Pilkinton v Hatty

[1992] HCATrans 273

IN THE HIGH COURT OF AUSTRALIA

Registry No C12 of 1992

B e t w e e n -

STUART HEARNE PILKINTON

Applicant

and

FREDERICK GORDON HATTY

Respondent

Application for special

leave to appeal

BRENNAN J

TOOHEY J

McHUGH J

Pilkinton 1 25/9/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 25 SEPTEMBER 1992, AT 11.11 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC May it please the Court, I appear in

this matter with my learned friend,

MR S.F.C. WILCOX for the applicant. (instructed by

Abbott Tout Russell Kennedy)

MR M.F. ADAMS, QC:  If it pleases the Court, I appear with

my learned friend, MS J.A. WOODWARD, for the
respondent. (instructed by K.J. Crispin, QC,

Director of Public Prosecutions, Australian Capital

Territory)

BRENNAN J:  Mr Hughes, before you commence, I have a

certificate from the Deputy Registrar that reads as

follows:

The Director of Public Prosecutions for the

Australian Capital Territory, a respondent in

these proceedings, has filed an appearance

supporting the application for special leave to

appeal.

Is the Director of Public Prosecutions a

respondent?

MR HUGHES:  The respondent is the prosecutor. As I

understand it, the case is in charge of the

Director of Public Prosecutions - - -

MR ADAMS:  As I understand it, the Director is conducting

the matter on behalf of the informant. That is as

I understand it, though if there were formal

requirements, I must say I have not seen any such formal requirements, but I think the Commonwealth Director instructed counsel below and the matter

has continued in that way since the first appeal to

the Supreme Court of the Australian Capital

Territory.

BRENNAN J: Are there two directors involved in this now?
MR ADAMS:	No, there is only one, having regard to the

institution of the Office of Director of Public

Prosecutions for the Australian Capital Territory,

and he has taken over, so far as this matter is

concerned, what was hitherto the responsibility of

the Director of Public Prosecutions for the

Commonwealth.

BRENNAN J:  Do I take it that his interests are in your

hands?

MR ADAMS:  Yes, that is so, Your Honour. The form of the

letter, however, requires some clarification.	The
indication that we have given is that we do not
propose to submit to the Court, with respect to

that issue that relates to the question of intent,

Pilkinton 2 25/9/92

that that is not a matter in which this Court

should grant special leave.

In relation to the other issue, namely whether

Davern v Messel applies in these circumstances so

that the appeal to the Full Court of the Federal Court from the judgment of Mr Justice Foster was

open, we propose to submit that special leave

should not be granted by this Court in respect of

that question. I am not entirely sure that the

appearances filed in the registry make that clear,

but the matter has certainly been made clear

between the parties.

We have distinguished between the two

fundamental issues which form the grounds for the

application and have informed the applicant's legal

representatives that the view we take on the intent question, if I may so describe it, is that we would not oppose the grant of special leave, but on the

jurisdiction question, we would oppose a grant of

special leave.

TOOHEY J: It does not necessarily exhaust all the issues

though, does it, unless you are using intent to

wrap up all questions that relate to the commission

of the offence?

MR ADAMS:  I intend merely - the issue as to which we do not

oppose the grant of special leave is that

identified by the assertion that if Mr Pilkinton

honestly believed that he was bound to take the
course that he did and honestly believed that he
was not misleading the court in what he did, that

that would negate the intent necessary to

constitute the offence of attempting to pervert the

course of justice.

TOOHEY J: Well, those two elements themselves give rise to

a problem, do they not? The second appears to be a

contention of reasonable and honest belief in a

state of fact, and the first, I am not sure how you

would categorize it.

MR ADAMS:  Your Honour, whether it needs to be reasonable or

only honest, as Mr Justice Dawson said in He Kaw

Teh, I think might be a matter which would

ultimately be at issue, but the principal question

is whether he intended to mislead by what - one

question is whether he intended to mislead by what

he did.

BRENNAN J: Perhaps we should hear what Mr Hughes has to say

and the way in which he says it.

MR ADAMS: If Your Honour pleases.

Pilkinton 3 25/9/92

MR HUGHES:  Your Honours, because of the position taken by

the Director of Public Prosecutions for the

Australian Capital Territory, which was known to us

some time before we came here, there has been a

measure of colloquy between the two sides and, in

the result, I gave to my learned friend two days ago the summary of our argument and I understand

that copies of that have been distributed to

Your Honours.

BRENNAN J: Yes, they have.

MR HUGHES:  There are two points, the second of which can be

expressed in various ways, but the first point is a

short one, and that is founded upon the proposition

that the appeal to the Full Federal Court,

Your Honours, was on a question of fact and we say

that a point of general importance which arises in
those circumstances is this: whether there is, in

Davern v Messel, a decision of this Court reported in 155 CLR 21, a majority ratio which excludes the

principle of double jeopardy in a case where there

is an appeal to a second court of appeal on fact as

opposed to law.

Now, I say at once that the approach taken by

Justice Mason, as His Honour then was, and

Your Honour Justice Brennan, would not help me at

all because Your Honours clearly decided that case

on a general proposition that there was no

principle of public policy that required the

application of the rule against double jeopardy in

a case where the accused person invoked, after a
conviction at primary level, appellate jurisdiction

and won there at the primary appellate level so that the prosecution was moved to appeal to the

second appellate court.

However, we say that if one looks at certain

passages in the judgment of Sir Harry Gibbs, it

appears, in our submission, that His Honour

excluded the rule of double jeopardy on the basis

that it should not apply where the proposed appeal

by the prosecution against an acquittal entered at

the primary appeal level is on a question of fact.

His Honour excluded the principle where the appeal

was on questions of law. May I, very briefly,

invite Your Honours' attention to what we say are

the relevant passages in the judgment of the then

Chief Justice, adding, if I may, before I go to

them, that Your Honours will be aware, no doubt,

that Justice Wilson and Justice Dawson concurred in

the reasons of Sir Harry Gibbs.

The first passage really starts at the bottom

of page 30 down to the middle of page 31, where

His Honour refers on page 31 to Benson v Northern

Pilkinton 4 25/9/92

Ireland Road Transport Board and then to the endorsement by the Lords in that case of the

principle expressed by Chief Baron Palles in the

Tyrone County Justices case. I will just read the

piece that follows the reference to the Tyrone

County Justices case:

it is an elementary principle that "an

acquittal made by a Court of competent

jurisdiction and made within its jurisdiction,

although erroneous in point of fact, cannot as

a rule be questioned and brought before any

other Court" .

I do not think I need read on. At page - - -

BRENNAN J: Perhaps the following part that is there -

MR HUGHES:  I am so sorry, yes:

It was accordingly held that the general words of a statute conferring a right to appeal

against an order of a court of summary

jurisdiction on "any party against whom an

order is made for payment of any penal or

other sum" did not suffice to give a

complainant a right of appeal against an order

of a court of summary jurisdiction which had

dismissed the complaint and ordered the

complainant to pay costs.

Then His Honour examined Cockle v Isaksen.

BRENNAN J: Just pausing there: the principle is expressed

as a matter of statutory construction - - -

MR HUGHES:	Yes, Your Honour.
BRENNAN J:	- - - not by reference to the grounds taken in a

particular notice of appeal.	No appeal would lie,
if that proposition is right, either if there was

error in point of fact or if there was error in

point of law, if the appellate statute was couched

in the language stated.

MR HUGHES:  Yes, but, Your Honour, His Honour later refined

the reasoning down to the proposition that

His Honour was for allowing the prosecution appeal

in that case because the principle against double

jeopardy should be excluded, where the Crown appeal

or the prosecution appeal was on a question of law.

Your Honours may recall that in Davern

v Messel Professor Messel had been convicted by the
magistrate; he appealed to the Supreme Court of

the Northern Territory, and the course taken by

Mr Justice Gallop in that court was that he heard a

Pilkinton 25/9/92

good deal of evidence, but not the whole of the

case for the appellant prosecutor, and the parties

agreed that on the evidence as far as it had gone

it was possible for His Honour to decide the

questions of law, which were questions basically of

statutory construction, which if resolved in favour

of Professor Messel would result in the failure of

the appeal. And that becomes clear later in

His Honour's judgment where the course of the

appeal to Mr Justice Gallop is set out. I think

actually it is set out, if I may say so more

accurately, at pages 27 and 28.

But may I go to page 33, about a third of the

way down the page, where His Honour says:

I accordingly respectfully agree with the

conclusion of Deane Jin Thompson

v Mastertouch TV Service Pty Ltd that the

general words of s. 24 -

that is of the Federal Court of Australia Act -

do not affect the right of the subject to be

spared the; jeopardy of an appeal from an

acquittal after a hearing on the merits of a

criminal charge by a court of competent

jurisdiction. Room may remain for argument on

the question when a hearing is not one on the

merits, but that question raises no difficulty

in the present case.

To approve of the decision in Thompson

v Mastertouch TV Service Pty Ltd is not,

however, to resolve the present question,

since, as I have said, that decision dealt

with the case of an appeal brought directly

from an acquittal. We are now concerned with

the case of an appeal brought from a decision

given on an appeal from a conviction. The

question is whether, in such a case, the

general words of the statute permitting the

second appeal should not be understood to

confer on the ultimate appellate court power

to correct a patent error of law which has

been committed by the first court of appeal.

I can see no reason in principle or authority

why in such a case the general provisions of

the statue should be given a restricted

meaning.

Now we say that in that passage, Your Honours,

Sir Harry Gibbs pinpointed, or brought into precise

focus, with respect, the question that His Honour

was deciding in his judgment.

Pilkinton 6 25/9/92

TOOHEY J:	The difficulty about that, Mr Hughes, is that that was the very situation that was before
His Honour. You are really inviting us to say that
the judgment should be read as, not only permitting
a right of appeal where there was an error of law
committed by the earlier court, but that the judgment should be read as excluding a right of
appeal in any other situation.

MR HUGHES: Well, it is that question - the way I would seek

to put it in answer to Your Honour is that it is
the second question that is not resolved by

His Honour's judgment; is not resolved against me.

BRENNAN J: That submission involves the proposition, does

it not, that words which confer a right of appeal

on a litigant to a proceeding at first instance has

an operation which varies according to the ground

taken in the notice of appeal.

MR HUGHES:	Yes, it does do so.
BRENNAN J:	So that one has a right of appeal where there is

a question of law; none where there is a question

of fact?

MR HUGHES: Speaking of the prosecution, my answer to

Your Honour's question must be yes.

BRENNAN J:	And what answer do you give to a mixed question of fact and law?
MR HUGHES:	The answer would probably go against me, because

if there is a question of law, even though it is

mixed up with the question of fact, there is a

question of law.

BRENNAN J: It seems a very curious and almost adventitious

construction to give to a statute, Mr Hughes.

MR HUGHES: Well, Your Honour, the principle is well

established and recognized by Sir Harry Gibbs and therefore by those of Their Honours who concurred

in it and the ratio of His Honour's reasoning is

further demonstrated at page 40 in the second

paragraph after discussing the United States

authorities. His Honour goes on to say in the

first complete paragraph on that page:

The authorities favour the view which in

my opinion accords with commonsense and the

interests of justice, that if a convicted

person secures the quashing of a conviction on

an erroneous legal ground, a further appellate

court has the power to correct the error of

law and to restore the conviction which should

never have been disturbed.

Pilkinton 25/9/92

Now, in applying that to this case, there is a

twist, if I may so describe it, that perhaps helps

me, because as Your Honours will have no doubt

gathered from the papers, the magistrate convicted

my client on the basis of findings of fact which

were internally inconsistent and so perceived to be

by Mr Justice Foster in the supreme court, but also

findings of fact with which Mr Justice Foster

disagreed. So this is not a case of restoring a

conviction that should never have been imposed, and

this is what the Full Federal Court did, we

suggest. They reconstructed the prosecution case,

as it were, on the facts and found facts which led

them to the view that the element of intent was

proven.

BRENNAN J:  And so finding, do I take it that they came to a

conclusion which was erroneous in law, having

regard to your second point?

MR HUGHES:  It was a conclusion, in my submission, that was

simply erroneous in fact.

BRENNAN J:	So there is no question of law arising?
MR HUGHES:	Yes, Your Honour, so that the principle against

double jeopardy, we say, applies because its

application has not been excluded by the ratio of

Sir Harry Gibbs's judgment. That is the point. It

is a short point. If it ever came to be argued,

assuming that there were a grant of special leave,

it would no doubt take time to - - -

BRENNAN J: Well, bring it down to the practical solution in

this case, Mr Hughes. If special leave were

granted to you on that point, what is the fact

which, in your submission, was concluded by the

finding of Justice Foster?

MR HUGHES:  The fact that was concluded by the finding of

Mr Justice Foster is that because the accused

person had asserted - and this assertion had not
been negatived beyond reasonable doubt - an honest

belief that his non-disclosure of the client's

deception negated the presence of an intent in his

mind when he made the non-disclosure of perverting

the cause of justice.

BRENNAN J:  A non-disclosure negated the intent of a

non-disclosure?

MR HUGHES: Sorry, the non-disclosure negated intent

because - the honest belief in non-disclosure

negated the intent; the honest belief that he ought

not to make the disclosure.

Pilkinton 25/9/92

BRENNAN J: That he ought not to. That takes us to

His Honour's finding at page 14, does it not?

MR HUGHES:  Yes, it does.

TOOHEY J: But it is not a question of reasonable and honest but mistaken belief in the state of fact upon which

you rely, is that right?

MR HUGHES: It is not quite that. It is very close to it

and we say that the essence of Mr Justice Foster's

judgment was that the accused's honest belief in

the impropriety of disclosing his client's

deception to the court was incompatible with - and

that is the exact expression His Honour used - an

intent to pervert the course of justice. Now, that

is very close to being an honest belief in a state

of facts which, if they existed, would be innocent.

One is reminded, in that context, of what I think

Justice Dawson said in He Kaw Teh, 157 CLR at

page 592. I am sorry this is not on our list; it

came to my notice quite recently.

Either the accused has a guilty mind or he

does not, and if an honest belief, whether

reasonable or not, points to the a_bsence of

the required intent, then the prosecution

fails to prove its case.

That is the sort of principle to which

TOOHEY J: That principle normally operates, Mr Hughes,

where the mistaken but honest belief in the

existence of facts is inconsistent with a guilty

mind. What you appear to be saying here, and

correct me if am misunderstanding it, is that even

where a person knows that what he is doing will, in

fact, pervert the course of justice, that if he has
an honest belief that some professional or other

obligation compels him to refrain from correcting

the mistake under which the court will labour, that

that is an answer to a charge of perverting the

course of justice.

MR HUGHES:  We would say that would be so. We also say,

however, we put this rider on that proposition by

saying that in this case the accused swore that he

did not intend to mislead the court. Unfortunately
the transcript of the evidence before the
magistrate is not before Your Honours, but he gave

that evidence, and we say, and I think this is

sought to be expressed in our summary, that if

there was any deception by the accused, it could

only have been a misrepresentation by silence and

there cannot be a representation by silence unless

there is a positive duty to speak. And here, the

accused found himself, as it were, at the boundary

Pilkinton 9 25/9/92

line between what he perceived, maybe mistakenly,

to be his professional duty, his ethical duty and

what might be perceived to be his duty to the

court.

It is, in another form, essentially the same

sort of problem as arose in the case of

Meek v Fleming which is on our list, and that is

the case in which a former detective chief

inspector was sued with other police for false

imprisonment. Between the alleged false

imprisonment and the hearing of the action in the

Queen's Bench division, the detective chief

inspector had been demoted to the rank of station
sargeant, and notwithstanding that, when he was

called to give evidence - and this at the

instigation of his leading counsel - called to give

evidence in civillian clothes which was not the

usual practice, referred to as mister, rather than

by his non-commissioned rank, so that the

impression was sought actively to be created that

the defendant in question had retained his rank and

was still a senior officer in the force.

The case even went to the point where he was

asked questions in cross-examination which assumed

that he was still a detective chief inspector and

he did not disabuse the cross-examining counsel.

The case is reported in (1961) 2QB 361. The

questions in cross-examination are at page 376 and
perhaps they are an object lesson in the unwisdom

of asking double questions. I will not read them

because the detective chief inspector was asked in

one question:

"You are a chief inspector.	How old are you?
(A) I am forty-six.

BRENNAN J: But so as far as each of these cases are

concerned, Mr Hughes, the problem there is not

anything more than suppressio veri, and the

question is whether there is, therefore, a

suggestio falsi. But that is a problem which no

doubt you will come to in dealing with the second

of your points.

MR HUGHES:  Yes, I shall.

BRENNAN J: But in relation to the first of your points, do

you say that in the consideration given by the

Full Court to the passage on page 14 there was

nothing more than a question of fact involved?

MR HUGHES:  I do, Your Honour.

Pilkinton 10 25/9/92

BRENNAN J: It seems to me, if I might say so, that you are

in a certain dilemma that perhaps I am mistaken it,

and perhaps you can either escape from the horns or

block them in some way.

MR HUGHES:  The basis of Mr Justice Foster's judgment is

clear enough. He said the prosecution had not

negated the existence, in the mind of the accused

of his asserted belief, that it would be

professionally improper for him to disclose the

deception. And I do not want to go at length into

the primary - - -

BRENNAN J: 

The next step is: what has that got to do with

the question that is the element of the offence of
perverting the course of judgment?

MR HUGHES: 

Because His Honour inferred, from the facts

testified to by the accused's solicitor, that when

he did not disclose the deception - his client's

deception - to the court, he was not activated in

so doing by an intention present in his mind of

perverting the course of justice.

BRENNAN J: That involves a question of what is the

intention to pervert the course of justice. It is

not a question of his motive, it is what was the

result which he expected and desired from what he

was doing.

MR HUGHES:  The question was: what was the purpose that he

was serving in not making the disclosure? The

essence of the offence, which one takes from Murphy

in the New South Wales Court of Appeal, is that it

consists in engaging in conduct which is directed

to or aimed at fulfilling an intention in the

accused's mind of perverting the course of justice.

It has got to be his actual intention present to

his mind at the time when he does the act, charges

the guilty act.

TOOHEY J:  I have some difficulty with it put in that

compendious way. Does it mean that if a person

deliberately intends to bring about a certain

result which, on any view, constitutes perversion

of the course of justice that he has, as it were,

to go through in his own mind the formula of

saying, "I intend to pervert the course of

justice", or is it enough that he intends to bring

about a result which he knows will pervert the

course of justice?

MR HUGHES:  Your Honour, Murphy's case in the Court of

Appeal focuses on his purpose, his actual purpose.

Pilkinton 11 25/9/92

TOOHEY J:  So that even if he does something consciously,

knowing that it will pervert the course of justice,

if that is not his purpose - - -

MR HUGHES:  It has to be his purpose, yes, Your Honour, and

that, of course, is an important question.

BRENNAN J:  How does one equate a purpose subjectively with

an intent, in the light of Vreones case and

Rogerson's case?

MR HUGHES: Purpose and intent are, in my respectful

submission, so close to each other as to be

tantamount to the same thing.

BRENNAN J: Purpose may be something which is an object

desired to be achieved by whatever means.

MR HUGHES:	By what is done.
BRENNAN J:	By what is done.  But it may be that intent

extends to the result of what is done being

contemplated and, if not desired, at least foreseen

as inevitable.

MR HUGHES:  Well, our submission to the Court would be that

if one looks at the judgment of the Court of Appeal

in Murphy, to which I will come very briefly now,

if I may, the focus is on purpose, not on end or

result. The first page is 49, Your Honour.	It is
(1985) 4 NSWLR 42 at page 49 in particular.	The

difference between the two sides that was exposed

in the argument on this aspect of Murphy's case is
discussed by Their Honours at page 48.

Their Honours say, at the top of the page:

There was agreement between them -

that is between counsel -

that the mental element of the offence was

properly described as an intention to pervert

the course of justice. They differed in their

submissions as to the nature of the conduct

required. Mr Hughes QC, for the appellant,

contended that in the phrase "tendency to

pervert the course of justice" tendency should

be equated with likelihood.

My submission is set out. Then, in the middle of

the page:

Mr Callinan QC, for his part, defended

the manner in which the trial judge had
described the requisite conduct. The equation

of tendency with possibility or risk was taken

Pilkinton 12 25/9/92

from the judgment of the English Court of

Appeal in R v Murray.

Now, over on page 49, Your Honours - - -

BRENNAN J:	We are speaking here of actus reus, are we not?
MR HUGHES:	Yes, but intent is at the heart of the actus reus in this rather unusual offence.
BRENNAN J:	I find that a concept difficult to come to terms

with, Mr Hughes.

MR HUGHES: Well, Your Honours, could I just refer

Your Honours, if I may, to page 49:

Johnson's English Dictionary 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 -

and this is from Baron Pollock's classical

exposition in Vreones -

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 for

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.

And over on page 51, perhaps I should start at

the bottom of page 50 to get the context,

Their Honours say:

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

Pilkinton 13 25/9/92

intention. Whether the conduct has a prospect
of producing a perversion of justice is not a

necessary element of the offence.

So, if those statements of principle by the

Court of Appeal are correct, the focus must be on purpose or intention.

McHUGH J: Could you just help me? was the applicant

charged as an aider and abetter?

MR HUGHES:	No, Your Honour.
McHUGH J:	He was charged as a principal in the first

degree?

MR HUGHES:  Yes. I have here - I think I have got

sufficient copies of them - of the particulars that

were supplied of what was said to constitute the

attempt.

McHUGH J: 

Was it alleged that this was attempting to

pervert the course of justice as a continuing
process or in relation to this particular case?

MR HUGHES: 

In relation to this particular case, is the

answer to Your Honour's question. There was a

curious feature of the case that emerged in

response to submissions put on behalf of the

defendant in the appeal to Mr Justice Foster. The

magistrate rejected the accused's statement that he

had been told by his client, not only of the

deception, but told by her that she was going to be

charged. So the essence of the offence was an

alleged perversion of the course of justice in

relation to this particular case, and the behaviour

charged as the alleged attempt was the non-

disclosure said to be implicit in the simple

statement "I appear for the defendant", when the

case was called in the false name. That was said

to be the attempt or the actus reus.

McHUGH J: Well now, what tendency was that alleged to have

had?

MR HUGHES:  The tendency that that was alleged to have had

was that the court records of the conviction would

be false. As against that, of course, on his

evidence, which Mr Justice Foster said had not be
negatived beyond reasonable doubt on this point,
the accused believed that the police knew of the

deception and on his evidence he understood that

his client would be prosecuted for the deception.

TOOHEY J:  I must say I find that terribly difficult to

understand: that the police would prosecute a

person in a name they knew to be wrong,

Pilkinton 14 25/9/92

anticipating that after that case they would then

charge the person, whom they had already prosecuted

in a wrong name, with using a wrong name.

MR HUGHES:	But the state of mind revealed by the accused's evidence, which His Honour Mr Justice Foster found,
to put the position broadly, acceptable, was that
he went to court expecting that his client would be
charged in her true name, which was not Crawford,
the name in which the charge stood, but Camilleri, not only with the drink driving offence but with
the deception as a separate matter.  He got to
court - I am summarizing the evidence, which is
digested in my summary - and he said to the court
clerk, or monitor, "I am appearing for Camilleri.
There is also another charge: using a false name."
The monitor said, "There is no such name and there
is no such additional charge."  He went outside,
spoke to his client and said, "Have we come here on
the wrong day?" She said, "No. The name is up
there on the list: Crawford." He said "Is that the false name you used?" She said "Yes." It was
that situation that confronted him with what he
perceived to be a dilemma.
McHUGH J:	Is it only the announcing of the appearance which

was alleged to be the act on his part?

MR HUGHES:	Yes.
McHUGH J:	So the offence had to be completed at that stage,

both intent and actus reus, at that stage?

MR HUGHES:	Yes.
McHUGH J:	What would be the case if, for example, she had

been using the name Rozanne Marie Crawford for the
previous three or four weeks, or perhaps if she had

been using it alternatively? Would he have had any

obligation then to disclose the name?

MR HUGHES:  No, Your Honour. May I, to illustrate my

answer, refer to the way in which accused persons

are indicted in New South Wales, the form of the

indictment:  "XYZ, you stand charged by that name,

for that, on such and such a date you committed a

particular crime." If in that situation a counsel

appearing for the accused person knew the true

name, in our submission, he would not be under any

obligation to reveal it, to reveal that his client

was charged under an alias.

TOOHEY J:  The person may have been using an alias, but that

is not the situation here. He was told by his

client that she had given a false name to the

police.

Pilkinton	15	25/9/92
MR HUGHES:	Yes, Your Honour.	I appreciate that, but the

other -

McHUGH J: That was an offence itself, was it? Is that an

offence under the ordinance?

MR HUGHES:  Yes, it was an offence. That raises another

part of the problem that my client faced, and that is that he was under a professional obligation not

to disclose anything relating to the character or

antecedents of his client. The use of the false

name, given the width of the meaning that is being

ascribed to the word "antecedents", would have been

a disclosure of antecedents. That point is made in

our summary and is supported by reference to the

Bar rules.

TOOHEY J: Yes, but that obligation, Mr Hughes, must be

overborne by an obligation not to mislead the

court.

MR HUGHES:  Is Your Honour referring to the obligation not

to disclose anything relating to character or

antecedents?

TOOHEY J: That was the obligation that you just offered us.

I am saying that obligation must be overborne by an

obligation in not disclosing antecedents not

positively to mislead the court.

MR HUGHES:	Your Honour, if I may say so -
TOOHEY J:	The situation here was that had the defendant -

that is the defendant to the traffic charge - been

prosecuted in her correct name, then previous

convictions would have emerged.

MR HUGHES:	Yes, Your Honour.
TOOHEY J:	As it was, she was prosecuted under the name

what, of her sister, was she?

MR HUGHES:	Yes.
TOOHEY J:	A name which she did not use which she knew was

her sister's name and her sister had no

convictions.

MR HUGHES:  Yes, Your Honour. Another part of the evidence

in the case was that his instructions were that she

had no previous convictions. His Honour

Mr Justice Foster dealt with that favourably to the

accused.

BRENNAN J:  Mr Hughes, we do not need to debate the appeal

at this stage. You have been responding to

questions obviously, but we do need to understand

Pilkinton 16 25/9/92

the issues that might fall for determination if
special leave were granted. It is right to say, is

it not, that the first question is whether your

client was amenable to having the conviction

restored by the Full Federal Court, having been

acquitted by Justice Foster?

MR HUGHES: 

Yes, on, as we say, an issue of fact.

BRENNAN J: 

The question of whether it is an issue of fact

or not obviously takes some of its flavour from the
balance of your argument.

MR HUGHES: 

Yes.

BRENNAN J: 

So that is one question for consideration. The

second question, it seems to me, is subdivisible into: what is meant by intent in the offence of

perverting the course of justice; and the second

is whether or not the circumstance that he

construed or misconstrued a rule of professional

practice is relevant to the existence or

non-existence of the intent.

MR HUGHES:  Yes, Your Honour. As to the first question, we

respectfully submit that the formulation by the

Court of Appeal in New South Wales and

Court of Criminal Appeal sitting together because

of the nature of the case, is correct, and that in

deducing intention in relation to this offence, the

whole focus is on purpose, the accused's purpose.

BRENNAN J: Well, if one chooses to use the word "purpose",

instead of "intent", though, as you say, they are

closely aligned in this context, what, in your

submission, was the purpose of the applicant in

doing what he did?

MR HUGHES:  His purpose in not disclosing the deception was

the purpose of fulfilling what he perceived to be,

in the circumstances, his ethical or professional

obligation.

BRENNAN J: Well, now, that may be one purpose. Could there

be any others, because purposes are notoriously

complex and the relevant purpose, of course, is not

simply fulfilling a professional obligation? The

relevant question was whether there was any purpose

to lead the court to a state of mind.

MR HUGHES:  His Honour Mr Justice Foster took a view

favourable to the accused on that and I should now,

guided by Your Honour's questions, refer to a

particular passage in the judgment of the

Full Federal Court which, in our respectful

submission, demonstrates or evinces error. This is

the point that we refer to in paragraph 11 of our

Pilkinton 17 25/9/92

summary. At page 51 of the application book,

Your Honours, Chief Justice Black says this, and I

quote:

An intention to do an act that has a tendency

to pervert the course of justice, knowing that

it has a tendency, is not however necessarily

the same thing as an intention to pervert the

course of justice.

We would respectfully agree with that proposition.

If proof of the offence requires what may be

termed a literal intention to pervert the

course of justice, proof of the intentional

doing of an act that is known to have that

tendency may be insufficient because it may

leave open the possibility that an actual

perversion of the course of justice was not

intended. There is a difference between

intending interference and risking

interference.

The respectful criticism that we would make is that

Chief Justice Black failed to appreciate the

significance of the proposition enunciated in that

passage to the facts before the court. We would

take issue with the suggestion that the defendant

had any actual purpose of perverting the course of

justice but even if he knew of that risk, that is

not, of itself, sufficient to constitute the

offence, so the argument would run if an appeal

were allowed to be prosecuted by special leave.

And then there is a passage at page 58,

Your Honours, line 9:

The reason why a person acts in a particular

way may bear upon the intention with which an

mislead the court cannot, in my view, affect	was ethically correct or even necessary to act is done but in this case a belief that it	an otherwise irresistible inference that there
was an intention to pervert the course of
justice.

Again, Your Honour, while we take issue with the proposition that he intended to mislead the court

by simply saying he appeared for the defendant and

not disclosing his client's deception, that passage

in so far as it asserts that reason may bear upon

intent is, with respect, clearly right, but the

significance of it was, with respect, not

appreciated by the Full Court and for the reason as

found by His Honour, or as more accurately to be

put, not negated by His Honour Mr Justice Foster in

the application of the criminal onus.

Pilkinton 18 25/9/92

So that we do submit that there is a question of general importance, perhaps several questions of

general importance, depending on precisely how one

formulates them, but we have endeavoured to

formulate them in alternative forms in paragraph 6,

7 and 8 of our summary, and unless Your Honours

wish me to I will not read them aloud. They are

there, and we would submit that any one of those

questions is a matter of general importance in the administration of justice, because these questions stand, as it were, on the boundary line of possible

conflict between duty to client and duty to court.

BRENNAN J: There is none, Mr Hughes.

MR HUGHES: Generally, I would respectfully agree with

Your Honour, but there are cases which do create a
dilemma and that was recognized by

Lord Justice Holroyd Pearce, as His Lordship then

was, in the case to which I referred earlier,

Your Honours, Meek v Fleming. Could I just quote one sentence from Lord Justice Holroyd Pearce's

judgment, it is at page 379, the last paragraph on
the page. His Lordship said:

In every case it must be a question of

degree, weighing one principle against the
other. In this case it is clear that the

judge and jury were misled on an important

matter. I appreciate that it is very hard at

times for the advocate to see his path clearly

between failure in his duty to the court, and

failure in his duty to his client.

BRENNAN J: That is no doubt true, that it is oftentimes

difficult to see where the duty lies.

MR HUGHES:	Yes, well, this perhaps.
BRENNAN J: There is no conflict. It is a question of

defining what the duty is.

MR HUGHES:	No, it is a question of picking a path - - -
BRENNAN J:	A clear path.
MR HUGHES:	-between difficult - - -
BRENNAN J:	And the proposition to make it viable which I

understand you to advance is that if a legal

adviser, a barrister or solicitor, appearing for a

person in court who is charged under a false name

with an offence of a traffic nature, that person

having had a previous conviction for traffic

offences, and desiring to maintain some secrecy
about the true identity of that person, appears in

court and lends himself or herself to the deception

Pilkinton 19 25/9/92

that is implicit by putting forward that name, that

in some way that might be arguably within a

professional duty.

MR HUGHES:  To disclose the matter to the court, even

without instructions?

BRENNAN J: Yes.

MR HUGHES: Well, it may be, but Your Honours - - -

BRENNAN J: Well, "without instructions" raises the problem

of appearance, as Chief Justice Black pointed out.

MR HUGHES:	Yes, but of course His Honour's resolution of the problem is, on analysis, perhaps not altogether
satisfactory because to get up in court and excuse
oneself from the case one has to announce an
appearance anyway, to ask for the case to go over. There is no magic solution to this problem and
there is a circumstance which was in Your Honour's
formulation of the problem a moment ago which was
not quite the circumstance with which the defendant
was faced here.  He, on the findings of
Mr Justice Foster, was not aware of the previous
traffic record.  He gave evidence, which His Honour
in the relevant sense accepted, that when he said
that "she regrets the offence which is a blot on
her otherwise good record" he was acting on
instructions to that effect.

So we do say - and I am mindful of

Your Honour's gentle admonition that I must not

argue the appeal, that would be premature - we do

say that there are questions of general importance

here which we have endeavoured to formulate in

three alternative forms, and we do say that they

are worthy of debate in this Court because, for one

reason, they were not fully appreciated in the

judgment of the Full Federal Court given in May

this year, 13 months after the appeal had been

argued before that court.

BRENNAN J: Yes.

MR HUGHES:  Unless Your Honours wish me to dilate further on

the questions which we say arise on the facts, I

will not do so, because I have endeavoured to do it

compendiously in written form.

BRENNAN J:	Mr Adams.
MR ADAMS:	Your Honour, if I can take up the Davern v Messel

point first, we submit that leave ought not to be

granted to agitate the question which my learned

friend proposes. We submit that the situation is

that there are two judgments of this Court directly

Pilkinton 20 25/9/92

relating to and dealing with this question, that at

the best for him there are judgments of the court

which do not directly deal with this problem and

leave it open, and there is a judgment of the Full

Court of the Federal Court which says that the appeal is an appropriate appeal.

We submit that the proposition that my friend

proposes is, at all events, wrong for the reasons

that commended themselves to Your Honour

Mr Justice Brennan and Mr Justice Mason in

Davern v Messel and which are implicit, if I may

adopt the question, though appreciating Your Honour

was not putting a view, Mr Justice Brennan to my

learned friend that the acceptance of the position

he argues makes it extremely difficult to know

whether in any particular case there is

jurisdiction to hear any appeal; it would depend

upon - - -

McHUGH J: But that is not uncommon; I mean, a personal

workers' compensation jurisdiction, land and

environment, questions of law and fact. You

frequently do not know whether the court has got

jurisdiction until you hear argument.

MR ADAMS: That is true, Your Honour, but this is a case

where we are dealing with the criminal jurisdiction

and criminal convictions - - -

McHUGH J: But you must start with the proposition that

Chief Justice Pratt pronounced in 1724 that it has never yet been known that a verdict was set aside

by which the defendant was acquitted; that is the

general rule.

MR ADAMS: Well, Your Honour, that is, if I may say so, not

so much the general rule as the starting point,

because, in my submission, Davern v Messel is
precisely an example where there was an acquittal.

It was an acquittal upon the basis of a ruling of

law -

McHUGH J: But only two judgments in that case support the

approach of the Full Court.

MR ADAMS: That is so, Your Honour, and the other judgments

McHUGH J: Two dissent, and three judgments confine it to a

question of law.

MR ADAMS: That is so, Your Honour, but Your Honour, I do

not say this in a comparative way, but go on from

what Your Honour said, in terms which left open the

argument which Mr Hughes seeks to maintain here,

and we would submit that in the light of the Full

Pilkinton 21 25/9/92

Court judgment, which considered this question, that that provides support for the more broader

rule proposed, but neither accepted nor rejected by

the majority of the court in Davern v Messel.

McHUGH J:  What do you say about Mr Hughes' point that there

is only a question of fact involved in this as

opposed to the question of - - -

MR ADAMS:  We say, Your Honour, it is a question of mixed law and fact. The question of whether a verdict is

perverse has been regarded as a mere question of

fact, but to fasten on an irrelevant fact to

determine an issue is an error of law. I think it

was in Tuckiar that Mr Justice Windeyer observed

that the description of a mixed fact and law very

often arises because it is very difficult to

discern whether it is a question of law or fact,

which may be a just observation, but we would

submit that there was certainly a question of fact

involved here, but there was also involved a

question of law.

The question of law is, we submit, whether the

intent to obey the rules - and I will add another

intent in a moment which needs some attention -

negates an intent to pervert the course of justice,
it being that the rules of course are part of the

administration of justice. Part of the difficulty

in dealing with this question is that it is

virtually impossible to discern from the judgments

what is the precise actus reus charged.

McHUGH J:	If you start with the point Mr Hughes says, "I appear for the defendant", does that mean in every
case when a lawyer announces an appearance for a defendant, and unbeknown to the lawyer it is a
false name, that the lawyer's act has a tendency to
pervert the course of justice, although he is not guilty of an offence because of lack of intent, but
that is what it must come to, on your argument.
MR ADAMS:	Your Honour, I do not think that proposition was

in fact argued by the Crown either before

His Honour Mr Justice Foster or before the Full

Court.	It is very difficult to discern the
argument from the judgments also.	The way in which

the Crown put it before Mr Justice Foster was that

by what he did the accused perpetuated the falsity.

Before the Full Court, the argument was, as

Mr Justice Black points out, that he committed a

deliberate lie. When one looks at the judgment of

Mr Justice Black, he variously describes the actions of the accused as "participating in the

deception", "conduct which was a party to the -

Pilkinton 22 25/9/92

McHUGH J: That is why I asked questions about whether he

was charged as an aider - - -

MR ADAMS:  Aiding and abetting was clearly put as the basis

of the Crown case to the Full Court, but I must, in

fairness, concede that that was not the case

particularized and it is somewhat uncertain, but in

fairness it does not appear to be the case put

before Mr Justice Foster.

McHUGH J: Are you familiar with the distinction which

Lord Diplock used to draw between diverting the

course or interfering with the course of justice in

a particular case, or as part of a continuing

process?

MR ADAMS:  Yes.

McHUGH J: What was it alleged here?

MR ADAMS: It was this particular case. But a problem here

is: when did the process start? It was part of

the evidence and referred to by counsel, both
before Mr Justice Foster and before the Full Court

- but to prove what, it is not entirely easy to

discern - that the applicant told his client to

come forward when the name was called. However,

that was put not, as I understand the case put, to

show that he was aiding and abetting and assisting

her deception but by showing that he, when he

announced his appearance, knew that she was going

to maintain the false name.

If I may say this:  Mr Justice Brennan, in

questioning my learned friend, put "Is this not a

case of whether suppressio veri amounted to

suggestio falsi?"	We submit that may well be the
very central issue here.	The difficulty we have

with Mr Justice Foster's judgment is that he does

not find that the applicant deliberately misled the
court.	He finds that the court was in the result
misled.	He does not deal really directly,

explicitly, with the question of whether he

deliberately misled -

McHUGH J: When you talk about "mislead the court", mislead

it in what respect?

MR ADAMS:  By asserting that the true identity of his client

was the name Crawford.

McHUGH J:  How does that mislead the court in itself? You

have got to go further than that, have you not?

MR ADAMS:  We would not maintain that it would and that is

no doubt why, before the Full Federal Court, it was

necessary to put the case, as it was then put, on

Pilkinton 23 25/9/92

the basis of deliberately misleading, aiding and

abetting or acting in concert with his client to

achieve the result of a conviction under the false

name. That was the way the Crown put the case

before the Full Court.

But it is not clear from the Full Court's

judgment whether the court accepted that

characterization. Mr Justice Black sets out

briefly the submission made and then does not in

terms make any other reference to whether there was

a deliberate misleading. For our part, we must

say, I think in fairness, that it would be

impossible to accept that Mr Justice Foster would

propose that any advocate could conceivably believe

that the obligations of the court entitled him to deliberately mislead the court, as distinct from,

as it were, allowing a deception by his silence to

continue.

We submit that the only way in which, at the

end of the day, one can read Mr Justice Foster's

judgment is that in the absence of deliberately

misleading the court, or an intention of

deliberately misleading the court, a belief that

his silence was required by the rules, rightly or

wrongly, and that that silence did not amount to a

representation of fact or his appearance did not

amount to a representation of fact, constituted a

good defence to the charge.

Now, we accept that that is a question of general importance, being whether when a counsel or

advocate announces an appearance he is making any

statement at all as to, as it were, warranty of

title, asserting that his client's name is as in

the charge. It is difficult, as I think was

necessarily implicit in a concession that

Mr Webster made when appearing for the prosecution

before Mr Justice Foster, to assert that that was

may say so, that the question of honest mistake	the case, which is the way we rather think, if we
might arise. We would submit that Mr Hughes, with
respect, is wrong in submitting that the question
of honest and reasonable mistake attaches itself to the existence or otherwise of the rule.

If he honestly believed that by announcing his

appearance he was not making a representation, that

is, that the court would not rely on it as a

representation, if that was honest, then that would

go to the question of what he did was intended by

him to have the tendency to pervert the course of

justice.

Now, those are the difficulties that we see, I

feel in candour we should express to this Court

Pilkinton 24 25/9/92

concerning the Full Court's judgment, and it seems

to us that the Full Court does not grapple with

these essential difficulties, namely, what

precisely is the actus reus to which the intention

or mens rea, in respect of which the existence of

mens rea must be examined, because if, at the end

of the day, as it seems to us, Mr Justice Foster

accepted was the position, the accused's position

was, as it were, "I did not deflect the ball that

was bowled by the prosecution, I let it go through

to the keeper knowing, though, that that was an

inevitable result of my not correcting the

position, did that amount to an intent to pervert

the course of justice." We say, with respect, that

that is a question of general importance. The

position of counsel in announcing an appearance and
in failing to correct such a matter is a matter

that needs specific guidance.

But we would say, may I make this observation,

that rightly understood, Mr Pilkinton's duty was

perfectly clear: he could not appear for

Miss Camilleri at all, and that was the way in which the dilemma which he perceived should have

been resolved. But having appeared and having done

what, for practical purposes, might be accepted to

have done his best, mediocre or mistaken best, it

has been another question whether he committed a crime, and we submit that the real question here

is, "Did he deliberately mislead the court?".

Now, the difficulty, if the Full Court

judgment is left as it is, is that it is very

difficult indeed to discern the principle which ought to apply to an advocate in that situation

from the Full Court's judgment. It is clear that

he must not deliberately mislead the court. Is an

announcement of an appearance, in the circumstances

here, such a misleading of the court?

BRENNAN J: Well, the question is one of fact, is it not?

MR ADAMS:	I am sorry, Your Honour?
BRENNAN J:	The question is one of fact in the

circumstances.

MR ADAMS: That is so, Your Honour, but the question is

whether, if by what he did he believed that he

acted in accordance with the rule, that negated any

intent to pervert the course of justice, which is a

question of law.

BRENNAN J:  What are you speaking about, the actus reus or

the intent?

Pilkinton 25 25/9/92

MR ADAMS:	The intent, Your Honour.
BRENNAN J:	The intent.
MR ADAMS:	Yes.
BRENNAN J:	So the proposition that you support the

application on is that if there was a belief that

he was acting in accordance with an ethical rule,

then the existence of that belief is arguably

inconsistent with the existence of the criminal

intent?

MR ADAMS:	Providing that he did not deliberately mislead the court, yes.
BRENNAN J:	What do you mean, "providing that he did not

deliberately mislead the court"?

MR ADAMS: 

We submit that he could not have honestly

accepted, believed, that the rule obliged him to
mislead the court.

BRENNAN J: 

I am afraid I am not following your argument,

Mr Adams.

MR ADAMS:	I am sorry, Your Honour.
McHUGH J:	You are saying the rule is just really the reason, there is a reason in the background. It
has got nothing to do with the rule, has it,
really? This case has nothing to do with the rule
except, perhaps, to explain why he did what he did.

MR ADAMS:  Yes, Your Honour. I am sorry that I have not

made myself clear on this question. If there was a

question at the end of the day whether an

announcement of an appearance is misleading the

court, we would say that is a question of general

public importance.

BRENNAN J:  And a question of fact, surely? How does a

question of general public importance emerge from the inference to be drawn from an announcement of

an appearance in cases in general?

MR ADAMS: Well, Your Honour, because the behaviour of

counsel or an advocate, in this circumstance, is a

matter governed by rules of practice that impose

upon him legal obligations, and the question is

whether or not he fulfils those legal obligations

or does not fulfil those legal obligations.

BRENNAN J: Well, what are they?

MR ADAMS: Well, the obligation is not to mislead the court.

Pilkinton 26 25/9/92

BRENNAN J: Well, if somebody stands up in court and says, I

appear for AB, that may or may not be misleading.

MR ADAMS: Yes, Your Honour. Well - - -

McHUGH J: But your point is that these judgments have - - -

MR ADAMS:  Not if that were alone, Your Honour, with

respect.

BRENNAN J: Well, what is the question of general public

importance?

MR ADAMS: Well, as we see it, Your Honour - and it can only

be this - whether the announcement of an appearance
by a counsel in a case of this kind is an assertion

of the client's identity, and we say that that is
not merely a question of interpreting the rules,

but interpreting the rules in the light of the

duties imposed on counsel as to misleading the
court.

BRENNAN J: Well one would have thought that if it meant anything, what it meant was that counsel had no

reason to doubt the identity of the person for whom

he was appearing.

MR ADAMS:  Your Honour, that is a question which I

understand will be debated if leave is granted.

TOOHEY J:  But the way you are putting it troubles me,

Mr Adams. You seem to be supporting the

application for special leave on the ground that

the case, if allowed to go to appeal, may produce

some sort of general guidance for counsel in this

situation, as opposed to the question of whether

the conviction of the applicant itself gives rise

to some question of general principle.

MR ADAMS:  Your Honour, I do not propose that. That would

simply be an incident of a determination by this

Court of the relevance of the intent and the extent of the intent that must be found in order to determine whether there is a perversion of the

course of justice. That is the way we would put

it, Your Honour. Unless there is anything further,

there is nothing further I wish to add.

BRENNAN J: Thank you, Mr Adams. Mr Hughes?

MR HUGHES:  As to the Davern v Messel point, Your Honours,

the discussion that has occurred, in my respectful

submission, does tend to suggest strongly that this

appeal to the Full Federal Court was on a question

of fact. There was a change of ground, of course,

as my learned friend has conceded, in that an

attempt was made to go outside the issues fought

Pilkinton 27 25/9/92

between the parties before Mr Justice Foster and to

create a case of aiding and abetting.

If I may say so, the case of aiding and

abetting was highly improbable because, before the

magistrate, the client swore, but was disbelieved

by the magistrate, that she had given express

instructions to the defendant to reveal the

identity. She was rejected as being not a witness

of truth, so there could not be any aiding and

abetting.

One of the difficulties to which my learned

friend has adverted, with respect, is perhaps a

difficulty that the judgment was given so long

after the argument that there is always a risk that

the precise point of the factual argument was lost
sight of when the judgments were given 13 months

later, but in a way I am assisted on my first point

by the view that may be taken that this is all

about questions of fact, and my learned friend has
conceded that the question whether the rule against

double jeopardy is excluded in relation to second

appeals on questions of fact.

McHUGH J:  I did not think he conceded that.

MR HUGHES: Well he said that this Court left the question

open; that is as I wrote down what he said. He has

McHUGH J:	I thought he endorsed the Full Court's approach.
MR HUGHES:	Yes, but it is left open here; that was the point I was trying to make, and the question of - I
cannot, try as I may, improve or do better than the attempted formulations I have made of the questions
beyond the Davern v Messel question in this written
outline and I would not try to weary - they, in our
submission, do partake of the character of
important questions, because of the tension between
duty to the court at times and duty to client. I
doubt if there is anything else I can usefully add,
except that the Cobiac v Liddy point ought not, in
our respectful submission, to be lost sight of.
The Bar rule against misleading the court is
qualified by the exception that counsel is under no
duty to disclose facts known to him about the character or antecedents, but I mentioned that
in-chief; it was not touched on by my learned
friend.

In my submission, it is a case for special

leave for those reasons.

Pilkinton 28 25/9/92

BRENNAN J: Thank you, Mr Hughes. The Court will adjourn

briefly to consider what course it will take.

AT 12.43 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.57

BRENNAN J:  The decision and order which I am about to

announce is the decision and order of the majority

of this Court.

This application for special leave to appeal

is founded on two submissions. The first is that

the applicant, having been convicted before the

Magistrates Court in the Australian Capital

Territory, and having successfully appealed to the

Supreme Court of the Australian Capital Territory,

was not amenable to having his conviction restored

by the Full Court of the Federal Court.

The applicant relies on some passages from the

judgment of Gibbs CJ in Davern v Messel, (1984)

155 CLR 21, to support a submission that no appeal

lies to the Federal Court from an acquittal by an

intermediate appellate court when the appeal is

brought to correct an alleged error of fact only.

This argument encounters the difficulty that

perusal of the judgments reveals that the appeal

was allowed on a ground that involves both fact and law. Assuming that the passages relied on from the

judgment of Chief Justice Gibbs are capable of

supporting the applicant's argument, this case is

not a suitable vehicle for determining that

argument.

The second submission is that on the findings of fact made by Mr Justice Foster in the Supreme

Court, his Honour's conclusion that the applicant

should not be found to have had the intention by

his conduct to pervert the course of justice should

not have been disturbed. However, on the view of

the unchallenged facts taken by the Full Court, the

conclusion of the Full Court that the inference of

intent was irresistible is not attended with

sufficient doubt to justify the grant of special

leave.

Accordingly, special leave will be refused.

The court will adjourn until Tuesday morning

at 10.15 a.m.

AT 12.59 PM THE MATTER WAS ADJOURNED SINE DIE

Pilkinton 29 25/9/92