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Johnston v The Queen

Johnston v The Queen

Case [2019] NSWCCA 108 27 May 2019

Crime

Public Justice Offences

Causation

Mens Rea & Intention

Criminal Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Johnston v The Queen

Details

AGLC: Johnston v The Queen [2019] NSWCCA 108
Case: [2019] NSWCCA 108
Decision Date: 27 May 2019

CaseChat Overview and Summary

The case involved Johnston, the appellant, who was charged and convicted of perverting the course of justice under section 319 of the Crimes Act 1900 (NSW). Johnston was found guilty of an act intended to influence the outcome of a criminal trial. The matter was brought before the court of appeal to determine the correctness of the conviction. The appeal centred on the interpretation of the statutory provision and whether the act or omission in question had to have a tendency to pervert the course of justice.

The court was required to decide the essential elements of the offence of perverting the course of justice under the statute. Specifically, the court had to examine whether the act or omission must have a tendency to actually pervert the course of justice or if it was sufficient that the act was done with the requisite intent. The court needed to clarify whether the mere intent to influence the outcome of a criminal proceeding, regardless of the actual impact on the proceeding, was enough to constitute the offence.

In its reasoning, the court determined that the offence of perverting the course of justice requires more than just an act done with the intent to influence a proceeding. The court found that there must be a tendency for the act or omission to actually affect the course of justice. The court emphasised that the intent alone, without an act or omission that has a tendency to pervert the course of justice, is insufficient to satisfy the statutory criteria. The appeal was allowed, and Johnston's conviction was quashed as the prosecution had not established the necessary tendency of the act to pervert the course of justice.

The final orders of the court were that Johnston's conviction was quashed, and a new trial was not ordered as the appeal was allowed on the basis of the legal error identified by the court.

Orders