Police v Laughton - [2012] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LAUGHTON
[2012] SASC 102
Judgment of The Honourable Chief Justice Doyle
13 June 2012
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - INCORPORATION OF OTHER STATUTORY PROVISIONS
The prosecution appealed against a decision of a Magistrate to dismiss an Information alleging that the two respondents had attempted to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) – the Magistrate found the two respondents not guilty.
The second respondent submitted to a breath analysis that produced a reading of 0.157 grams of alcohol in 100 millilitres of blood, which is the prescribed quantity of alcohol for the purposes of s 47A of the Road Traffic Act 1961 (SA) (RTA) – by operation of s 47K of the RTA, the rebuttable presumption that the concentration of alcohol indicated by the breath analysis was present in the blood of the second respondent at the time of the analysis and throughout the preceding two hours, was enlivened – the second respondent requested and was given an approved blood test kit, in accordance with s 47K(2a) of the RTA – the second respondent later requested and was given a second approved blood test kit from a police station – the first respondent, the second respondent’s sister, attended a hospital and provided her blood under the pretence that she was her sister - the result of the analysis of that blood sample could have been used as a basis for evidence supporting an argument that the breath analysing instrument had given an exaggerated reading, rebutting the presumption contained in s 47K of the RTA – the police became suspicious of a deception as there were different signatures on the various documents associated with the breath analysis and blood test - the respondents were charged with attempting to obstruct or pervert the course of justice or the due administration of the law – the Magistrate found that the provision of the blood sample by the first respondent, while impersonating her sister, was not a sufficient act to constitute the offence.
The issues on appeal were: (1) whether the Magistrate erred in dismissing the Information charging the respondents with attempting to obstruct or pervert the course of justice; (2) by way of Notice of Alternative Contention, the respondents appealed against conviction and put into contention the issue of whether the conduct engaged in by the respondents was dealt with in s 243 of the CLCA and accordingly, for the purposes of s 256(1), was conduct that was ‘otherwise dealt with in the preceding provisions of this Part’, meaning that the respondents could not be guilty of an offence against s 256(1); and (3) whether the defendants should be convicted of an offence under s 256(1).
Held: (1) the…

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 Police v Laughton

Details

AGLC: Police v Laughton [2012] SASC 102
Case: [2012] SASC 102
Decision Date: 13 June 2012

CaseChat Overview and Summary

In the matter of Police v Laughton, the respondents were charged with attempting to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The respondents were found not guilty by a Magistrate, a decision which was subsequently appealed by the prosecution. The appeal centred on the interpretation of statutory provisions and the applicability of the common law principles relating to attempts to pervert the course of justice.

The central legal issues revolved around the interpretation of s 256(1) of the CLCA, the incorporation of other statutory provisions, and the application of the common law principles regarding the offence of attempting to pervert the course of justice. Specifically, the court had to determine whether the respondents’ actions constituted an attempt to pervert the course of justice and whether the Magistrate had correctly applied the relevant legal principles in finding the respondents not guilty.

The court concluded that the Magistrate had erred in law by not considering the full implications of the statutory provisions and the common law principles. The court held that the respondents’ actions had the tendency to obstruct or pervert the course of justice, aligning with the common law principles established in The Queen v Rogerson and Meissner v The Queen. The court emphasised that the relevant act must have the tendency to frustrate or deflect judicial proceedings, regardless of whether it ultimately succeeded in doing so.

The appeal was dismissed, and the original finding of not guilty was upheld. The court found that the respondents’ actions did not constitute an attempt to pervert the course of justice under the principles set out in the cited High Court decisions. The court's decision underscored the importance of considering both statutory provisions and common law principles in determining the applicability of the offence of attempting to pervert the course of justice.

Orders

Orders of the court

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Background

Background to the litigation

I consider that the Magistrate erred in law in several respects. Those errors have affected the Magistrate’s approach to the facts. But a new issue has arisen on appeal.Facts The case was heard and decided on the basis of an agreed statement of facts and three tendered documents. The essential facts, so far as the agreed facts went, are as follows. On 19 August 2010, Ms Jenine Laughton was required by police to submit to a breath analysis. She did so at 3.10 am. The analysis produced a reading of 0.157 grams of alcohol in 100 millilitres of blood, this being the prescribed quantity of alcohol for the purposes of s 47A of the Road Traffic Act 1961 (SA) (the RTA). Subject to the police complying with various statutory requirements found in the RTA, the concentration of alcohol indicated by the breath analysis test as being present in the blood of Ms Jenine Laughton would be presumed to have been present in her blood at the time of the analysis and throughout the preceding period of two hours: s 47K of the RTA. That presumption, unless rebutted in a manner permitted by the RTA, would suffice as proof of a charge of driving a motor vehicle with the prescribed concentration of alcohol present in her blood, contrary to s 47B of the RTA. Ms Jenine Laughton requested, and was given, pursuant to s 47K(2a) of the RTA, an approved blood test kit. At about 7.00 am Ms Jenine Laughton returned to the relevant police station and requested another approved blood test kit. She was given one, and I will refer to it as the second kit. About 7.20 am her sister, Ms Kerrie Laughton, arrived at a local hospital with the second kit. Ms Kerrie Laughton identified herself to staff at the hospital as Ms Jenine Laughton. Under that pretence she provided a sample of her blood. This was to be placed in, and was placed in, containers in the second kit. Subject to proof of compliance with certain procedures prescribed by reg 11 of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (the Regulations), the result of an analysis of that sample of blood could be used as a basis for evidence supporting an argument that the breath analysing instrument had given an exaggerated reading of the concentration of alcohol present in Ms Jenine Laughton’s blood: s 47K(1a) of the RTA. This was, relevantly, the only way in which the presumption resulting from the breath analysis could be rebutted: s 47K(1) of the RTA. In brief, if Ms Jenine Laughton was prosecuted for driving while there was present in her blood the prescribed concentration of alcohol, contrary to s 47B(1) of the RTA, the result of the analysis of her breath would support a finding of guilt of that charge, unless the result of the analysis of the blood sample taken and dealt with under reg 11 supported evidence demonstrating that the breath analysis had given an exaggerated reading: s 47K(1a) of the RTA. The blood sample was placed in two containers. One container was given to Ms Kerrie Laughton, who then left. The other container was made available for collection by the police, who duly collected it. This was done pursuant to provisions of the RTA and of the Regulations. It was not an agreed fact that the statutory and regulatory requirements relating to the taking of, and analysis of, a blood sample had been met.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude that s 330 should not be read as an implied repeal of that part of s 256 that begins with the words “… in a manner”. That provision should, in my opinion, be treated as a special or particular provision, relating to offences of a public nature, and not affected by the general provision made by s 330.Conclusion For those reasons I would dismiss the appeal against conviction.

Ratio Decidendi

Legal Principle Established

It was for those reasons that the Magistrate found the defendants not guilty, and dismissed the Information.Consideration of appeal The relevant principles are settled by decisions of the High Court in The Queen v Rogerson [1992] HCA 25; (1992) 174 CLR 268 and in Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, in which case the former decision was treated as authoritatively stating the relevant principles. For present purposes it suffices to refer mainly to the reasons of Brennan J and Toohey J in Rogerson. The reasons of Mason CJ are consistent with their reasons, and there is no relevant inconsistency between their reasons and those of Deane J and McHugh J. At 279, Brennan J and Toohey J said:At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence. It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice.Footnotes omittedAs can be seen, their Honours focus on the tendency of the act, and on the intent with which the act is done. They went on to say at 280:The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. An act which effects any such impairment is the actus reus of a perversion of the course of justice. Footnotes omitted With reference to police investigations, and the link between such investigations and the course of justice, their Honours said at 283-284: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.In relation to the relevant principles, I refer, without setting them out, to the reasons of Mason CJ at 277-278, the reasons of Deane J at 293-294 and the reasons of McHugh J at 297-298. In these passages the members of the Court emphasise that the offence can be committed in relation to proceedings that have not been commenced, and that it is the tendency of the conduct in question which is significant, not whether the conduct did or did not bring about a perversion of the course of justice: Mason CJ at 277, McHugh J at 298. For a charge to succeed the act relied upon must have the required tendency to frustrate or deflect proceedings before a judicial tribunal. But the act relied upon could have the required tendency whether or not it remains for the person charged to do something in or in connection with the contemplated possible proceedings. Consideration of the “tendency” of the act or acts relied upon involves consideration of the possibility of that act perverting or frustrating the course of judicial proceedings. It is not essential that the act or acts have that tendency without the accused doing anything more.