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PALUMBO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 55

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 55
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:131/2013	Heard:	13 FEBRUARY 2014
Coram:	McLURE P PULLIN JA BUSS JA	Delivered:	17/03/14
No of pages:	15	Judgment Part:	1 of 1
Result:	Extension of time to appeal refused Appeal dismissed
Category:	A
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Parties:	ALESSANDRO PALUMBO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Appeal against conviction Conspiring to defeat the course of justice Plea of guilty False statements to the police to prevent prosecution for contravention of a red traffic control signal Whether the material facts alleged by the State and accepted by the appellant established, as a matter of law, the commission by the appellant of the offence of conspiracy to defeat the course of justice
Legislation:	Criminal Code (WA), s 135 Criminal Procedure Act 2004 (WA), s 21, s 23, s 83 Road Traffic Act 1974 (WA), s 102
Case References:	Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168 Chowdhury v Kenny [No 2] [2012] WASCA 35 Director of Public Prosecutions v Doot [1973] AC 807 Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31 Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132 Mikulic v The State of Western Australia [2011] WASCA 14 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 R v Trudgeon (1988) 39 A Crim R 252 Rainier v The State of Western Australia [2013] WASCA 119 The State of Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359 Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 Vella v The State of Western Australia [2006] WASCA 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PALUMBO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 55 CORAM : McLURE P

PULLIN JA

BUSS JA

HEARD : 13 FEBRUARY 2014 DELIVERED : 17 MARCH 2014 FILE NO/S : CACR 131 of 2013 BETWEEN : ALESSANDRO PALUMBO

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : FENBURY DCJ

File No : IND 1510 of 2002

Catchwords:

Criminal law - Appeal against conviction - Conspiring to defeat the course of justice - Plea of guilty - False statements to the police to prevent prosecution for contravention of a red traffic control signal - Whether the material facts alleged by the State and accepted by the appellant established, as a matter of law, the commission by the appellant of the offence of conspiracy to defeat the course of justice

Legislation:

Criminal Code (WA), s 135

Criminal Procedure Act 2004 (WA), s 21, s 23, s 83
Road Traffic Act 1974 (WA), s 102

Result:

Extension of time to appeal refused

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Ms A S Rogers

Respondent : Mr J Mactaggart

Solicitors:

Appellant : Abigail Rogers Barristers & Solicitors

Respondent : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168
Chowdhury v Kenny [No 2] [2012] WASCA 35
Director of Public Prosecutions v Doot [1973] AC 807
Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mikulic v The State of Western Australia [2011] WASCA 14
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361
R v Trudgeon (1988) 39 A Crim R 252
Rainier v The State of Western Australia [2013] WASCA 119
The State of Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359
Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122
Vella v The State of Western Australia [2006] WASCA 129

1 McLURE P: I agree with Buss JA.

2 PULLIN JA: I agree with Buss JA.

3 BUSS JA: The appellant has applied for an extension of time to appeal against conviction.

4 On 18 March 2003, the appellant was convicted, on his plea of guilty in the District Court before Fenbury DCJ, of one count in an indictment.

5 The count alleged that between 22 July 2001 and 16 November 2001 the appellant and Giorgio George Sannino conspired together to defeat the course of justice, contrary to s 135 of the Criminal Code (WA) (the Code), by concealing the true identity of the driver of a motor vehicle, so as to prevent the prosecution of the appellant for the offence of contravention of a red traffic control signal.

6 On 23 May 2003, at the sentencing hearing, his Honour imposed a fine of $3,000.

The application for an extension of time

7 The application for an extension of time is supported by an affidavit sworn 19 June 2013 by the appellant's lawyer, Abigail Sian Rogers. It is convenient to consider the merits of the ground of appeal before deciding whether an extension should be granted.

Section 135 of the Code

8 Section 135 of the Code provides:

Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

The primary judge's findings of fact

9 The primary judge described, in his sentencing remarks, the formation of the conspiracy between the appellant and Mr Sannino as follows:

[Y]ou knew you'd gone through that red light on that day, and you did indeed communicate with your nephew [Mr Sannino] who was in the Eastern States and asked him to take the [demerit] points. He had been pressing you to lend him money. He was short of money and employment. You had already lent him 200 and there was discussion about lending him another hundred and would he take the three points, $100 a point. He agreed to do so and then at that moment the offence is complete; that is, conspiracy being an agreement to carry out something unlawful (ts 34).

10 His Honour then elaborated:

The two of you agreed to do that to defeat the course of justice, the course of justice being you paying a fine on an infringement notice and absorbing or suffering the loss of points personally. I think it is of some significance to appreciate there was … no court case involved or contemplated at that stage. So that I think one needs to have some regard to the course of justice and the character of the course of justice, if you will, that is involved, but nevertheless it is the justice system designed to try and control people's behaviour behind the wheel.

So the offence was complete then (ts 34).

11 The primary judge noted that '[i]n the months that followed [the appellant] did nothing to get out of it or stop or cease or bring the conspiracy to light, but eventually, on being pressed by investigating authorities, [he] told them of [his] involvement' (ts 34).

The unchallenged facts and circumstances as revealed by the material before this court

12 The unchallenged facts and circumstances, as revealed by the material before this court, are more extensive than the facts and circumstances found by the primary judge in his sentencing remarks.

13 When the offending occurred the appellant was a lawyer who practised criminal law.

14 In the early hours of 23 July 2001, the appellant drove a motor vehicle through an intersection in contravention of a red traffic control signal.

15 At about 7.20 pm on 23 July 2001, the appellant communicated with his co-conspirator, Mr Sannino. It was agreed that Mr Sannino would falsely take responsibility for the contravention and would falsely accept the driver's licence demerit points for the offence. The appellant agreed to pay Mr Sannino $300 for his role in the conspiracy. This amount was to be paid by the cancellation of a $200 debt which Mr Sannino owed to the appellant and by the deposit of $100 into a bank account nominated by Mr Sannino.

16 On 28 August 2001, the police issued a traffic infringement notice in respect of the offence. The notice was issued on photographic evidence.

17 On 2 September 2001, the appellant completed and signed Part F of the traffic infringement notice, and on or about that date he returned the completed and signed notice to the police.

18 Part F of the notice, as completed and signed by the appellant, reads:

I, Alessandro Palumbo, of 16 Brearley Mews Hillarys declare that

[blocked out]

I wish to have the matter dealt with by a court and understand that I will be receiving a summons in due course. The address for service of the summons is

[address of the appellant's legal practice]

.

19 Text in Part F, which the appellant blocked out, contained an admission that he was the driver of the vehicle at the time of the offence.

20 Text in Part B of the notice, which commenced with a heading in bold type, 'Defend this infringement in court', was circled in pen by the appellant.

21 By completing, signing and returning the traffic infringement notice in the manner I have described, the appellant:

(a) declined to have the matter dealt with administratively under s 102 of the

Road Traffic Act 1974

(WA);

(b) informed the police that he wanted to have the matter dealt with by a court;

(c) acknowledged that he would be served with a summons in due course; and

(d) provided an address for service of the summons.

22 After the notice was returned, the police commenced investigating the offence before it proceeded to court.

23 On 13 November 2001, the police interviewed the appellant. He denied having been the driver of the vehicle and nominated three other people as potential drivers, one of whom was Mr Sannino.

24 On 15 November 2001, the police interviewed Mr Sannino. He denied having been the driver of the vehicle. Mr Sannino signed a written statement to that effect.

25 On 4 April 2002, the police interviewed the appellant again and informed him that his telephone calls had been lawfully intercepted in connection with an unrelated matter. Initially, the appellant declined to say whether he was the driver of the vehicle. Shortly after, however, he admitted having been the driver.

26 On 18 March 2003, the appellant pleaded guilty to the count in the indictment. On 23 May 2003, when the appellant appeared for sentencing, the prosecutor read to the court the material facts and tendered the prosecution brief in evidence. Defence counsel did not dispute any of the material facts. No objection was made to the tendering of the prosecution brief.

27 The primary judge did not mention, in his sentencing remarks, the appellant's conduct in relation to the completion, signing and return of the traffic infringement notice.

The ground of appeal

28 The sole ground of appeal alleges that a miscarriage of justice has occurred in that the material facts alleged by the State and accepted by the appellant did not, as a matter of law, establish the commission of the offence of conspiracy to defeat the course of justice, contrary to s 135 of the Code.

29 On 23 July 2013, McLure P granted leave to appeal on this ground.

The appellant's submissions

30 Counsel for the appellant relied on the decisions of this court in Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168 and Rainier v The State of Western Australia [2013] WASCA 119.

31 At the hearing, counsel for the appellant submitted that:

(a) the conspiracy between the appellant and Mr Sannino was 'completed' on 23 July 2001 (appeal ts 3); and

(b) the offence had 'come to an end' before the appellant completed, signed and returned the traffic infringement notice on or about 2 September 2001 (appeal ts 8 - 9).

The merits of the appeal

32 An appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. See Meissnerv The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J).

33 The circumstances in which a conviction based on a plea of guilty will be set aside were explained by Steytler P (Wheeler and Buss JJA agreeing) in Vella v The State of Western Australia [2006] WASCA 129 [26]:

It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice:

Borsa v R

[2003] WASCA 254 at [20];

Hogue v The State of Western Australia

[2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like:

Borsa

at [20];

Meissner v R

(1995) 184 CLR 132 at 157 per Dawson J and

Hogue

at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed:

Borsa

at [20] and

Harman v Ayling

, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5.

34 Steytler P's statement of principle was reproduced in substance by McLure P (Buss JA and Mazza J agreeing) in Mikulic v The State of Western Australia [2011] WASCA 14 [23]. See also Chowdhury v Kenny [No 2] [2012] WASCA 35 [8] (McLure P, Buss & Mazza JJA agreeing); Bowden [19] (Buss JA, McLure P & Mazza JA agreeing).

35 In Bowden and Rainier the appellants appealed against conviction. They had been convicted, on their pleas of guilty, of attempting to pervert the course of justice, contrary to s 143 of the Code. The appellants had committed motor vehicle traffic offences and had been served with traffic infringement notices. The appellant in Bowden falsely completed three notices by stating, relevantly, that at the time of each contravention another person had been driving her vehicle. She signed the completed notices and returned them to the police. The appellant in Rainier made false statements to the police for the purpose of obtaining the withdrawal of a notice.

36 In Bowden I discussed:

(a) the statutory scheme in Western Australia in relation to motor vehicle traffic offences and traffic infringement notices;

(b) s 143 of the Code and attempting to pervert the course of justice; and

(c) the decision of the Court of Criminal Appeal of New South Wales in Einfeld v The Queen [2008] NSWCCA 215; (2008) 71 NSWLR 31.

37 It is unnecessary to repeat that discussion.

38 In each of Bowden and Rainier this court was satisfied that the evidence was not capable of supporting an inference that:

(a) the appellant contemplated that the police would or might invoke the curial processes of a court to deal with her contravention of the traffic regulations; or

(b) the appellant's intention, in making false statements to the police, was to establish a false defence to an offence for which she would or might be prosecuted in a court.

39 In the circumstances, this court decided that the appellants in Bowden and Rainier could not, in law, have been guilty of the offence of attempting to pervert the course of justice.

40 The offence created by s 135 of the Code requires that:

(a) at least two people have made an agreement to obstruct, prevent, pervert or defeat the course of justice; and

(b) at least two of the people who have made the agreement intend that the course of justice be obstructed, prevented, perverted or defeated.

See Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 506 (Wilson, Deane & Dawson JJ); Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, 516 - 519 (McHugh J, Gummow J agreeing).

41 The notion of 'perverting' the course of justice involves nothing more than interfering adversely with its proper administration. See Meissner (141) (Brennan, Toohey & McHugh JJ), (148) (Deane J). It is the tendency of the conduct in question which is critical. A similar notion is connoted in this context by the word 'defeating'.

42 The expression 'the course of justice' in s 135 is concerned with proceedings or the exercise of jurisdiction in a court or competent judicial authority. The course of justice begins, for the purpose of s 135, when the jurisdiction of a court or competent judicial authority is invoked. See R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 276 (Mason CJ), 283 (Brennan & Toohey JJ), 302 - 304 (McHugh J). The course of justice ends, for the purpose of s 135, when 'the rights and liabilities of the parties have been finally determined and declared after "an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined" (R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, at p 374)': Rogerson (304) (McHugh J).

43 In Western Australia, a prosecution is commenced:

(a) on the day on which a prosecution notice is signed under s 23 of the

Criminal Procedure Act 2004

(WA)

by the prosecutor and either a justice of the peace or a prescribed court officer, or on the day on which the notice is lodged with the court in which the prosecution is being commenced (in the case of a prosecution notice signed under s 23 by an authorised investigator alone): s 21(3) of the

Criminal Procedure Act

; or

(b) (where the accused has not been charged with the offence in a court of summary jurisdiction or committed to a superior court on a charge of the offence) on the day on which an indictment that alleges the offence is lodged with a superior court: s 83 of the Criminal Procedure Act (in particular, s 83(1), s 83(2) and s 83(6)).

44 A police investigation into a possible offence against the criminal law is not part of the course of justice.

45 However, as Brennan and Toohey JJ observed in Rogerson:

Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice.

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, amounts to an attempt to pervert the course of justice.

It impairs the court's capacity to do justice in the actual circumstances of the case (283 - 284). (emphasis added)

Mason CJ expressed his agreement with those observations (279).

46 Similarly, Deane J said in Rogerson:

Police inquiries do not, of themselves, constitute 'the course of justice' for the purposes of the offence of perverting the course of justice.

It is necessary, in a case involving alleged conduct to divert or frustrate police inquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert

. It is true that one can point to statements in the cases emphasizing the closeness of the connexion between police investigations and pending, probable or possible curial proceedings in relation to the subject matter of those investigations (see, eg,

R v Selvage

[1982] QB 372, at pp 380 - 381;

R v Murphy

(1985) 158 CLR 596, at p 610). The closeness of that connexion may, in some circumstances, found a conclusion that conduct aimed at frustrating or misleading police investigations was directed to perverting the course of justice in pending or possible future court proceedings. Nonetheless, such statements should not be permitted to divert attention from the fact that the offence of conspiring to pervert the course of justice involves conspiring to pervert the course of justice in curial proceedings.

Where a conspiracy to mislead or frustrate police inquiries is involved, the offence of conspiring to pervert the course of justice will not be established unless it appears that a purpose of the conspiracy was, by misleading or frustrating the police investigation, to pervert the course of justice in pending or possible curial proceedings

(293 - 294). (emphasis added)

See also the views of McHugh J (301, 302, 304 - 305).

47 A person cannot, by recklessness, conspire with another to obstruct, prevent, pervert or defeat the course of justice. Also, a mere expectation, as distinct from an intention, that the course of justice be obstructed, prevented, perverted or defeated, is insufficient. See R v Trudgeon (1988) 39 A Crim R 252, 256 (Gleeson CJ).

48 Where the State must rely on inference to prove the intent of accused persons who have been charged with conspiring to obstruct, prevent, pervert or defeat the course of justice, by the doing of acts which tend to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least:

(a) an inference that the accused believed that the police might invoke the jurisdiction of a court or competent judicial authority or might invoke that jurisdiction unless the relevant acts deflect them; and

(b) a further inference that the accused either knew that the relevant acts would have a manifest tendency to obstruct, prevent, pervert or defeat the course of justice in a relevant respect or intended that the acts should have that effect.

See Rogerson (284) (Brennan & Toohey JJ).

49 Mere proof of an intention by the accused to deceive the police is insufficient. See Rogerson (284) (Brennan & Toohey JJ).

50 Although there must be an agreement and an intention to obstruct, prevent, pervert or defeat the course of justice, it is not necessary that the agreement and the intention be that all of the conspirators personally perform the acts by which the course of justice will be obstructed, prevented, perverted or defeated.

51 It is unnecessary, to support a conviction under s 135, that there be any unlawful or 'overt' acts performed or undertaken towards the implementation of the agreement. See The State of Western Australia vMarchesi [2005] WASCA 133; (2005) 30 WAR 359, where Steytler P (McLure JA agreeing) said:

The conspiracy comprises only the agreement:

R v Trudgeon

(1988) 39 A Crim R 252 at 254, per Gleeson CJ;

R v Carusi

(1990) 45 A Crim R 165; affd

Carusi v The Queen

(1990) 64 ALJR 657. It does not include the unlawful or 'overt' acts which are agreed upon:

R v Gudgeon

(1995) 133 ALR 379 at 389, per McPherson JA and Thomas J. Indeed, it does not matter for the purposes of the offence whether the agreement is or is not put into action. In

R v Rogerson

(1992) 174 CLR 268 at 279, Brennan and Toohey JJ said, of a conspiracy to pervert the course of justice, that, like any other conspiracy to commit an offence, it was complete without the doing of any act save the act of agreeing to pervert the course of justice. While overt acts will often be relied upon as a means of proof of the existence of a conspiracy, an overt act is not itself an 'element' of the conspiracy:

R v Winfield & Lipohar

(1997) 70 SASR 300 at 310, per Millhouse J, and, on appeal,

Lipohar v The Queen

(1999) 200 CLR 485 at 541 [140], 560 [189] and [190], per Kirby J (dissenting in the result), and 573 [227], per Callinan J;

Kamara v Director of Public Prosecutions

[1974] AC 104 at 119; and

Gummer v Commissioner of Police

[1995] 1 Qd R 346 at 354, per Pincus JA, with whom White J was in agreement [14].

52 As Steytler P noted in Marchesi, although the offence is complete upon the agreement being made, a conspiracy continues while its unlawful purpose is put into effect [15]. See Director of Public Prosecutions v Doot [1973] AC 807, where Lord Pearson said:

A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place … But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be (827).

Palumbo v The State of Western Australia

[2014] WASCA 55

17 MARCH 2014

PALUMBO -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 55