Johnston v The Queen

[2019] NSWCCA 108

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Johnston v R [2019] NSWCCA 108
Hearing dates:	3 October 2018
Decision date:	27 May 2019
Before:	Simpson AJA at [1]; Johnson J at [100]; R A Hulme J at [101]
Decision:	1. Leave granted to the appellant to raise Ground 2 of the appeal;  2. Appeal against conviction dismissed.
Catchwords:	CRIME — public justice offences — do an act with intent to pervert course of justice — Crimes Act 1900 (NSW) s 319 — elements of offence — whether act or omission said to constitute the offence must have a tendency to pervert the course of justice
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Public Justice) Amendment Act 1990 (NSW) Criminal Appeal Act 1912 (NSW) Judiciary Act 1903 (Cth)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Beckett v R (2014) 315 ALR 295; [2014] NSWCCA 305 Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 Cunneen v Independent Commission Against Corruption [2014] NSWCA 421 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Murphy v The Queen (1985) 158 CLR 596; [1985] HCA 50 R v Charles (Court of Criminal Appeal (NSW), 23 March 1998, unrep) R v Constantin Karageorge (1998) 103 A Crim R 157 R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 R v Machin [1980] 1 WLR 763 R v Murphy (1985) 4 NSWLR 42 R v Murray [1982] 2 All ER 225 R v Rogerson, Nowytarger and Paltos (1991) 51 A Crim R 359 R v Selvage [1982] QB 372 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38 The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 The Queen v Vreones [1891] 1 QB 360
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 May 1990 Peter Gillies, Criminal Law (3rd ed, 1993, Law Book Co)
Category:	Principal judgment
Parties:	Sarah Louise Johnston (Appellant) Regina (Respondent)
Representation:	Counsel: H K Dhanji SC/D Randle (Appellant) B K Baker (Respondent)   Solicitors: Anderson Boemi Lawyers (Appellant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2016/201961
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 December 2017 Before: Hoy SC DCJ File Number(s): 2016/201961

HEADNOTE

[This headnote is not to be read as part of the judgment]

After a social function, J, an off-duty sergeant of police, was pulled over for a random breath test. A probationary constable stationed at the same police station as the sergeant tried to administer the test. J prevented him from doing so. According to the constable, J asserted that it would be a conflict of interest for him to administer the test to her.

J was charged in the District Court with doing an act intending to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). The Crown case was that in conducting herself as she did, J used her rank and authority to avoid the administration of a breath test, and did so contemplating possible criminal proceedings against her for an alcohol related driving offence. The jury returned a guilty verdict, J was convicted, and sentenced to a term of imprisonment of 1 year and 4 months with a non-parole period of 1 year.

J appealed against her conviction on two grounds. First, she asserted that the directions given to the jury contained an error of law. She submitted that the trial judge erred in failing to direct the jury that it is an element of the offence under s 319 that the act or omission said to constitute the offence had a tendency to pervert the course of justice. Second, she submitted that the jury’s verdict was unreasonable and could not be supported having regard to the evidence. The core of this ground was a claim that the evidence was insufficient to negative the possibility that J had some intention other than to pervert the course of justice. As a ground raising a question of law, the first ground was brought as of right; as a ground raising a question of fact, or at best, a question of mixed fact and law, the second ground required leave (see s 5 of the Criminal Appeal Act 1912 (NSW)).

The Court (Simpson AJA, Johnson and R A Hulme JJ) granted leave to raise the second ground, but dismissed the appeal:

In relation to the first ground:

Per Simpson AJA, Johnson and R A Hulme JJ agreeing:

(i) While it was an element of the common law offence of perverting the course of justice that the act or omission in question had a tendency to pervert the course of justice, that is not an element of the offence under s 319. Accordingly, the trial judge did not err in the manner alleged: [21], [74].

The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38 considered.

R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 referred to.

R v Constantin Karageorge (1998) 103 A Crim R 157 considered.

R v Charles (Court of Criminal Appeal (NSW), 23 March 1998, unrep) considered.

R v Murphy (1985) 4 NSWLR 42 considered.

In relation to the second ground:

Per Simpson AJA, Johnson and R A Hulme JJ agreeing:

(ii) It was open to the jury to be satisfied beyond reasonable doubt that the Crown had proved that J had the necessary intention. Accordingly, this ground was also rejected: [97].

M v The Queen (1994) 181 CLR 487; [1994] HCA 63 applied.

Judgment

1. SIMPSON AJA: The question of law that arises in this appeal concerns the construction of s 319 of the Crimes Act 1900 (NSW). Section 319, inserted into the Crimes Act with effect from 25 November 1990, is in the following terms:

“319   General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.”

2. What is meant by “perverting the course of justice” is explained in s 312, in the following terms:

“312   Meaning of “pervert the course of justice”

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.”

3. The specific issue is whether an essential element of an offence under s 319 is that the act or omission said to constitute the offence, besides being intended to pervert the course of justice, also has a tendency to do so. The concepts are distinct. The word “tendency” does not appear in s 319, nor does any analogue. The appellant, nevertheless, contends, by reference to authority, that, unless the act or omission has such a tendency, conviction under s 319 is unsustainable.

The proceedings

4. On 12 September 2017 the appellant was arraigned in the District Court on an indictment that alleged:

“That [she] on 8 January 2016, at North Sydney in the State of New South Wales, did improperly use her rank and authority to avoid a breath test being administered to her with intent to thereby pervert the course of justice.”

5. The appellant entered a plea of not guilty to the charge. After a jury trial a verdict of guilty was returned and the appellant was duly convicted. She was sentenced to imprisonment for 1 year and 4 months commencing on 15 December 2017, with a non-parole period of 1 year, which expired on 14 December 2018. She has appealed against the conviction. She has not sought leave to appeal against the sentence.

6. The appellant raises two grounds of appeal against the conviction: the first asserts error of law in directions given to the jury, and is therefore (by s 5(1)(a) of the Criminal Appeal Act 1912 (NSW)) brought as of right; the second is that the verdict of the jury is unreasonable and cannot be supported having regard to the evidence. That is essentially a ground raising a question of fact, or, at most, a question of mixed fact and law, and requires leave (see s 5(1)(b)).

The Crown case

7. The relevant facts, for the purpose of the appeal, are not in dispute and can be outlined briefly. The appellant was a sergeant of police stationed at the North Sydney Police Station. She was one of two sergeants in a team of which Senior Constable Cameron Brooks was also a member. Probationary Constable Tugcan Sackesen was also stationed at North Sydney. On the evening of 8 January 2016 the appellant was off duty and attended a social function in North Sydney with work colleagues. She left the function to drive to her home on the Central Coast.

8. At that time Senior Constable Brooks was, with Probationary Constable Sackesen and others, conducting a random breath test operation on the Pacific Highway. Senior Constable Brooks signalled to the appellant to pull over for random breath testing. He greeted her, handed her an Alcolizer Test Unit, and asked her to count to ten. The appellant drove forward without complying with the request. She pulled into a lane in which Probationary Constable Sackesen was also administering tests on an Alcolizer Unit. Senior Constable Brooks told Probationary Constable Sackesen to test the appellant. Probationary Constable Sackesen walked towards the appellant and told her that she had been stopped for a random breath test. His evidence was that he was prevented from administering the test when the appellant began speaking.

9. The following is recorded in the transcript of the evidence given by Probationary Constable Sackesen:

“Q:   You said that the accused stopped you. How did she do that?

A:   She just interrupted me and said, ‘you’re not going to breath test me are you?’

Q:   Did you say anything in response?

A:   Yes, I said, ‘yes, sergeant I am’.

Q:   Did she say anything after you said that to her?

A:   Yes, she said, ‘no, because that would be a conflict of interest. Imagine if I blew over which I won’t because I’m not –

[There was an interruption by defence counsel with a request for the witness to slow down]

A:   That was, ‘no, because it would be a conflict of interest. Imagine if I blew over which I won’t because I’m not but imagine if I did, the awkward situation that would put you in. Do you understand what I’m talking about?

Q:   Are you able to tell the Court what kind of voice the sergeant used when she spoke to you?

A:   Yes, she was confident and stern.

Q:   What did you do, what was your response when she said those words to you?

A:   Nothing, I just paused.

Q:   Why did you pause?

A:   Because it made me doubt my knowledge. I was a bit confused at the time of what was being said.

Q:   Why did what she say [sic] cause you to doubt your knowledge?

A:   The manner in which it was said came across as a little bit aggressive to the point where I believed she was speaking the truth and I was in the wrong. And it intimidated me a little bit to the point where I thought I was in the wrong trying to breath test her as there was a conflict of interest because I did know her and what she was saying seemed to be the truth at the time.

Q:   Was there anything else about the situation that caused you to pause at that time?

A:   Other than I was taught to respect her authority and she’s a sergeant of police and I’m on my probationary period, with her years of experience, I thought what she was telling me to be, you know, legislation I had never heard of or policy or something along the lines of, because, I mean, at the Academy we are taught conflict of interest and –

…

Q:   Did the accused say anything more to you?

A:   Yes, after I paused she then continued and said, sorry, if I could just take a moment to recall. Yes, she said, ‘it’s a random breath test, so you don’t have to breath test everyone. If it’s family, friends or someone you know it would be a conflict of interest, do you get what I mean?’

Q:   Did you respond at that point?

A:   At that point I said, ‘Ok Sergeant.’

Q:   What then happened?

A:   She then drove off because the car started moving.”

The appellant was not breath tested.

10. Later that evening the appellant sent to a colleague (Sergeant Aylett) a text message which said:

“RBt on the highway. Not only did brooksy want to test me but Tugcan also. I declined and gave the pro a lesson on rbt and in the job etiquette.”

11. The following morning there was an exchange of text messages between the appellant and Sergeant Aylett as follows:

“Appellant:   A good night.

Sergeant Aylett: Had to laugh about your rbt experience lol. Was a good night.

Appellant:   Ha ha ha I was having a laugh too thinking I could have saved you all from chad, but then relieved I didn’t have that last beer.

Sergeant Aylett: Haha.”

12. It was the Crown case that, in conducting herself as she did, the appellant used her rank and authority to avoid the administration of a breath test and that she did so contemplating possible criminal proceedings against her for an alcohol related driving offence.

The trial

13. Evidence in the Crown case was given by Senior Constable Brooks, Probationary Constable Sackesen, and other members of the police force to whom those officers had spoken following the events of 8 January 2016. It is not necessary to recount that evidence. The jury plainly accepted the accounts given by them. The appellant did not give or call evidence.

14. At the close of the Crown case, defence counsel sought a verdict of acquittal by direction. The trial judge refused the application. The refusal to direct a verdict of acquittal is not the subject of any ground of appeal.

15. The trial judge provided the jury with a written direction entitled “Essential Elements of Offence”, which was in the following terms:

“• Please refer to the Indictment ‘MFI-1’

COUNT 1 – the essential elements, ingredients or facts that the Crown has to prove BEYOND REASONABLE DOUBT are:

1.   The accused did any act or made any omission.

2.   with intent in any way to pervert the course of justice.

‘pervert the course of justice’ includes:

obstructing, preventing, perverting or defeating the course of justice.

‘course of justice’ includes:

deflecting a police investigation where it is contemplated that legal proceedings are a possible consequence of that investigation.”

16. The trial judge declined a request by defence counsel to include in the direction a requirement that the Crown also prove that the alleged acts of the appellant had a tendency to pervert the course of justice. It is that refusal that is the basis for the first ground of appeal.

17. The trial judge gave oral directions consistent with his ruling and with the content of the written directions.

The grounds of appeal

18. As indicated above, the appellant relies on two grounds of appeal, pleaded as follows:

“1.   The learned trial judge erred in failing to direct the jury that they had to be satisfied that the act of the accused had a tendency to pervert the course of justice.

2.   The verdict of the jury was unreasonable and cannot be supported having regard to the evidence.”

Ground 1: is a tendency to pervert the course of justice an element of an offence against s 319 of the Crimes Act?

19. It will be observed that although no proceedings of any kind were current at the time of the conduct the subject of the charge, no ground of appeal is directed to an assertion that there was no “course of justice” to be perverted. That is in accordance with established authority as will emerge from the discussion below.

20. The competing positions of the parties may be outlined briefly. The simple proposition advanced on behalf of the appellant is that a tendency to pervert the course of justice is an essential element of an offence against s 319, and that the failure of the trial judge so to direct the jury was an error of law. That was a proposition derived from the common law that was superseded on the enactment of s 319. The appellant maintained that the statutory formulation of the offence did not bring about any changes to the essential elements of the offence. The Crown did not dispute that proof of the offence at common law required proof, not only that the person accused intended, by act or omission, to pervert the course of justice, but also that the act or omission had a tendency to achieve that end. It argued, however, that that requirement was not carried over into the statutory formulation of the offence. Reference was made to a number of the authorities considered below.

Consideration

The offence of perverting the course of justice: at common law

21. Until 1990, in NSW, perversion of the course of justice, in various forms, was a common law offence. There is no doubt that at common law an element of the offence was that the act or omission alleged had a tendency to pervert the administration of public justice. That was additional to the requirement that the accused person intended to pervert the administration of public justice. That appears to have had its genesis in the judgment of Pollock B in The Queen v Vreones [1891] 1 QB 360 at 369. Vreones was a case in which an accused person was found to have manufactured false evidence by tampering with wheat samples expected to be used in evidence in an arbitration in an attempt to mislead (or with the intention of misleading) a “judicial tribunal”. The evidence was not in fact used, but the Court of Crown Cases Reserved held that those facts were sufficient to justify a conviction. The Chief Justice, Lord Coleridge, said:

“I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour; and though I should myself have thought so on the grounds of sense and reason, there is also plenty of authority to shew that it is a misdemeanour in point of law. …

The offence of the defendant was completed, so far as his act could complete it, when he sent to London the samples which might or might not be used in the arbitration.” (at pp 367-368)

22. Stephen, Charles and Lawrance JJ agreed with the Chief Justice. Pollock B gave his own short reasons for reaching the same conclusion, saying, inter alia:

“The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.” (at p 369)

23. No other member of the court explicitly agreed with that categorisation of the offence. Nevertheless, ninety years later, in R v Selvage [1982] QB 372, the Court of Appeal said:

“The correctness of the sentence: ‘the real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice’ has never been doubted since it was first uttered.” (at p 384, italics in original)

The Court referred to a number of cases which had adopted the definition propounded by Pollock B.

24. One of these cases was R v Machin [1980] 1 WLR 763. Mr Machin was charged with attempting to pervert the course of public justice by fabricating evidence that he had been assaulted by police, and by inciting others to give false evidence in relation to certain charges preferred against him. Mr Machin had dictated to police two statements that incriminated him in offences of permitting an uninsured vehicle to be driven on a public road. He then went to considerable lengths to fabricate evidence that the admissions had been brought about by improper police conduct: he had a friend punch him in the eye, causing swelling; he had photographs taken of the swollen eye; he told his wife and others that he had been assaulted by police and had his wife lodge a complaint against police. He made similar allegations to a hospital doctor and to a solicitor. He asked his friend to give evidence that police had caused his injury. His friend initially agreed to do so, but subsequently withdrew from the arrangement.

25. Notwithstanding the rather elaborate preparations, the plan was not, in the end, pursued. Mr Machin did not use the fabricated evidence. He was, nevertheless, charged with, and convicted of, attempting to pervert the course of public justice. He appealed against the conviction.

24. It seems that, on appeal, on behalf of Mr Machin, two arguments were raised against the conviction. The first was that the facts alleged did not go far enough to constitute an attempt; the second was that the acts alleged against him were insufficient to establish a tendency to pervert the course of justice. The Court of Appeal rejected both arguments.

25. With respect to the latter argument, the Court said:

“The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice … The common law recognises a wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs.” (at pp 766-7, italics added)

28. The court agreed that the use of the word “attempt” was misleading, but said that it was nevertheless convenient for use in cases where:

“... it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice. To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency.” (at p 767, italics added)

29. That the plan was not ultimately pursued did not deprive Mr Machin’s conduct of its quality of having a tendency (as that concept was explained) to lead to a miscarriage of justice.

30. R v Murray [1982] 2 All ER 225 was, like the present, a case involving the breath-testing of a motorist. The motorist, Mr Murray, refused to take part in a breath test, and was taken to a police station where he agreed to give a specimen of blood. In accordance with appropriate procedure, one half of the specimen was retained by police for analysis and he was given the other half in order to have the opportunity to have his own testing done if he so wished. The allegation was that he tampered with the sample so that it yielded a lower concentration of alcohol than the sample retained by the police. He submitted the tampered specimen to an analyst. The analyst realised what had happened and notified Mr Murray’s solicitors, so that the adulterated specimen was not the subject of evidence in Mr Murray’s prosecution for an offence (the report does not indicate whether such a prosecution occurred). Eventually, Mr Murray was charged with and convicted of attempting to pervert the course of justice by altering the specimen, knowing that the resulting analysis was likely to be used in his defence against a charge of driving whilst there was present in his blood more than the prescribed quantity of alcohol.

31. Mr Murray appealed against the conviction. The appeal was dismissed. The Chief Justice, Lord Lane (delivering the judgment of the court) quoted from the decision in Machin, and added:

“So what the learned judge in the present case had to decide was whether there was evidence which was fit to go before the jury, that first of all this man had the intention to pervert the course of justice (which plainly he did), but, much more importantly, whether there was evidence that what he did had a tendency to have that effect. In the view of this Court, there must be evidence that the man has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done ‘without more’ might lead to injustice. It seems to us that he does not himself have to introduce the evidence into the process of justice, as counsel for the appellant invites us to rule. It is sufficient that what he has done ‘without more’ has a tendency to produce that result.

To establish a tendency or a possibility, you do not have to prove that the tendency or possibility in fact materialised. If it did, and if there is evidence of that, then of course that is powerful argument to show that there was a tendency; but it is not necessary.” (at p 228, italics added)

32. At least until 1992 the law was no different in NSW. Attempts or agreements to pervert the course of justice were offences under common law; a tendency to have the effect of perverting the course of justice was an element of the offence, proof of which was necessary for a successful prosecution.

33. In The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25 three accused were convicted of conspiring to pervert the course of justice. The evidence upon which the prosecution relied to support the charge was that the accused had fabricated evidence with the object of frustrating or diverting a police investigation into the possible commission of a crime. The conduct upon which the Crown relied was alleged to have taken place in 1985 and 1986. At first instance, each accused was convicted. Appeals to this Court were successful on the basis that the Crown had failed to identify a specific crime that had been committed, or which investigating police suspected or believed had been committed: R v Rogerson, Nowytarger and Paltos (1990) 51 A Crim R 359. This Court held that the offence of attempting to pervert the course of justice by the fabrication of evidence having as its object the frustration or diversion of a police investigation into the possible commission of a crime could not be established in the absence of proof by the Crown of:

“… the general nature of the charge, which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged.” (p 369)

34. The Crown was granted special leave to appeal to the High Court. In respect of two of the accused the Crown appeal was successful to the extent that the matters were remitted to this Court for determination in accordance with the High Court’s rulings. McHugh J (who dissented in the result) identified the principal question for determination in the High Court as:

“… whether, when [a charge of conspiracy to pervert the course of justice] is based upon an agreement to fabricate evidence designed to interfere with or deflect a police investigation into the possible commission of a crime, proof of the offence requires, … ‘evidence that an identifiable crime has been committed, or evidence that the police conducting the investigation have before them some evidence which raises a suspicion or belief that an identifiable crime has been committed.’” (at p 295-6)

35. The issue before the Court was not the elements of the offence of attempting to pervert the course of justice, but the specificity with which it was necessary for the Crown to delineate the offence investigation of which was alleged to have been intended to be frustrated. However, there are passages in the judgments that are apposite to the elements of the offence.

36. Mason CJ adopted the definition of the offence of attempting to pervert the course of justice from Vreones and said:

“It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency. …

Accordingly, I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.” (at pp 277-278, internal citations omitted, italics added)

37. Brennan and Toohey JJ said:

“The prosecution had to prove that, if the relevant act was done pursuant to the conspiracy and in the circumstances contemplated by the conspirators, it would have the effect of perverting the course of justice.

Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator’s knowledge of the nature of the relevant act is of critical importance. An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice …” (at pp 281-283, internal citations omitted, italics added)

38. In Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, Mr Meissner was charged with attempting to pervert the course of justice by improperly endeavouring to influence another person to plead guilty to a criminal charge. The offence was alleged to have been committed in late 1985 and early 1986. Mr Meissner was convicted. An appeal to this Court was dismissed. He was granted special leave to appeal to the High Court. The appeal was dismissed.

39. Brennan, Toohey and McHugh JJ discussed the nature of the offence. Their Honours said:

“A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. Attempting to pervert the course of justice is a substantive offence. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive.

… the two elements of the offence of attempting to pervert the course of justice are conduct which has the proscribed tendency and an intent that the course of justice be perverted.” (at pp 140-141, internal citations omitted, italics added)

40. Deane J said:

“The offence of attempting to pervert the course of justice has been authoritatively defined, in this Court and elsewhere, as ‘the doing of some act which has a tendency and is intended to pervert the administration of public justice’. That definition has the advantage that, while stressing the mental element of the offence (as one would anticipate in any definition of an ‘attempt’ offence; it makes plain that the offence is not committed unless the act which is done with the necessary intent can be objectively said to have a tendency to pervert the course of justice.” (at p 148, internal citations omitted, italics added)

41. The above review is sufficient to establish that while perversion of the course of justice remained a common law offence in NSW, it did not differ from the offence as it was understood in England, and, specifically relevant for present purposes, it incorporated an element of tendency.

42. It is, however, relevant to understand what was meant by “tendency”. That emerges from various passages in the judgments referred to. For example, in Machin, the Court referred to conduct:

“… which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurrs.” (at p 767)

43. The question was considered in R v Murphy (1985) 4 NSWLR 42. It is necessary to explain something of the history of those proceedings. The accused person was a Justice of the High Court. He was alleged to have used his position in an attempt to influence two judicial officers, lower in the judicial hierarchy, to act otherwise than in accordance with their duty. He was charged with two counts under s 43 of the Crimes Act 1914 (Cth), which provided:

“Any person who attempts in any way not specially defined in this Act, to obstruct, prevent, pervert, or defeat the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.”

44. After a trial, a jury returned a verdict of not guilty on one count and a verdict of guilty on the other. In accordance with s 72 of the Judiciary Act 1903 (Cth), the trial judge reserved certain questions for consideration of the High Court. At the same time, a question concerning the capacity of the facts alleged to support a conviction under s 43 was raised and removed into the High Court. That question (among others) was remitted by the High Court to this Court: Murphy v The Queen (1985) 158 CLR 596; [1985] HCA 50. The High Court (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ in a joint judgment) observed that s 43 was based upon an 1879 proposal in England that reflected the common law (at least insofar as an attempt to obstruct the course of justice is a punishable misdemeanour). Those questions were the subject of the judgment in this Court identified above.

45. One of the questions dealt with by this Court concerned what constituted a “tendency” to pervert the course of justice. On this issue the parties took opposing positions. On behalf of the appellant (Murphy) it was contended that “tendency to pervert the course of justice” should be equated with “likelihood”. The Crown supported the approach taken by the trial judge, that, for tendency to be established, the conduct in question must create a possibility or risk that the course of justice will be perverted (at p 48).

46. This Court rejected both contentions. It referred to Vreones, but said:

“In R v Vreones it was affirmed that conduct will amount to such an attempt if it has the tendency to pervert. We think that the sense in which the word tendency is there used is more readily grasped by examining the context of that decision rather than by considering the sense in which the word tendency is used in other branches of the law which are affected by different considerations.

[The Court outlined the nature of the conduct charged in Vreones]

Johnson’s English Dictionary (see for example the 1755 and 1816 editions) defines ‘tend’ as ‘to be directed to any end or purpose’. Similarly the first meaning given by the Oxford English Dictionary for ‘tendency’ is, in part ‘… leaning … or bent toward some object, effect, or result’. In our opinion tendency to pervert as used by Pollock B did not mean tending to achieve the end of perverting but tending to fulfil the purpose of perverting. At all events the conduct in R v Vreones was sufficient to support the conviction of acting with intent to pervert the course of justice not primarily because of any relation it bore to possible or probable consequences but because of its relation to the accused’s intentions or purposes.” (at pp 48-49, italics added)

47. The Court concluded:

“We see no reason why in many cases the conduct which forms the second ingredient of the offence should not be put to the jury in the statutory language viz did the accused, having the requisite intention, make an attempt to pervert the course of justice? Where appropriate the jury should also be told that mere preparation is not sufficient; there must be an actual attempt which of necessity goes beyond mere preparation. Whenever further description of attempt is needed, it will suffice to say that conduct will amount to an attempt if it has a tendency to fulfil the guilty intention, that is to say if it is a step directed to or aimed at fulfilling that intention. Whether the conduct has a prospect of producing a perversion of justice is not a necessary element of the offence.” (at pp 50G-51B, italics added)

The offence of perverting the course of justice: under statute

48. In 1990 a decision was taken to “rationalise and reform the law concerning offences involving interference with the course of justice”: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 May 1990 at 3691, the Honourable John Dowd, Attorney-General. The result was the introduction into the Crimes Act of a new Part 7, under the general heading “Public Justice Offences”. This was achieved via the Crimes (Public Justice) Amendment Act 1990 (NSW), Sch 1. Division 2 of Part 7 of the Crimes Act, in which s 319 appears, deals with “interference with the administration of justice”. By s 341, (which is in Division 5), a number of common law offences were abolished. Some of these are:

• the offence of perverting the course of justice;

• the offence of attempting or conspiring to pervert the course of justice;

• the offence of attempting to pervert the course of justice by assisting a person to avoid arrest;

• the offence of persuading a person to make a full statement to police to mislead them in their investigation;

• the offence of perjury.

49. In the Second Reading Speech introducing the Bill, the Attorney-General said:

“At present there is no comprehensive statement of the law relating to public justice offences. The law is fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties. Common law offences have no specific penalty provided and the exact limits of these offences are sometimes difficult to establish.

…

A general offence of perverting the course of justice is also included in Chapter 2. It has been necessary to include this offence as, no doubt, offenders will find particularly devious ways of perverting the course of justice that are not covered by any of the specific offences in the bill. It is intended that this offence will cover such situations.

…”

50. Part 7 is in three substantive Divisions – “Administration of Justice”, “Judicial Officers, Witnesses and Jurors”; and “Perjury and False Statements”. (Divisions 1 and 5 contain, respectively, definitions and miscellaneous provisions). The history of Part 7 was recounted, and its provisions were subjected to searching analysis, in R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215.

51. The question which arises in this appeal is whether the statutory formulation of the offence excludes the element of tendency which was a feature of the common law offence. It was recognised, on behalf of the appellant, as it had to be, that there is no mention in the section of the concept of tendency.

52. There is nothing in the Attorney-General’s Second Reading speech that indicates any intention of the part of the legislature to depart from the established meaning of the common law offence of perverting the course of justice. Equally, there is nothing in the speech, nor in the text of s 319, or any other provision of Part 7, that indicates that the statutory formulation of the offence was intended to be no more than a reproduction of the common law offence.

53. Both parties referred to the decision of this Court in R v Charles (Court of Criminal Appeal (NSW), 23 March 1998, unrep) although their perspectives on it were very different.

54. Mr Charles was charged under s 327 of the Crimes Act with an offence of perjury, and under s 319 with doing an act with intent to pervert the course of justice. Both charges arose in the context of a coronial inquest into the death of an elderly woman. The first count alleged that Mr Charles had given knowingly false evidence at the inquest. The second count was more complicated. It concerned an allegation that Mr Charles had “prevailed upon” another person (Ms Marshall) to give false evidence at the inquest, specifically about the number of occasions on which she had met him. During the trial it emerged that it had not been the intention to call Ms Marshall at the inquest and, over opposition, the trial judge permitted an amendment to the indictment to be made to include an allegation that Mr Charles had “prevailed upon” Ms Marshall to give false information to police. The “false information” concerned the number of times he had met Ms Marshall.

50. Mr Charles was convicted on both counts. He appealed to this Court. One issue on the appeal was whether the evidence was capable of sustaining the convictions. Side issues emerged, such as whether the amendment to the indictment ought to have been permitted. What is clear from the three separate judgments given is that no question was raised concerning a requirement that an act charged as an attempt to pervert the course of justice must have a tendency to achieve that result. Rather, that s 319 offences replicated the common law in that respect was assumed. Each member of the court, in his own (different) way appears to me to have decided the case on the basis that the necessary tendency had not been proved – that is, that there was inadequate connection with the proceedings with which the Crown alleged Mr Charles had sought to interfere.

51. Gleeson CJ said:

“It was necessary for the Crown to establish that the conduct of the appellant in seeking to persuade Mrs Marshall, if interviewed by the police, to support his story that the two of them had only ever met on one occasion, was doing an act which had a tendency, and was intended, to pervert the administration of public justice …

After the Crown had established beyond reasonable doubt the primary facts relied upon concerning the communication between the appellant and Mrs Marshall, there remained substantial room for argument about whether the appellant’s conduct had the tendency, and was accompanied by the intention, which the Crown set out to establish.”

57. He concluded that, in the circumstances of that case, it was difficult to see:

“… what effect there would have been, upon the conduct of the inquest, of her supporting the false evidence which the appellant had given about the number of times they had met, other, of course, than to conceal the falsity of that piece of evidence.

58. James J referred to the decision of the High Court in Meissner, and considered that the facts adequately supported an inference that Mr Charles acted with the necessary intent; but concluded:

“… the capacity of the Coroner to perform his function under the Coroner’s Act in relation to the death of Mrs Collins could in no way be impaired by the Coroner being denied knowledge of the fact that the appellant had seen Mrs Marshall a few times socially in the first two weeks of March 1993.”

The result was that Mr Charles could not lawfully have been convicted on the second count. It is apparent that the final conclusion of James J was based upon the absence of proof of a tendency to affect the discharge of duty by the Coroner.

59. Barr J’s reasons for reaching the same result were expressed differently. He considered that the trial judge had misdirected the jury by stating “in absolute terms” that suggesting that a person give false information to a police officer during the course of an investigation amounts to perverting the course of justice. I read that, also, as a finding that error was established by a failure to advert (and draw the jury’s attention) to the necessary element of tendency.

60. All members of the court agreed that the conviction under s 319 should be quashed and a verdict of acquittal entered.

61. No member of the Court did other than proceed on the assumption that the statutory offence replicated the common law offence, and therefore incorporated an element of tendency. No issue to the contrary was raised, and, therefore, no such issue was considered.

62. That issue then arose directly in R v Constantin Karageorge (1998) 103 A Crim R 157 – unfortunately, without resolution. In that case a solicitor was charged under s 319. The facts alleged against him were that he had solicited a journalist to create media publicity in relation to a person who was charged with a criminal offence with a view to providing a basis for the adjournment of the trial. On appeal, it was argued that the conduct of the solicitor was too remote from the object of securing an adjournment to establish the necessary tendency.

63. Sully J cited statements of principles to be found in Peter Gillies, Criminal Law (3rd ed, 1993, Law Book Co) at 820-821 as follows:

“The New South Wales provision … refers to the offence there created as being one involving conduct intended ‘in any way to pervert the course of justice’. The expression ‘pervert the course of justice’, it has been seen, is defined in s 312 (for the purposes, inter alia, of s 319) as referring to ‘obstructing, preventing, perverting or defeating the course of justice’. The offence then, is clearly broad in scope. It does not in its literal terms require the intention or doing of an act which actually perverts justice, or one having this tendency. Rather, it requires simply that the conduct of the accused be accompanied by the intent to pervert justice. It therefore embraces (as does the common law offence) acts which fall short of actually perverting justice, and which merely have this potential. Indeed, the actus reus of the statutory offence is apparently even broader than the common law offence – any act intended by D to pervert justice will suffice, even if it does not on an objective view either pervert the course of justice, or even have the tendency to pervert justice (because of, say, D’s miscalculations in the matter).” (italics added)

64. In other words, Sully J accepted that the offence formulated in s 319 does not have as an element a tendency to achieve the object of perverting the course of justice.

65. I took a different view. Citing Meissner, I said:

“The offence with which the appellant was charged is not in any material way different from the offence there under consideration. Precisely the same description can be applied to an offence against s 319. It is the tendency of the act (together with the intention of the actor) that is decisive.”

66. Levine J declined to engage with the issue, but said:

“In the light of what was said in the judgment in Charles (supra) it does seem to me arguable that any ‘act’ relied upon by the Crown for the purposes of the prosecution of an offence under s 319 will not only have to be established as ‘intending in any way to pervert the course of justice’ but also to have that requisite tendency. That, in my view, as I have said, need not be decided in this case in the light of what I would otherwise consider to be an intentional act (the invitation to the journalist or request of him) and the clearly appropriate designation of the making of that request as an act having requisite tendency.”

67. The issue in R v Einfeld (supra) concerned the scope of the words “the administration of the law” in s 312. This Court held that those words are not to be accorded their literal meaning (which would include the exercise by Government bodies of their functions in applying and enforcing the laws of the State) but is confined to “the administration of the civil and criminal law by courts and tribunals”: at [97]-[99]. The Court noted (at [72]) a Crown submission that proof of an offence against s 319 does not require proof that the conduct had a tendency to pervert the course of justice, and referred to the judgment in Charles but noted (at [75]) that the argument on the appeal did not address that question. Accordingly, the Court also did not deal with that issue.

68. In The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38 the Crown alleged that Ms Beckett, a solicitor who was under investigation by Commonwealth and State authorities with respect to suspected revenue offences, had fraudulently created or altered documents and made false statements to investigators, with a view to concealing the true facts and thereby preventing her prosecution. She was charged with an offence against s 319 (and an alternative offence, which does not call for present consideration). A judge of the District Court dismissed a motion to quash the indictment or permanently stay proceedings on the ground that the prosecution was “foredoomed to fail” because no course of justice that could be perverted was in existence at the time of the conduct on which the Crown relied.

69. An appeal to this Court was allowed and an order was made that the indictment, so far as it alleged an offence against s 319, be permanently stayed: Beckett v R (2014) 315 ALR 295; [2014] NSWCCA 305. That was, essentially, because at the time of the conduct alleged, no proceedings were current. The High Court (French CJ, Kiefel, Bell and Keane JJ in a joint judgment, Nettle J in a separate judgment) held that it was erroneous to distinguish the s 319 offence from the common law offence on the basis that s 319 creates a substantive offence as distinct from an offence of attempt. That was the principal focus of the High Court decision. It has little or no bearing on the present case. However, their Honours went on to consider a further question raised, which does have a bearing. That concerned the elements of the s 319 offence. In that context, the plurality referred to the judgments in Karageorge, as the only instance in which the issue had (at that time) been raised. Their Honours also noted the judgment in this Court in Murphy and added:

“43. Whether, as the appellant [the Director of Public Prosecutions] submits, this analysis explains the drafting of s 319, it is clear that, on the trial of a count charging an attempt to pervert the course of justice under the common law or under those statutory provisions which mirror the common law, the prosecution must prove the objective tendency of the accused’s conduct to pervert the course of justice.

44.   It is also clear that whether the conduct is successful in this respect is irrelevant to criminal liability. An act or omission may tend towards perverting the course of justice notwithstanding that, in the event, it would not have achieved that result. Fabricating evidence with a view to averting a contemplated prosecution, as alleged here, may possess the requisite objective tendency even though any prosecutions for the predicate offence is doomed to fail for reasons that are unconnected with the accused’s act.” (italics added, internal citations omitted)

70. The decision in Beckett would be conclusive if it were the case that s 319 replicates, or “mirrors” the common law. The essential question for present determination is whether s 319 does “mirror” the common law. The answer to that question was not given in Beckett.

71. As indicated above, in Murphy (in the High Court) the Court noted that s 43 of the Crimes Act (Cth) reflected the common law, that is, that an attempt to obstruct the course of justice is a punishable misdemeanour. However, in Beckett, at [40], the plurality went further and accepted (based on Murphy) that s 43 was intended to reflect the common law offence (without qualification). Their Honours did not make the same finding with respect to s 319 of the Crimes Act.

72. The plurality in Beckett said:

“45. Commonly, it is the tendency of the accused’s conduct to obstruct, prevent or otherwise defeat proceedings, or contemplated proceedings, that is relied upon for the inference that the accused acted with the requisite intention. That is how the prosecution puts its case against the respondent here. For this reason, the appeal does not provide the occasion to consider the appellant’s larger proposition, which is that liability under s 319 attaches to any act done or omission made with the proscribed intention even if the act or omission has no rational connection to obstructing, preventing, perverting or defeating proceedings or contemplated proceedings before a judicial tribunal. That issue is better left to an occasion when it is presented in a concrete factual setting.

46. On the trial of a count charging a s 319 offence it suffices for the judge to instruct the jury in the terms of the section: the prosecution must prove that the accused did the act, or made the omission, and that, at the time of so doing, it was the accused’s intention in any way to obstruct, prevent, pervert, or defeat the course of justice.”

73. Nettle J, by contrast, considered that there is a third element to the offence that the act or omission had a tendency to pervert the course of justice (at [49]). His Honour also referred to the judgments in Karageorge, noting the differences of opinion expressed. He did not express a preference for either, although his conclusion that tendency is an element of the offence may be taken to be acceptance of the view I expressed.

Resolution

74. Notwithstanding the tacit support of Nettle J for my view in Karageorge I have come to the view that the appellant’s contention should be rejected. Proof of an offence against s 319 does not require proof that the conduct alleged to constitute the offence has a tendency to pervert the course of justice (although proof that it has or has not such a tendency is not irrelevant and may well be material in proof of intention, which is an essential element): see Beckett at [45]).

75. The starting point, as always, lies in the language of the legislation: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]; Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. As the authorities cited above demonstrate, at common law prior to the introduction of Part 7 into the Crimes Act, tendency to pervert the course of justice was an essential element of the offence. The drafters of the legislation cannot be taken to have been ignorant of the history of the common law offences; the Second Reading Speech of the Attorney-General indicates that the legislature was well aware of the inadequacies and deficiencies in the common law regime. The legislature took a considered decision to abolish many common law offences and create instead a statutory regime. In Einfeld, the statutory regime was categorised as a codification (although, in Cunneen v Independent Commission Against Corruption [2014] NSWCA 421, Basten JA expressed some doubt about whether that was the correct categorisation). In my opinion omission of the element of tendency from the statutory formulation of the offence has to be seen as considered and deliberate.

76. If that were insufficient, there are indications in the various judgments that lead me to the same conclusion. Before going to those, it is appropriate to acknowledge indications to the contrary. The most significant of these are the three judgments in Charles, and the judgment of Nettle J in Beckett. The difficulty with Charles is that it is clear that no argument was directed to the question, and each of the judgments proceeded on an assumption that the common law requirements applied.

77. In Beckett, although the plurality acknowledged the differences of opinion in Karageorge, it did not express a preference for either. Nettle J also identified the competing views, but withheld expressing a preference for either. As mentioned above, however, he accepted the proposition that tendency is an element.

78. Nettle J also gave significant weight to the judgments in Charles, saying:

“61. Ultimately, of course, the issue of whether tendency to pervert the course of justice is a necessary element of the offence created by s 319 turns on the words of the section. As appears from the decisions referred to, they are susceptible of more than one possible construction. Nonetheless, as matters stand, s 319 has been interpreted by a powerfully constituted Court of Criminal Appeal in Charles, as part of the ratio of the decision, as requiring the Crown to establish that the alleged conduct have tendency to pervert the administration of public justice. And, despite desultory obiter dicta in favour of the alternative view, Charles has stood for almost twenty years as determinative of the issue.”

79. As against those considerations, there is the judgment of this Court in Murphy (bearing in mind that Murphy was concerned with an offence against s 43 of the Crimes Act (Cth), which made an offence of attempting, other than as specially defined, to pervert the course of justice in relation to the judicial power of the Commonwealth). So far as the authorities cited to this Court go, Murphy is the only decision in which an attempt has been made to define or identify what is meant by “tendency” in this context. The Court considered that it meant, not “tending to achieve the end of perverting” but “tending to fulfil the purpose of perverting”. The distinction is subtle. In any event, that Court concluded:

“We see no reason why in many cases the conduct which forms the second ingredient of the offence should not be put to the jury in the statutory language viz did the accused, having the requisite intention, make an attempt to pervert the course of justice? Where appropriate the jury should also be told that mere preparation is not sufficient; there must be an actual attempt which of necessity goes beyond mere preparation. Whenever further description of attempt is needed, it will suffice to say that conduct will amount to an attempt if it has a tendency to fulfil the guilty intention, that is to say if it is a step directed to or aimed at fulfilling that intention. Whether the conduct has a prospect of producing a perversion of justice is not a necessary element of the offence.” (at pp 50-51)

80. During the course of argument on the appeal, the question was raised as to the distinction (if any exists) between doing an act or making an omission with intent to achieve a particular object (the language of s 319), and attempting to achieve that object (the language of the common law). No clear answer emerged (the question having been raised without notice, that is hardly surprising). On reflection, I find it difficult to discern any difference. That might indicate, contrary to my view, that s 319 is no more than a statutory formulation of the common law offence.

81. In Beckett, at [45], the plurality declined to engage, absent “a concrete factual setting” with whether an act or omission can constitute the offence “even if [it] has no rational connection to obstructing … a judicial tribunal”. However, in the next paragraph their Honours identified as sufficient instruction to a jury that the prosecution prove that the accused did the act or made the omission, and that at the time of so doing, it was the accused’s intention in any way to obstruct, prevent, pervert, or defeat the course of justice. Those are the two elements the plurality found constituted an offence against s 319. Only Nettle J found that a third element – tendency – is also part of the offence. The terms of [46] are the terms in which the trial judge directed the jury.

82. In these circumstances, I have come to the view that, notwithstanding the position I adopted in Karageorge, tendency is not an element of an offence against s 319. There was thus no error of the kind asserted in Ground 1 of the appeal.

83. It follows that, in my opinion, Ground 1 of the appeal should be rejected.

Ground 2: unreasonable verdict?

84. The test to be applied by the Court where a verdict of guilty is said to be unreasonable and not supported by the evidence has been stated many times and is well known. Perhaps the most commonly cited passaged is that from M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63, as follows:

“Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.”

85. That passage has repeatedly been cited in, for example, MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. Most recently in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, the High Court repeated that trial by jury is fundamental to the system of criminal justice in relation to allegations of serious crime and that setting aside a jury’s verdict on the ground that it is unreasonable is a serious step not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.

86. I bear those strictures in mind in what follows.

87. The argument advanced on behalf of the appellant under this ground had two components, said to be related. The first was that the conduct of the appellant on which the Crown case relied could not be shown (to the criminal standard) to have had a tendency to pervert the course of justice. In the light of the views I have expressed above in relation to Ground 1 of the appeal that component may be despatched without further ado. I would add, however, that, as will appear below, even if it were necessary for the Crown to establish tendency, the evidence was more than sufficient to achieve that.

88. The second component of the argument concerned the appellant’s intention. Put shortly, the argument was that the evidence was insufficient to negative the possibility that the appellant had some intention other than to pervert the course of justice. One alternative possible intention to which reference was made was abuse of the appellant’s position of authority over a junior officer (without any apparent motivation). A secondary argument was that the evidence was insufficient to prove that the appellant was aware that what she said to Probationary Constable Sackesen was factually incorrect and contrary to proper police procedures.

89. The first proposition that the evidence allowed of some intention other than deflecting Probationary Constable Sackesen from his duty is simply untenable. The appellant’s words are clear and unmistakable. An attempt was made, in the sentencing proceedings, to persuade the sentencing judge that Probationary Constable Sackesen had departed in some way from prescribed procedures by failing to ask the appellant if she had had any alcohol to drink in the preceding 15 minutes, and that the appellant’s conduct was to “remonstrate” with him and educate him in the correct procedures.

90. That attempt ignored that part of the conversation in which the appellant told Probationary Constable Sackesen that breath testing her would create a conflict of interest, and in which she invited him to consider the “awkward position” in which he would be placed if he administered the test and she returned a positive reading. Those words, so far as I can see, are susceptible of no interpretation other than the assertion of authority of a senior officer over a very junior officer in order to intimidate him in failing to do what was his duty.

91. If that were not enough, the text messages sent by the appellant thereafter to Sergeant Aylett are equally unequivocal:

“I declined and gave the pro a lesson on rbt and in the job etiquette.”

92. That can only mean that the appellant intended to direct Probationary Constable Sackesen to treat members of the police force, including herself, differently from other drivers so that they escaped random breath testing.

93. It was also not to be ignored by the jury, and cannot be ignored by this Court, that the evidence showed that the appellant had been for some hours at a social function at which alcohol was consumed. There was a good deal of evidence that she showed no sign of intoxication but that is not necessarily indicative of there being less than the prescribed concentration of alcohol in the blood.

94. Equally untenable is the submission that the evidence failed to reach the requisite standard to prove that the appellant was aware that what she said to Probationary Constable Sackesen was factually incorrect and contrary to proper police procedure. It would take substantial evidence to disturb the prima facie inference that warning Probationary Constable Sackesen of a potential conflict of interest (where no such conflict in fact existed) was known to the appellant to be factually incorrect. Again, the subsequent text message to Sergeant Aylett is strong evidence that the appellant was well aware of the true position.

95. Reliance was placed on one passage of the Remarks made by the judge on sentence. He referred to the appellant’s contention that, had she submitted to a breath test, the result would have been negative. In that context, he said:

“It also matters little whether the offender would have given a positive reading as to the presence of alcohol in her breath. Indeed, one view might well be held that against the background of her maintaining that she was not in any jeopardy of an adverse reading, makes her conduct more heinous, with no apparent motive other than an exercise of power and authority over junior officers, flexing and promoting a different standard to that applying to everyone else in the community, a standard she refers to as ‘in the job etiquette’.”

The argument was that this “squarely point[ed] to an intention consistent with innocence”.

96. How this could be so is not apparent. As the sentencing judge remarked more than once, it can never be known what blood alcohol reading the appellant would have returned had she taken the test; moreover, as the sentencing judge also said, it is irrelevant. All his Honour was doing was disposing of an argument put on behalf of the appellant. There is no finding that the appellant did not have present in her blood the prescribed concentration of alcohol.

97. In my opinion it was well open to the jury to be satisfied beyond reasonable doubt that the Crown had proved that the appellant had the necessary intention. I would reach the same conclusion, also to the criminal standard.

98. The appellant needs leave to raise Ground 2. The argument in support of the ground is so flimsy that it may be doubted whether leave should be granted. However, as there was a real question of law raised under Ground 1, I would grant leave.

99. The orders I propose are therefore:

1.   Leave granted to the appellant to raise Ground 2 of the appeal;

2.   Appeal against conviction dismissed.

100. JOHNSON J: I agree with the reasons and proposed orders of Simpson AJA.

101. R A HULME J: I agree with the orders proposed by Simpson AJA and with her Honour’s reasons. In relation to Ground 2, my agreement follows my own assessment of the evidence at trial.

**********

Amendments

25 November 2019 -

[22] “Charles” substituted for “Childs”

[39] “proscribed” substituted for “prescribed”

[40] “one” substituted for “we”

[42] “occurs” substituted for “occurs”

Decision last updated: 25 November 2019