Jamieson v The Queen; Brugmans v The Queen

[1992] HCATrans 281

..

.	'
•	--~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SSS of 1992

B e t w e e n -

SANDRA LEE JAMIESON

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S56 of 1992

B e t w e e n -

CAROLYN JANICE BRUGMANS

Applicant

and

THE QUEEN

Respondent

Applications for special

Jamieson 1 1/10/92

leave to appeal

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 1 OCTOBER 1992, AT 2.16 PM

Copyright in the High Court of Australia

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

applicants, together with my learned friend,

MR G. CRADDOCK. (instructed by Legal Aid

Commission of New South Wales)

MR R.O. BLANCH, OC: If the Court pleases, I appear for the

Crown with my learned friend, MR W.G. ROSER.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions)

DAWSON J: There is no reason why these two matters should

not be _heard together, is there?

MR GAME:  No, Your Honour. They raise precisely the same

point.

The application for special leave is from a

decision of the New South Wales Court of Criminal

Appeal dated 24 March 1992 in which it rejected an

appeal brought pursuant to section SF of the

Criminal Appeal Act from a judgment of His Honour

Judge Moore in the district court on 7 August 1991

in which applications were made to quash

indictments and demurrers were entered in relation

to indictments against both Jamieson and Brugmans.

The precise question raised on the application

for special leave is whether or not a person can be
charged with attempting to obtain by false
pretenses, based upon representations contained in
the statement of claim served on a defendant, in

this case the GIO. The broader question which

arises is whether or not immunity from prosecution

exists at all in relation to statements made in the

course of criminal proceedings and, if so, how one

defines that immunity. It will be one of my

submissions to the Court that Beydoun's case

provides no satisfactory guidance as to how that
broader immunity might be applied and, in fact, in

the formulation of that immunity it negates any

possibility for there being such an immunity.

The indictment in this case appears at page 1

of the application book. It says that the offence

was committed on - it refers to the service of the

statement of claim as being 31 July 1984 and

13 June 1984. In each case it is 1986. The

allegation is an attempt to obtain by false

representation - and the false representation in

both cases concerns an allegation that Brugmans was

the driver and that the car was driven from the

road by an unknown vehicle - a vehicle coming on

the other side of the road.

Now, that indictment was particularized at

page 3 and the particulars are of some

significance. About line 15, the particular false

Jamieson 2 1/10/92

representation particularized in that count deals

with what the Crown says are false representations

made in the statement of claim. What appears in

the indictment mirrors what is alleged in the

statement of claim.	So the representation are the
statements made in the statement of claim.	Down at
about line 35:

The Crown was not relying on the fact that

certain instructions were given by either

accused to their respective solicitors for

the respective registries on dates well before the dates particularised in the indictment.

inclusion in the Statement of Claim. with

The Crown case was that the attempt was the

causing of each Statement of Claim to be

served upon the Government Insurance Office

through the respective accused's agent and

their solicitors -

So the representations is the representation which is the statement in the statement of claim; the attempt is the service some time after filing of the statement of claim upon the GIO.

Now, the Court of Criminal Appeal held that

this case was indistinguishable from Beydoun and it

is unnecessary to put any argument to the Court

that it was distinguishable. The only point of

distinction is that Beydoun was charged with a

different offence which was obtaining by deception

under section 178B, and in Beydoun the particulars

were different in one respect only: they referred

to the causing of the statement of claim to be

served, that particular appears in the indictment.

So for present purposes, there is no relevant point

of distinction with Beydoun.

So firstly, the Court of Criminal Appeal said

Beydoun was indistinguishable, and no argument is

put to the Court in relation to that question.

Secondly, the Court of Criminal Appeal said Beydoun

was correctly decided and the court declined to

review it. A question then arises as to the

authority of Beydoun, 22 NSWLR 257. If I could

take the Court directly to that case to page 263

about C, and Justice Hunt, who delivered the

leading judgment of the court, acknowledged that
the immunity existed.

In my opinion, that rule applies (subject to exceptions) -

Jamieson 1/10/92

and those exceptions are exceptions relating to

administration of justice type offences, perjury,

attempt to pervert the course of justice, contempt

and the like -

to criminal proceedings as well. 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 -

and "so based" must be a reference back to

statements made in the course and with respect to

those proceedings -

except for perjury (and its associated crimes)

and contempt.

Now, the court then has acknowledged the

existence of the immunity and then in the next
paragraph the court has said that the case of Jurca

was correctly decided. Now, Jurca was a very

similar case, but based on an offence charged under

section 178BB. The particular in that case is the

making of the statement or the concurring in the
making of the statement in the statement of claim.

If Jurca was correctly decided then, in my submission, the decision should have gone the other

way in Beydoun and the decision should have gone

the other way in Jamieson. It is entirely a

meritless pleading point to distinguish between the

making of the statement in the statement of claim
and the service of the statement of claim or, to

take it back one step, the instigation of the

proceedings as a point of distinction. Once one

makes that point of distinction one has effectively

destroyed the immunity in any proceedings involving

institution of proceedings.

So that if one goes back to the passage which

commences at G on page 262, which appears to be the

nub of the reasoning of the Court of Criminal

Appeal, the court in effect says - I will just read

that briefly, at G:

The respondent in the present case conceded, as he had to, that he would be so liable if

the prosecution had been based upon a false

claim made in a letter of demand served before
action dishonestly seeking the payment of

compensation ..... 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 -

Jamieson 4 1/10/92

Just pausing there, in my submission there is a clear distinction to be drawn between what happens

prior to the commencement of the proceedings and what happens at the moment of instigation of the

proceedings.

In the civil cases in which the immunity is

considered, the scope of the immunity is

considerably broader. For example, there are cases

where the immunity has in fact applied to any pre-

existent conspiracy between, for example, police

officers preparing reports to the DPP or, for

example; to an interview prior to giving evidence

and clearly, for example, in defamation a letter of demand sent prior to action would be regarded in an

entirely different way than the same statement made

in a statement of claim. If this distinction is

drawn then in effect it destroys the immunity and

the only basis, in my submission, for drawing such

a line of argument is to be found by analogy with

the malicious prosecution cases.

That appears to be what Mr Justice Hunt has

done in Beydoun. The malicious prosecution cases

provide a very poor analogy and the reason why they
provide a very poor analogy is because malicious

prosecution can only ever get started if the

proceedings have been successfully concluded in

favour of the party who brings the proceedings for

malicious prosecution. Now, in a case such as this

where the plaintiff institutes the proceedings
seeking damages and it is alleged that the very

bringing of the proceedings is a fraud, the

plaintiff's claim is effectively stopped dead. And

what, for example, if the plaintiff continued with

her claim. What if she continued with her claim

and went to judgment and won her case. Can the

offence only ever be an inchoate crime? Because if

she goes on and wins her case, then what happens to

the outstanding and proposed crime of attempt to

obtain by false pretenses.

On the other hand, if she is prosecuted and

convicted then of course her case has been brought

to a halt for other reasons. If the immunity

exists then there are, in my submission, very

strong reasons for saying that the Court of

Criminal Appeal has misdefined how that immunity

applies and those reasons are principally to be

found in public policy considerations. And those

considerations are fundamentally that litigants can

have their ability to - the orderly conduct of

civil proceedings can simply be thwarted by the

bringing of criminal prosecutions in relation to that very case. There are public administration

crimes which can apply and they can safely cover

any criminality that applies. Historically, those

Jamieson 1/10/92

public administration-type offences were always

brought by the Crown. But there would be nothing

to stop, and historically there has been nothing to

stop, individuals from charging another person with

obtaining by false pretences or any other crime

that can be so regarded.

DAWSON J: Why should we interfere at this stage? This is

an interlocutory proceedings and this Court sets

its face against interfering at an interlocutory

stage.

MR GAME:  Your Honour, I accept that, but if the Court

interferes, there will be no case to be had,

because there is no crime.

DAWSON J: If you are correct; but on the other hand, if it

goes to trial there still may be no case to have.

MR GAME:  Your Honour, the fact is that there are a number

of these cases now, and a number of cases in the

wings, as I understand it, awaiting on the result

in this particular case, as to whether or not they

would proceed.

DAWSON J: It would not be a long trial, would it?

MR GAME:  No, Your Honour, but the reason - I accept that it

is exceptional to grant special leave in relation
to interlocutory appeals, but this is a case where,

if the submissions that I put are right, and it is

my submission that very important questions do

arise, then this case stops and so do all other

cases based on similar allegations.	So that is the
reason I submit that it should - - -

DAWSON J:  I am not sure I follow that. If you are right,

but the case goes to trial -

MR GAME:  No, no, if I am right - - -

DAWSON J:  And you succeed in this Court?

MR GAME:  Then the case stops. There will not be any case.

DAWSON J: Yes, that is true. But if you are wrong, then

proceedings have been unnecessarily held up.

MR GAME:  Your Honour, if I am wrong then - yes, proceedings

have been unnecessarily held up, but there is, in

my submission, a matter of general importance which

has to be clarified. The way in which it is likely

to come before the court in any case is by an

application to quash an indictment. It is the

proper way in which to ventilate this particular

submission. Because if the submission is right,

the very having of the case is an event which

Jamieson 6 1/10/92

should not take place, in effect. So this case

involves different considerations than

interlocutory appeals which are brought, in effect,

to ventilate issues that arise in the course of

trials; for example, separate trial, applications

and the like.

So, in my submission, this is pre-eminently an

appropriate case for a grant of special leave,

notwithstanding the fact that it is an

interlocutory application.

I should say that according to my researches

there are no other cases, apart from Beydoun's

case, in which it has been suggested that this

offence exists and it would be a remarkable thing

if it had been seriously contemplated that it did

exist, that it had not been canvassed. The reason

for that is that all of the cases are about civil

litigants attempting to conduct, in effect,

collateral attacks on judgments unfavorable to them

in which they assert such things as conspiracy to

defraud, slander and the like, and it has been said

time and time again that those proceedings cannot

be brought and that the appropriate remedy is for

the Crown to bring proceedings in perjury.

Now, if a possibility that proceedings could

be brought by way of a charge for conspiracy to

defraud and the allegation, for example, in Cabassi

v Vila, which is a decision of this Court in 1940,

if it seriously contemplated that that was a

possibility, then no doubt the issue would have

arisen before today, because that would have

provided the means of collateral attack on the

judgment complained of. So that it is correct to

say that there is an absence of direct authority in
favour of the propositions I have put. It is also

correct to say that there is a total absence of any authority in support of Beydoun. There are a large

Lord Mansfield in Skinner's case have been approved number of dicta in which the remarks of	in their entirety, both in relation to civil and
criminal proceedings. There are a vast number of cases which say that the appropriate remedy is in prosecution for perjury. There are no cases that I
have been able to find or that are referred to in Beydoun's case which suggest that a prosecution
such as this can be brought.

TOOHEY J:  Mr Game, when you say that there are statements

that suggest the proper remedy is prosecution for

perjury, that presumably is in relation to cases

that have progressed to a point where sworn

evidence has been given.

Jamieson 7 1/10/92

MR GAME:  Yes, Your Honour, but there can be a prosecution

for perverting the course of justice or attempting

to pervert the course of justice and Vreones' case

is just such a case where, in effect, what the

parties did was conspire to deceive an arbitrator

in effect by a fraud and that was charged as

attempting to pervert the course of justice, not as

attempting to obtain by false pretenses. I have

already made this point, but this crime which is

charged could only ever be an inchoate crime.	One
could never charge obtaining by false pretenses

because, as I have said, if Brugmans and Jamieson,

for example, were able to go to judgment, won their

case, then it would be an abuse of process a la

Hunter v The Chief Constable to conduct a

collateral attack on that judgment by way of a

prosecution for fraud. The very considerations

which apply in relation to conducting collateral

attacks on criminal proceedings by civil

proceedings apply a fortiori to this situation.

TOOHEY J: But you are not suggesting, are you, that had no

prosecution been brought before the completion of

the civil proceedings, and assuming those

proceedings to have proceeded to a conclusion in

favour of the plaintiff, that criminal proceedings

would not then have lain?

MR GAME:  Not for this crime, but criminal proceedings could

clearly lie for attempting to pervert the course of

justice or perverting the course of justice,

contempt or perjury, and those are public

administration crimes historically brought by the

Crown.

TOOHEY J: What about obtaining; not attempting to obtain

but dishonestly obtaining money by deception?

MR GAME:  In my submission, based on the judgment, that

would be an abuse of process. To prosecute an

individual based on their having successfully

obtained a judgment, in my submission, that would

be an abuse of process and would - it is difficult

to say what the - - -

TOOHEY J:	You mean while that judgment stood?
MR GAME:	Yes, while that judgment stood, and there are a

number of cases which say that you cannot blow away

a judgment by a side wind with other cases, and

that is in effect what would be done. It would be

exactly the same as what occurred in the High Court

decision of Cabassi v Vila which was the case where

a lady alleged that she had been assaulted by a

defendant.	He said that she had fallen out of a
window and broken her jaw.	The High Court in that

case - if I could take the Court to the judgment of

Jamieson	1/10/92 Justice Williams - Mrs Cabassi having lost her case
then sought to bring a proceedings - - -

TOOHEY J: At which page?

MR GAME:  At 64 CLR page 146. She then sought to bring

proceedings alleging in her statement claim a

conspiracy to cheat and defraud. This Court held

that such an action was not maintainable. While

the judgment stood it could not be blown away by a

side wind. At page 149 the appropriate remedy was
in perjury and the right to bring the prosecution

in perjury was vested in the Crown. This being

entirely a question of public policy - and the

passage which I was seeking to read before is

page 148 at about point 5:

While the judgment stood no averment could be

permitted against it, otherwise the judgment

would be "blowed off by a side wind".

Towards the bottom of the page:

In all such cases -

and this is a reference to malicious prosecution -

it is essential that the plaintiff shall be

able to allege in his statement of claim that

the proceedings terminated in his favour.

So if Brugmans and Jamieson went on with their

cases, won their cases, while that judgment stood

they could not be found guilty of fraud, in my

submission.

TOOHEY J:  Or of any offence in connection with the

proceedings?

MR GAME:  They could be found guilty - that may raise other

issues, Your Honour, but presumably they could

could still be charged with attempting to pervert	still be charged with perjury, presumably they
the course of justice. But other considerations
would apply in relation to a determination as to whether or not it would be an abuse of process for
those proceedings to continue and that would
depend, in my submission, entirely on what the
particulars of the allegations of the alleged
perjury or the alleged perverting the course of
justice was in the circumstances of the particular
case.

But, for example, if the allegation - if they

succeeded in their claim in an allegation that

Brugmans was the driver of the vehicle then, in my

submission, it would be an abuse of process to

Jamieson 9 1/10/92

allege in perjury proceedings that she lied when she said that she was the driver of the vehicle. But as I said, that appears to raise some different

questions.

Really, the whole question comes down to a

question of public policy and the rights of

litigants to have their cases heard. To allow a

prosecution of this kind in these circumstances,

would totally thwart those rights to which

individuals are entitled. And if one speculated
for a minute and took a case, for example, where an
individual alleged against the police an assault

and the police then said, well we say that that

person is lying, we will charge that person with

attempting to obtain by false pretenses, all that

has happened in this example is that it has shifted

from the GIO to the police, then in effect the

civil proceedings brought by the individual are

stopped dead.

A question will arise, in any case, as to

which case should go first. If the malicious

prosecution analogy applies, then what takes place

in the civil proceedings would be evidence in the

criminal proceedings. So, if the civil proceedings

continue, then it would be evidence used in the

civil proceedings would be evidence that could be

used against the individual in the criminal

proceedings for fraud; a fraud which seeks to

strike at those very proceedings.

Now, that is entirely disruptive of people's entitlement to have their civil cases heard. There

is an armoury of offences which deals with misdeeds

by people in the course of such proceedings.

Fraud, in my submission, is not one of them and for

good historical reasons.

As I have said already, in my submission, the

judgment of the Court of Criminal Appeal does

nothing to assist in guidance as to what the basis

and extent of the immunity is; on the one hand it
says the immunity exists; on the other hand it

formulates a basis for it which effectively sweeps

it away. Those are my submissions, if the Court

pleases.

DAWSON: Yes, Mr Blanch.

MR BLANCH:  If the Court pleases. We would agree with my

friend that the essence of ·this question is a

question of policy, in the sense that there is an

identifiable policy which was identified by the

Supreme Court in New South Wales in the case of

Beydoun, relating to the conduct of civil

proceedings. However, as my friend concedes, there

Jamieson 10 1/10/92

is an accepted variation to that in the context of

even civil proceedings, because, as he says, there

is the law of contempt, the law of perjury and the

law of attempting to or perverting the course of

justice.

He says as to those matters that the reason

that those are matters that can intrude into

litigation are because they are matters that are

brought by the Crown and it is our submission that

is exactly the same reason that applies these are

proceedings that are brought by the Crown and there

is no public policy reason at all to expand an

exemption from criminal liability any further than

is absolutely necessary for the purposes that were

identified by the supreme court in Beydoun's case.

In that case at (1990) 22 NSWR 259, Mr Justice Hunt

defined the purposes as:

(1) that witnesses, parties, judicial

officers and advocates should be free (and

should feel free) to make statements in the

course of and with reference to judicial

proceedings without fear of subsequent

harassing and vexatious litigation; and

(2) (perhaps to a lesser extent) that there

should be no opportunity for relitigating the

same issues by means of subsequent actions.

GAUDRON J: But if you put it on the basis of an exception,

Mr Blanch, then there is no point in the

distinction made in Beydoun. I mean, it is a very

fine distinction, is it not, between service and,

for example, filing a statement of claim. To say

you can rely on the service, but not on what is

said.

MR BLANCH: Well, Your Honour, it is the commencement of the

action which is relied upon, bearing in mind - - -

GAUDRON J:  I thought it was the service. I thought there

was an admission to that effect.

MR BLANCH: Well yes, Your Honour, and the fact that

Mr Justice Hunt, I think, in Beydoun said that

there is no real distinction between the filing and

the service; the commencement of the action and the

service. There was another distinction, of course,

in the matter of Beydoun as opposed to Jurca, the

earlier matter, and that is that Jurca was

prosecuted under section 178BB of the

New South Wales Crimes Act, which was making a

statement, and Beydoun was prosecuted under

section 178BA which is attempting to obtain

financial advantage by deception, that being not

the statement, but the commencement of the action.

Jamieson 11 1/10/92

GAUDRON J: But we do not need to make these distinctions if

your submission that, if there is one exception

there might as well be another one, is correct.

MR BLANCH: Well, I can certainly make two submissions out

of that, Your Honour, and I have no problem about

doing that, because the fact of the matter is that

all of this comes down very much to a question of

what the policy of the law is, and going back to

what the policy of the law is, should litigants in

civil action be given - or proposed litigants in
civil ~ction be given the right to or an immunity

from criminal prosecution - - -

GAUDRON J: It is not talking about immunity from criminal

prosecution, as such; it is talking about immunity

from criminal prosecution of a particular kind.

MR BLANCH:  Yes, Your Honour, and my submission is that

there is no logic in distinguishing those two

things unless it be the logic of saying that if

litigation is brought by the Crown, then it is
litigation that can be brought and it is not denied

that perjury prosecutions or attempting to pervert
the course of justice or perverting the course of

justice - - -

GAUDRON J: Well there is a difference, is there not? I

mean, in one sense, your section 178BA and BB

offences can almost be regarded as offences against the person - we will treat the GIO as a person, for

that purpose. Whereas your other offences that

Mr Game has referred to are offences against the

administration of justice. Different

considerations apply; there are different elements

in the offence.

MR BLANCH: Well, that is certainly a distinction that can

be made, Your Honour, and I understand Mr Game to

make that distinction along that basis. Our

has any meaning in terms of applying this policy. submission is that that is not a distinction that If - - -

GAUDRON J:  It is at least as good as the distinction made

between this and Jurca.

MR BLANCH: Well, Your Honour, there are also policy reasons

in respect of this to allow action to be taken at

an early stage in these matters. If you had, for

example, an upsurge of fraudulent activity in

respect of the Government Insurance Office, for example, then it might be very much a matter of policy that that ought to be able to be prosecuted

at an early stage rather than waiting for a whole

lot of actions to get before the court to commence

and be concluded.

Jamieson 12 1/10/92

DAWSON J: But, what is protected is what is said in the

course of judicial proceedings and at the moment

the service has taken place, at that very instant,

the judicial proceedings have commenced. So that

what is said in the statement of claim is said in

the course of judicial proceedings, at that point.

MR BLANCH:  Yes, Your Honour.

DAWSON J: Well, if you concede that, then Beydoun must be

wrong, must it not?

MR BLANCH:  No, Your Honour; Beydoun was taken on the point

that it was the statement in the proceedings that

was the fraudulent statement for the purposes of

section 178BB. This charge is under
section 178BA, which is the putting into train of

the proceedings.

DAWSON J: Yes, but it is not the act of serving any old

thing that forms the attempt to deceive; it is the

service of the thing which says something.

MR BLANCH: Well yes, Your Honour, but it is our submission

that it is possible - - -

DAWSON J: It is not the service; you cannot separate it

from what is said, and what is said once service

takes place, at the instant service takes place, is

said in the course of judicial proceeding.

MR BLANCH: Well, it would be our submission, not,

Your Honour; that there is a point prior -

DAWSON J:  I mean, you could take the same thing; you could

say in defamation case, well it is not what was

actually said in the course of judicial

proceedings; the defamation was the publication at the time of service, and that does not seem right,

does it?

MR BLANCH:	No, Your Honour. But, it is our submission that there is a point prior to the relying on the
statement in the -

DAWSON J: Well there might be; the letter of demand or

whatever it might be, but what you are relying on

is the service of the document, which is the

commencement of the judicial proceedings.

MR BLANCH: Well the commencement of the proceedings,

Your Honour, yes. There is·arguably a point

between the commencement of the proceedings and the

service; they are not necessarily exactly the same

point.

Jamieson 13 1/10/92

DAWSON J: Well, commencement might be at an earlier stage

than service, in fact.

MR BLANCH: 

Yes.

DAWSON J: 

You are relying on service?

MR BLANCH: 

Yes, but there is a point of distinction before

the actual service and if the service is said to be
the same as the making of the statement, then we

would fail, of course. In our submission, it is

not.  The other matter, of course, is that this is

an interlocutory proceeding at this stage. If the

Court pleases.

DAWSON J: Yes, now how much can you make of that?

MR BLANCH: Well, Your Honour, of course, what my friend

says about the matter is true; there are a number

of these cases in train and if the Court were to

hold that Beydoun was wrong, many of those cases

would not proceed.

GAUDRON J: And the only relevant fact, I take it, is the

service?

MR BLANCH: In the other cases?

GAUDRON J:	No, no, in this case.
MR BLANCH:	No other fact is relied upon, no, that is so,

Your Honour; not in this case. Well that is the

matter that is identified in the judgment, yes.

DAWSON J: Yes, thank you, Mr Blanch. Mr Game.

MR GAME:  Just two points, both of which really have been

canvassed: the first is the other crimes to which

reference have been made are crimes about the

judicial process and that is entirely distinct from

the sort of crime that we are talking about here;

and the second point is that the distinction which

Mr Justice Hunt makes in Beydoun at page 262, as I

have said, is a distinction which, at the end of

the day, destroys the immunity.

TOOHEY J:  Mr Game, if the charge had been one of attempting

to pervert the course of justice, would the

arguments that you are presently advancing have any

application?

MR GAME:	Well I think not, probably, Your Honour.
GAUDRON J:	You would have to prove different things?
MR GAME:	Yes.

Jamieson 14 1/10/92

TOOHEY J: True.

DAWSON J:  But when you say it destroys the action, what you

are saying is well, if the law is that you cannot

be precluded from making allegations in the course

of proceedings, but can be, as it were, precluded

from commencing those proceedings, the guarantee

amounts to nothing. That is the way you put it?

MR GAME:  Yes. If the Court pleases.

DAWSON J: There will be a grant of special leave in this

case.

AT 2.55 PM THE MATTER WAS ADJOURNED SINE DIE

Jamieson 15 1/10/92