178BA with obtaining money by

deceptive conduct?

MR GAME: Well, in my submission, no, if the particulars of

that obtaining were what occurred in the course of

the judicial proceedings. The particulars relied

upon here are strictly one single event that occurs

in the course of the judicial proceedings.

2/3/93

Jamieson(2) 14

TOOHEY J:	I am just having a bit of trouble identifying precisely the basis of the immunity. It seems to
shift a bit from the broad proposition that statements made in the course of judicial
proceedings cannot be the subject of a civil challenge and, it would seem according to your argument, of challenge through the machinery of a
prosecution.  Now, that is a fairly broad
proposition which you may or may not be able to
make good.  Then there is the narrower proposition
which seeks to prevent collateral challenges to
judgments which, at best here, could only operate
by way of analogy, I suppose, since there is no
judgment.  Can you identify for us with some
precision the basis of immunity?
MR GAME:	The basis of the immunity is said to be that

litigants, parties, witnesses and the like should

feel free and be free to make such assertions as

they see fit in proceedings before courts. That is
the way in which the immunity is described in the
cases. But when one looks at the facts of all
these cases all of which are really about people
bringing civil proceedings to attack other civil or
criminal judgments, really they are cases of

disgruntled litigants seeking to make collateral

attacks on other judgments. One could say that of

practically all of the cases, and to that extent

they are not particularly helpful.

If one took the facts, for example, of Cabassi

v Vila and said, "Well, how would it be if

Miss Cabassi instead of bringing common law

proceedings for conspiracy to harm, brought a

prosecution as a private informant for conspiracy

to defraud or some other offence that might be

abstracted for the purposes of the argument?"

DAWSON J:  I do not see how you need to get to that. I just

cannot for the moment see where there are

representations here.	I mean, the fact is that a
statement of claim was served containing certain

allegations. Allegations are not representations

to anyone.	They are putting forward a view of fact
which is then contestable.	They are put forward

not for the purpose that representations in terms

of false representations are normally put forward

for.	They are put forward as the basis of a
contest in court.	Where do you get the false

pretences? There is no false pretence in serving a

statement of claim which contains allegations.	As
I understand it, what is relied on is not the
allegations, but the service of the statement of
claim.

MR GAME:  Yes, except to this extent, Your Honour - - -

Jamieson(2) 15 2/3/93

DAWSON J: You do not get to privilege if that is the -

MR GAME: Except to this extent that in the particulars

given at page 3, line 16 -

the particular false representation

particularised in that count deals with what

the Crown says are false representations made

in that Statement of Claim.

DAWSON J: Representation to whom? If anything, it is a

representation to the court.

MR GAME:  I expect the Crown would say that the

representation is embodied in the assertion, for

example, the assertion I was the driver, or there

was an unknown passenger, but I do not disagree
with that point at all, Your Honour.

DAWSON J:  I mean, otherwise, if every time the plaintiff

failed on the facts you could be suggesting false

pretenses.

MR GAME: Quite, this is a perfectly routine claim for

damages on the face of it, with a perfectly routine

dispute of facts of the kind which are probably

heard in their thousands every year. The notion

that the statement of claim itself can form the

substance of a charge would have a really quite

extraordinary effect on civil litigation.

TOOHEY J:  I can see the force of that, but the problem for

us is that the demurrer, it would seem, accepted

for the purposes of the demurrer argument that

there was a false representation constituted by the

service of the statement of claim, but that that

falsity was protected from criminal proceedings by

reason of the doctrine of immunity. There are a lot of arguments that could have been put up, no

doubt, against the charge; perhaps some by way of

right to say that the matter was before the trial	arguments in point of law or otherwise, but is it
judge and before the Court of Appeal on one basis only, namely whether the doctrine of immunity which you preferred extends to statements made in a
statement of claim once that document is served
upon the defendant?

MR GAME: Well, there was one further argument which was put

before the trial judge and before the Court of

Criminal Appeal and that argument is at page 16 of

the appeal book and that was taken up to the Court

of Criminal Appeal and was included as a ground in

this Court, but again it does not quite meet the

question which is now raised. It was said, in

effect, that the statement of claim could not be

Jamieson(2) 16 2/3/93

used by reason of the decision of this Court in

Laws v Australian Broadcasting Tribunal.

The Court of Criminal Appeal declined leave to argue that question and it was included as a ground in this Court but was not specifically touched upon

in the special leave application. But that does

not meet the question raised by both Your Honour

and Justice Dawson, so the answer is, with that

exception, no, the matter was confined to the

demurrer and the motion to quash.

But the case does raise, although by the

demurrer, very directly, however framed, the

question of what use can be made of the statement
of claim in support of a prosecution for fraud, or

a prosecution for an offence other than attempting

to pervert the course of justice.

GAUDRON J:  Now, it does seem that it has always been

accepted that certain administration of justice
offences can be charged. Might that have something

to do with the fact that those were offences

charged by the Crown whereas other offences could

be prosecuted by individuals at earlier times?

MR GAME:  Your Honour, the offence of - I read that passage

from White v Ashby in which Lord Chief Justice Holt

said that perjury was always charged by the Crown. Perjury was included in the Vexatious Indictments Act 1859 as an offence which required the fiat of the Attorney-General prior to prosecution and that

has been reproduced in New South Wales and now

appears in section 338 of the Crimes Act. Prior to

1859, apart from that authority in Ashby v White, I

am not sure what the lines of authority are. It is

unclear as to what the position was prior to 1859. But there were other requirements in the law

relating to perjury, for example, the requirement

that there be two witnesses to the perjury, and

that was reproduced in the Perjury Act 1911 as a

requirement so that, for example, one could have

got around the provisions of the Perjury Act by

simply charging the person with the substantive

offence of fraud. Likewise, with perjury it was

the practice that the civil case would go forwards

and that the perjury would only be dealt with after

the conclusion of the civil case. So that, yes, it

does appear that perjury was only brought by the

Crown but prior to 1859, apart from that passage in

Ashby v White, I am not certain what the lines of

authority are on that question. The administration

of justice offences are directed towards different

issues and they have different elements.

Jamieson(2) 17 2/3/93

GAUDRON J: Is there any reason for thinking that the

administration of justice offences would have to

await the outcome of proceedings?

MR GAME:  They would not have to await the outcome but the

practice in relation to perjury was that perjury

did await the outcome. Attempting to pervert the
course of justice would raise different issues

again with respect to that question.

So that really, at the end of the day, one can

only address this argument by reference to,

firstly, saying that the distinction drawn by

Mr Justice Hunt in Beydoun is unsustainable and

then from there referring to the policy decisions
that favour the conclusion, that if you protect

statements made in the course of proceedings then

necessarily you will protect the serving of those

proceedings and necessarily you will protect the

institution of those proceedings.

DEANE J:  What do you say would be the position if in the

capacity of Vila the defendants had been charged

with the criminal offence of conspiring to pervert

the course of justice?

MR GAME:  No question of privilege could arise -

DEANE J: Let me spell it out a little bit more, conspiring

to pervert the course of justice by giving false

evidence.

MR GAME:  Your Honour, I think that would be resolved by the

abuse of process cases in the sense found in Hunter

v Chief Constable.

DEANE J:  I have put my question badly. On your argument,

would that be within or outside the immunity?

MR GAME:  It would be outside of the immunity because of the

nature of the offence charged but - and I am sorry

to finish off with a "but", but it would be an

abuse of process unless there was something else

that made it no more than a collateral attack on

that judgment, and it would be an abuse of process

in the sense identified by the House of Lords in

Hunter v Chief Constable.

With respect to the relationship between

charging crimes and charging torts, with respect of

the tort felony rule which required the charging of

the felony before the making of the allegation in

relation to the tort, it was normally required that

the tort be stayed until the felony was heard for
two reasons: one, the public interest in having
the criminal brought to justice; two, the rights of

the individual in respect of their right to silence

Jamieson(2) 18 2/3/93

and so forth, and that is the rule in Smith

v Selwyn which is referred to in Wonder Heat

v Bishop, (1960) VR.

One thing that may in fact have influenced the

decision to charge in this way may be a concern in
relation to the inability to charge antecedent

conduct, and I make the point in my written

submissions that there is really no problem with

charging antecedent conduct, because the rule in

relation to professional privilege does not apply

with respect to an antecedent criminal conspiracy,

being the rule in Reg v Cox and Railton. There is

a provision in the Motor Vehicles Third Party

Insurance Act 1940, section 23, which says that a

statement served pursuant to that section is not
admissible in any proceedings. That is a statement

made to the insurer after the having of an accident

but, in my submission, that does not affect the

position. If the Court pleases, those are my

submissions.

DEANE J:	Thank you, Mr Game.	Yes, Mr Blanch.
MR BLANCH:	If the Court pleases.	I might hand up a copy of

an outline of submissions, Your Honour. If I might

just answer two questions that were raised during

the course of my friend's address: in the case of involved the entering of a judgment for the

plaintiff and money paid by the Government

Insurance Office to her; in the case of

Brugmans - - -

TOOHEY J: Why do you assume that, Mr Blanch? Because that

is the usual practice?

MR BLANCH:  Yes, Your Honour, yes.

TOOHEY J: What, not just that the settlement by a discharge

release - - -?

MR BLANCH:  No, Your Honour. I assume - and that can be

checked, of course, Your Honour and if it is of

significance to the Court then that will be

checked, but I assume that in the normal course

there would have been, by consent, a judgment

entered. In the case of Brugmans, the form of the
alleged fraud takes a slightly different turn in
the sense that it would be the - it is an unusual
case in this sense, that it is the Crown case that

Jamieson was driving the car and it is also clear

that Brugmans was the person that was severely

injured arising out of this; I think she suffered a

broken back, so that she had fairly serious

Jamieson(2) 19 2/3/93

injuries arising out of the circumstances of the

case.

I understand the suggestion is there was some

question about Jamieson being licensed and that is
the allegation that the Crown would be putting as
being the reason why there was some suggestion of

changing places. They are the matters that would

ultimately fall to be determined in the criminal

prosecution. In the case of Brugmans - Jamieson

commenced her proceedings saying that Brugmans was

the driver and she obtained a settlement. Then

Brugmans had also commenced her proceedings and in her proceedings she also said she was the driver but that there was another car that had veered in

that caused the accident and it was the other car
that was at fault. That is the basis of her claim

and the allegation is that that claim that she is

making is false on that basis, although when one

steps back - - -

DAWSON J:  The other car not being the car involved in the

collision.

MR BLANCH:  Yes, another car altogether. Standing back from

all of that, of course, it leave Brugmans in the

position if all of that be true and proved by the

Crown, it leaves Brugmans in the situation where

she was in fact the passenger in a car driven by

Jamieson and suffered a serious injury and the

pursuit of her claim is being done in an incorrect

fashion. So that is the background to the way the

cases have developed. The primary submission that

we wish to make, as the Court will see from the

outline - - -

McHUGH J: But does that not mean in the case of Brugmans

that the allegation that she was the driver is

irrelevant and is the wrong representation

altogether. Is not the representation on the Crown

case that there was another vehicle?

MR BLANCH:	Yes, in Brugmans case, yes.
McHUGH J:	So the indictment really does not cover the case

that you want to make?

MR BLANCH: That could be the situation, Your Honour. I mean

it also raises a number of questions, bearing in

mind the seriousness of the injury to Brugmans and

she being left in the situation where she appears

to have put herself in the position of perhaps not

being able to get a remedy in a situation where

even the Crown would accept she ought to receive

some remedy in the civil law. So that is a

difficult complication that has arisen, perhaps, in

terms of discretion in this matter.

Jamieson(2) 20 2/3/93

DEANE J: Except on what you say, that if Miss Jamieson was

unlicensed, and Miss Brugmans was responsible for

her driving, would there not be a real question of

volenti or true negligence in so far as

Miss Jamieson was concerned if it was her negligence that caused the accident?

MR BLANCH:  Yes. No doubt that would be so, Your Honour, I

was only just advising the Court of the total

picture of this matter because clearly, in so far

as Brugmans is concerned, there will have to be

some question of a discretion about how her case is

dealt with by the Crown at some stage.

DEANE J: But on that scenario, the allegation that

Miss Jamieson was not the driver could be in

Miss Brugmans interests.

MR BLANCH:	Yes, thank you, Your Honour, that is so.
TOOHEY J:	I mean it might depend on whether she had ever

been a licensed driver or not. I mean if she had

been a licensed driver and simply was not a

licensed driver at the time, the sort of questions

raised by Justice Deane are hardly likely to arise.

If she was a young person who had never really

qualified as a driver, well they might well arise.

MR BLANCH:  Yes.

TOOHEY J: Is there not a suggestion that someone had a

child in the car?

MR BLANCH: Yes. There was a child in the car. Jamieson's

child apparently.

TOOHEY J: That suggests she was not all that young.

MR BLANCH:  Yes, there was some evidence from the witnesses

who came to the car about the driver turning around

and looking after the child in the back, and

apparently Jamieson had never been licensed, would

be the Crown case.

McHUGH J: But Brugmans' case in the civil case is really

against the driver of the other vehicle, is it

not?

MR BLANCH:  Yes.

McHUGH J: Whether she is the passenger or the driver is

irrelevant to that case, is it not? I mean, there

can be no question of volenti in relation to the

other driver, can there?

MR BLANCH: Well, Your Honour, I am not familiar enough with

the facts of the case to be able to answer that. I

Jamieson{2) 21 2/3/93

take Your Honour's point about that. The primary submission that we wish to put, as the Court will see from the submissions, is that somewhere between

1772 and today the law of privilege has either gone

of the tracks or is assumed to be somewhere off the

tracks, but in circumstances where really there has

been no reported case, certainly that we can find,

in any common law jurisdiction where the court has

stayed a criminal process because the criminal
process relied upon words spoken in office in the

terms of Lord Mansfield's dictum. And it is rather

an odd situation that Lord Mansfield's dictum in

1772 was an off-the-cuff remark in adjourning a

case where there is no indication as to whatever

happened to the case thereafter.

It has been repeated, of course, in a whole

series of cases between then and the time that

Judge Herron decided Jurca's case but in all the

cases where it has been repeated, including the bit
where he says "civil or criminal", all the cases
are civil cases that were not really looking at the
question of immunity in those cases against

criminal prosecution.

It is said that the whole of the law about

privilege arose to encourage people to come forward

to give evidence and, as I understand, without

taking the court through the treatises in history

books about this, defamation was originally in the

ecclesiastical courts apart from the creation of an offence in the time of Edward I of scandalizing the

judges and the lords and with the demise of the

ecclesiastical courts in the reign of Henry VIII,

the common law developed an action on the case for

defamation.

Very shortly after that occurred there were a number of actions brought by defendants who

succeeded in defending civil claims or defendants

accused in criminal prosecutions who were acquitted

who then brought defamation actions against the

other party and in the reign of Queen Elizabeth I

there were then a series of cases which put forward
the doctrine that in the course of civil

proceedings witnesses should be able to speak

freely so that justice could be done.

That was, as I understand the situation, the primary reason for the rule, and it is recognized

in every case as a rule of policy, a policy of the

law and it is a policy statement, and the only

reason for the rule is that policy reason. In our submission, it is very much a question that is now

open as to what is the policy of the law and what

should the policy of the law be in Australia, or

Jamieson(2) 22 2/3/93

anywhere for that matter, in the context of

criminal prosecutions.

DEANE J:  Mr Blanch, just to understand the nature of the

submission, can I take you to the charge against

Miss Brugmans on page 1. In your submission, would

it be any different if the charge omitted the

reference to the representation that Miss Brugmans

was the driver?

MR BLANCH:  In the case of Brugmans there is a difference,

as I outlined to the Court, in the sense that - - -

DEANE J: Well, let me put it this way: would it be enough

if the charge was a false representation if the

other driver involved in an accident was guilty of

negligence?

MR BLANCH:  Yes, Your Honour.

DEANE J: That would be enough to sustain the charge?

McHUGH J:  I was just going to ask you about this because

you get into the question of recklessness. Now,

supposing a pleader pleads a charge of negligence,

recklessly having regard to the mat~rial

facts, does that amount to deceptive conduct for

the purpose of section 378BA?

MR BLANCH: It may not do, Your Honour. This was a matter

that was looked at by this Court in the John Laws

case as to pleadings, and it was specifically said

there, I think, in the judgment of the

Chief Justice and Justice Brennan that particularly

when looking at defences pleaded in the course of

proceedings, they were not to be taken as

statements or assertions of truth such as could be

relied upon for any purpose. It left open, of

course, the question as to whether that was

different in the context not so much of a defence but of an assertion in pleadings of the plaintiff

and, in particular, when the assertion is the

assertion which commences the action.

So, in a situation like this the Crown case

is - my friend has given me his book and not mine

in this case, in so far as Brugmans is concerned,

the Crown case consists of the statement she made

to the police at the hospital where she said she

was the driver, record of interview that she

subsequently made, statements to various doctors,

other statements to the police and the letters of

particulars that were served. So there is a whole

series of statements and representations eventually
culminating in the issuing of a process. So that
in terms of proving its case the Crown would call

evidence of all of those things and statements that

Jamieson(2) 23 2/3/93

she made, representations she made, about the

situation.

DAWSON J: Well, how could it call it? What relevance have

they got?

MR BLANCH:  I am sorry, Your Honour?

DAWSON J: What relevance would they have? You are

asserting that the service of the statement of

claim constituted the deception.

MR BLANCH:  Yes, Your Honour.

DAWSON J: Well, what went before has not anything to do

with it.

MR BLANCH: Well, with respect, Your Honour, the assertion

is that there is an attempt to obtain money by

deception.

DAWSON J:	And the attempt is the service of the statement of claim.
MR BLANCH:	Yes, it is, in our submission, Your Honour, and

it is an attempted deception because it is the

publication of her claim to the defendant in the

proceedings and it comes at the end of a series of

representations.

DAWSON J:  I do not know where it comes, but why is it a

deception? It does not contain representations, it

contains allegations designed to raise issues to be

determined.

MR BLANCH: Well, Your Honour, is that a question of fact

for the jury to determine in the context of the

proceedings in this sense, that here is a person

who has made misrepresentations, in our submission,

to the police, to various doctors -

DAWSON J: But she is not charged with that.

MR BLANCH: Well, Your Honour, I am simply dealing with the

question of the state of mind of the accused and

what the statement of claim says, and what the

Crown says is that here is a person who has done

all of those things and then issues the statement

of claim which is in a particular form and from

that the jury can safely conclude that the
statement of claim was asserting all of those

things and that it is the act that is chosen as the

attempt simply because it is the last act that is

done by her in this course.

Jamieson(2) 24 2/3/93

DAWSON J: There is no dispute that the statement of claim

is asserting those things. It would not be an

issue in the criminal proceedings.

MR BLANCH: Well, yes, Your Honour, but it is submitted by

the Crown that that is done in an attempt to

defraud, and that is the last act done by her - - -

DAWSON J: Defraud whom?

MR BLANCH: Defraud the Government Insurance Office.

McHUGH J: Supposing she had gone on to give evidence in the

case and it was settled half-way through the action

after she had given evidence, what would be the

acts that you would rely on as constituting the

obtaining of the money by false pretenses, what

would be the deceptive conduct that you rely on?

MR BLANCH:  Your Honour, in that case we would rely on every

piece of evidence that was available to prove that,

including the giving of evidence if it could be
proved that the evidence was false, so that in
terms of proving the course of conduct to the jury,
you would prove each of the claims that was made
beforehand, the commencement of the proceedings,
and then subsequently the evidence that was given

in the proceedings, as a means of proving that she

was acting fraudulently in attempting to get the

money or getting the money.

McHUGH J:	So you would rely on her evidence as well?
MR BLANCH:	Yes, because our primary submission,

Your Honour, is that in fact Jurca's case is wrong,

this privilege argument that has arisen is simply a

misconception of what Lord Mansfield said.

TOOHEY J:  Why do you say Jurca's case is wrong?

MR BLANCH:  Your Honour, in the sense that it propounds a

theory of a privilege in the course of evidence -

privilege witnesses in the course of civil

proceedings, that the only privilege that has ever
been spoken of in the cases at all is the sort of

thing that Lord Mansfield was talking about, that

is privilege against civil actions or criminal

defamation. Now, one can readily understand why

the policy of the law might be, if the primary

policy of the law is to encourage witnesses to come

forward and allow them to speak freely, it can be

understood why, in those circumstances, the

criminal defamation might be excluded, or there

might be privileging its actions for criminal

defamation because criminal defamation is something

that is obviously very closely related to civil

Jamieson(2) 25 2/3/93

defamation and relates specifically to the words

spoken by the witness in office.

TOOHEY J: Yes, I understand the argument. I just wondered,

reading your submissions, why you were not inviting

us to do anything about Jurca.

MR BLANCH:  Yes, Your Honour, I do on that - - -

TOOHEY J: Are you?

MR BLANCH:	Yes, Your Honour, I am.
TOOHEY J:	What are you inviting us to do?

MR BLANCH: Overrule it, Your Honour, and, in our

submission, on that basis, the whole law of

privilege, in our submission, has been misread and

misinterpreted on that basis.

DAWSON J:  On that argument, if you went ahead and recovered

damages on the basis that the Court believed what

she said, you could still bring proceedings,

criminal proceedings, not for an attempt, but for

obtaining money by deception.

MR BLANCH:  Yes, Your Honour.

GAUDRON J: Unrestrained by the judgment or the rules that

pertain with respect to the charge in perjury.

MR BLANCH:  Yes, Your Honour.

DAWSON J: Then the deception would have been the deception

of the court, which it rejected.

MR BLANCH: Well, Your Honour, if that be the proof of the

matter, there was no - if that can be proved beyond

reasonable doubt in a criminal prosecution, there

is no reason for that not to occur. In fact, it is

in the interests of justice that the courts be

protected. There are actions as have been

pointed - - -

DAWSON J: There is no deception involved, you see. There

is no deception involved. It goes through a

process to determine an issue, and whoever has to

determine it, believes one side or the other. It

is debated.

MR BLANCH: Well, there is a deception, Your Honour, if, in

the course of that, the witnesses tell lies, and at
the end of the day that becomes apparent and can be

proved beyond reasonable doubt. Perjury
prosecutions are done on that basis all the time. It is possible to prosecute an attempt to pervert

the course of justice, and as Justice Hunt said in

Jamieson(2) 26 2/3/93

Beydoun - of course, he was not dealing with this

broader question because he was accepting the Jurca

as right for these purposes, but as he pointed out

in Beydoun, the statement of Lord Mansfield in

Skinner just cannot possibly be literally correct, because it is the fact that perjury, contempt of court and perverting the course of justice are all matters which can be prosecuted arising out of

words said in office by a witness.

McHUGH J:  Why did not the Crown prosecute for attempt to

pervert the course of justice in this case? It is

a pretty clear case on your case, is it not?

MR BLANCH:  Yes. I accept that, Your Honour, but it is not

the way the matter has come here and there have

been some other cases where the charges have since

been changed to that, so that those matters can

proceed. But, the fact of the matter is that it is

charged as a fraud in this case and, in our
submission, no reason why not.

The policy of the law in allowing perjury,

attempts to pervert the course of justice, and
contempt, is a policy of the law to protect the
courts. All the judgments in Cabassi v Vila talk

about that. In particular, the judgment of

Mr Justice Williams in that case, it is pointed out that it is very important to the community and the administration of justice that there be sufficient

protection. The question that I would ask

rhetorically, "Well, why should that protection not

extend to charging witnesses who were committing a

deliberate fraud, with committing a fraud, rather

than charging them with attempting to pervert the

course of justice?"

It is simply another charge in the criminal

justice system that allows that to occur, and in

some ways it is more specific because you are

explaining how the course of justice was being

attempted to be perverted.

In fact, reading the cases and reading all

the judgments which explain why perjury should be prosecuted, all of those reasons apply equally to

any criminal offence that is committed during the

course of proceedings, except, perhaps, with the exception of criminal defamation. Even then one

wonders why criminal defamation should be excluded

if a witness, during the course of proceedings,

goes so far as to commit criminal defamation

because, as it is now interpreted, it is fairly

difficult to be guilty of criminal defamation. If

a witness went so far during the course of

proceedings as to commit a criminal defamation it

is difficult to see, and perhaps in America subject

Jamieson(2) 27 2/3/93

to questions of relevance which their law tends to

look at, it may be that the witness could be

prosecuted for criminal defamation.

It is our submission that really that is a

first question that ought to be looked at. There

is no distinction in this, I might say, between a

criminal prosecution for perjury and any other
offences, because my researches into this indicate

that although since 1859 in England perjury could

not be prosecuted unless a fiat were obtained from

someone or other - it was either the Attorney-

General or the court - and that has been reproduced and perhaps I should hand up to the Court some
copies of some pages out of Stephen and Oliver's

manual on criminal law where, in 1883, a similar

provision was introduced into the New South Wales

Act.

At page 116 Your Honours will see the

commentary by Stephen and Oliver to section 300 as

to why it was introduced. It was really only

following the English provision that my friend

referred to in 1859 when leave provisions were

introduced into England at that stage. Obviously
the provision was introduced because of the fact

that there were vexatious prosecutions being

commenced by private individuals and the Court is

no doubt aware of the general history of

prosecuting in that prosecutions were at one time

all commenced by private informations up until the

growth of the Reform Societies at the end of the
seventeenth and beginning of the eighteenth century

of people putting themselves forward to do a public

duty by bringing informations and then developing

into a more organized system of prosecuting that we

have today.

But the fact of the matter is that when one goes back to the 16th century to the beginnings of

that prosecutions for perjury were brought by an	the law about all of this, it is perfectly clear
individual. I did wonder for a moment about the
fact that many perjuries are committed in the face
of the court and therefore the court would be in a
particular position to prosecute perjuries in the
same way as they are for contempt. But it is also
clear that perjury can be committed in other ways
by affidavits.

There was one case of Gallard - I might just

mention the reference to it - it is in Haward's

Star Chamber Reports at page 95. I came across it

in the text book by Kiralfy, A Source Book of

English Law, at page 347, where he reproduces a

case where in about 1585 two brothers were

contesting who should succeed to the father's

Jamieson(2) 28 2/3/93

estate and the father had left the estate to a

younger son, and the older son had witnesses swear

to the fact that the father had changed his mind.

That action went through the civil courts and

through appeals, and judgment was given in favour

of the older son. It then became clear that the

witnesses had all perjured themselves and an action

was then brought in Star Chamber against those

witnesses for perjury. But it appears from the

report that the action was brought by the aggrieved

brother. Once again, it is a case where the

perjury was a perjury that had occurred in other

proceedings and it had not been apparent to the

courts that had heard the case, so that it was
necessary for somebody to bring the perjury action

before another court and, of course, affidavits may

occur in court proceedings where it may be that it

does not come to the attention to the court.

So it appears abundantly clear that perjury in

exactly the same way as any other offence, contempt

of court, and certainly perverting the course of

justice, are all offences that could be brought by

the individual. In fact, I noticed as my friend

was reading in Cabassi v Vila, (1940) 64 CLR, and

he was reading from page 149 in the judgment of

Justice Williams, the last paragraph on page 149

where Justice Williams refers to Munster v Lamb and

then quotes from Henderson v Broomhead and says:

The mischief would be immense if the person

aggrieved, instead of preferring an indictment

for perjury, could turn his complaint into a

civil action.

So it seems to be accepted that the person

aggrieved would himself commence the information

for perjury, but in any event, it is our submission

that it is abundantly clear that that was the way

the law developed. So there is no distinction

between perjury and any other criminal offence.

One wonders therefore what can possibly be the

public policy that excludes the Crown from bringing

a criminal prosecution against any witness in the

course of any proceedings if it is clear that the

witness party has committed a criminal offence and

that can be proved beyond reasonable doubt.

I think, in answering Your Honour's questions

and talking about all of that, I have probably

covered all of the material that I wanted to talk

about in points 2 and 3 of the outline, but would

the Court just allow me a second to - - -

DAWSON J: Just a question, Mr Blanch. If, what I was

putting to you were correct, namely that the nature

of the thing involves no deception, merely serving

Jamieson(2) 29 2/3/93

a statement of claim is notice to the other side

that you intend to prove the allegations which are
there, that of course would not have justified the

quashing of the indictment; is that the way you put

it? That would be something which would be

contested in the proceedings.

MR BLANCH:  Yes, they would be contested in the course o·f

the proceedings, Your Honour.

GAUDRON J: Well, is that right? Would not the question

then be whether section 178BA properly construed

applies to this situation?

MR BLANCH: Well, Your Honour, my answer to Justice Dawson's

question is primarily that that is really a

question of fact in the course of what the Crown

case is. The Crown case is a series of facts which

the Crown would prove, in one way. Another way of

looking at that might be that the Crown is really

seeking to prove circumstantially what the

intention was in commencing the prosecution and if

it is clear that a series of lies have been told

and representations made right up until that point

and then an action is commenced, the inference that

the action was commenced on that basis for that

purpose might be resistible, and that then becomes

a question of fact which needs to be agitated

during the course of the proceedings.

GAUDRON J: Yes, would there not be a question, "What is

involved in the expression 'deception'"?

MR BLANCH:  Yes, Your Honour. That would have to be because

of the wording of section 178BA. I notice in 2(d)

I have made a reference to Skinner itself and

Lord Mansfield's reference to mala mens which is a

little bit obscure. He seems to talk about it in

terms of something that might turn up on an

investigation into whether there had been a

contempt of court.	But then that really is the
whole problem with Skinner's case, that Skinner's

case is so thin in its analysis of the question

that I suppose it is difficult, in our submission,

to rely on Skinner's case as a substantial

authority for anything except for the fact that he

seems to accept that an evil mind is something that

is going to make a difference if it occurs in the

course of an examination.

I do not think there is anything else in 2

and 3 that I need to take the Court to. The only

matter then that is left in our submissions is that

if that primary submission falls then we would come

to the point of the submissions that we make in
paragraph 1 and that is that there are, in addition

to the criminal processes which are clearly open

Jamieson(2) 30 2/3/93

arising out of words said in office, civil

prosecutions, there are torts that have accepted

that - particularly malicious prosecution or

maliciously instituting a civil claim, or abuse of

the process of the court, they are all actions

which rely on evidence as to what was said by

witnesses in office and the shortest way I can put

that is to way that we would adopt what

Justice Hunt said about that in Beydoun.

DEANE J:  Mr Blanch, you referred to a case in the Star

Chamber Reports.

MR BLANCH:	Yes, Your Honour, the case of Callard and the reference is Hawardes Star Chamber Report at page
95 and, in fact, I found it in a text by Kiralfy
entitled, A Sourcebook of English Law, at page 347.
DEANE J:	Have you got a copy of that with you?
MR BLANCH:	No, I am sorry, Your Honour, I have not.
DEANE J:	No doubt our library will have it.
TOOHEY J:	Mr Blanch, there is a curious reference in 3(a).

You seem to have moved Lord Mansfield along a bit

to the 20th century.

MR BLANCH:	Yes, I have, Your Honour.
TOOHEY J:	The (1918) 2 KB 405 is a case of Copartnership

Farms v Harvey-Smith. Is that a case that - - -

MR BLANCH:	No, Your Honour.
TOOHEY J:	It looks as if it could be very vaguely relevant.

MR BLANCH: That would have to be a very great fluke,

Your Honour.

TOOHEY J:  So we can forget about that, can we?

MR BLANCH:  Yes, Your Honour.

DEANE J: Thank you, Mr Blanch. Yes, Mr Game.

MR GAME:  If the Court pleases, with respect to the history

of perjury, the matter still appears to remain

unclear because there is the passage in Lord Chief

Justice Holt's judgment in Ashby v White in which

he says that therefore, for example, in public

security, the prosecution of such an offence is

vested in the Crown. So that the mere fact that

Vexatious matter as to whether or not the Crown preferred indictments for perjury.

perjury found its way into the

Jamieson(2) 31 2/3/93

With respect to this question of the evidence

required for a perjury charge, if I could just hand

to the Court a passage from Kenny which requires

that two witnesses be called. It is paragraph 471.

So a prosecution for fraud would get around the
requirements of the common law in section 13 of the

Perjury Act.

With =espect to the question raised by

Justices Dawson and Gaudron in relation to whether

or not there would be outstanding questions of fact

in relation to the issue of representation and

deception, in my submission there would not, given
that what the Crown was relying on was the
statement of claim itself so that reference to

antecedent material could not be relevant to that

particular question.

With respect to the scope of the privilege,

one matter which emerged in argument which I did

not address was the fact that the pleadings,

clearly, must be privileged in the same way as

evidence and one of the reasons is that the

pleadings are formative in the sense that
allegations may change during the course of a case;
the case may change. The facts of this case do not

really present a suitable vehicle for presenting an

example, but there are many examples in commercial

litigation, for example, where allegations change

substantially during the course of cases. So, one

reason for extending the privilege to pleadings is

that the pleadings are formative. They are what is

alleged at the commencement of the case; they are

not necessarily conclusive as to what the plaintiff

alleges.

TOOHEY J: Well one question that that raises, not crucial

to the decision here, but with some procedures and

it is becoming more and more the case, the

originating process is accompanied by an affidavit.

The process itself may say very little; it is the
affidavit which contains the allegations.	Now, I

suppose you would be on stronger ground - you could

not be on weaker ground - if the charge had been in

respect of anything, the subject of an affidavit,

as opposed to a statement of claim.

MR GAME:  Yes, and also many statements of claim require

affidavits as to their truth.

DAWSON J:  On the other side, of course, you have many

statements of claim which contain claims in the

alternative.

MR GAME:  Yes. Many statements of claim of practically

nonsense produced by solicitors' word processors.

Jamieson(2) 32 2/3/93

TOOHEY J: This might be a salutary way of insuring that

they are not.

MR GAME:	With respect to, in effect, that the argument presented by Mr Blanch based on the absence of authority; well, in one sense the absence of
authority is telling, because if Ms Cabassi and all of the other vexatious litigants could have run
around to the nearest magistrate's court and
charged a crime, then no doubt they would have at
some stage, so that the silence of the authorities
certainly does not assist the Crown and maybe,
influentially in some small way, assists my case.

Likewise, with Mr Blanch's argument,

ultimately you would have to abandon the privilege

in relation to criminal defamation as well. If one accepts Mr Blanch's arguments, then there is really no reason for any privilege, including the

privilege in relation to criminal defamation.

Those are my submissions, Your Honours.

TOOHEY J: Mr Game, could I just ask you something before

you sit down. Are we to be concerned at all with

ground three of the notice of appeal.

MR GAME:	No, if the Court pleases.
TOOHEY J:	We can forget about that?
MR GAME:	Yes, it was only included because the rules

require leave before a ground is not put on the
notice of appeal after a special leave application.

If the Court pleases.

DEANE J:  We are indebted to counsel and we will reserve our

decision in these appeals and adjourn until

10.15 am tomorrow.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

Jamieson(2) 33 2/3/93