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 Magistrate misdirected herself as a matter of law and failed address the issues of fact that had to be considered; (2) the respondents were guilty of an offence against s 256 – however, the facts relied upon to establish a breach of s 256 fell within s 243 and the circumstances establishing a breach of s 243 also established a breach of s 256(1) – the conduct relied upon to prove the attempt to obstruct or pervert the course of justice was therefore “otherwise dealt with” in s 243 – the defendants could not be convicted of an offence against s 256(1) – the Magistrate was correct to dismiss the Information
Prosecution appeal against the Magistrate’s dismissal of the Information dismissed.
Criminal Law Consolidation Act 1935 (SA) s 243, s 243(a), s 243(b), s 256, s 256(1), s 256(2), s 330; Road Traffic Act 1961 (SA) s 47A, s 47B, s 47B(1), s 47K, s 47K(1), s 47K(1a), s 47K(2a), s 47K(2a)(a); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 11; Statutes Amendment and Repeal (Public Offences) Act 1992 (SA), referred to.
The Queen v Rogerson (1992) 174 CLR 268; R v McGee and McGee (2008) 102 SASR 318, discussed.
Meissner v The Queen (1995) 184 CLR 132, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"tendency", "attempt to obstruct or pervert the course of justice", "in a manner otherwise dealt with in the preceding provisions"

POLICE v LAUGHTON
[2012] SASC 102
Magistrates Appeal: Criminal

DOYLE CJ: A Magistrate found the two defendants not guilty of a charge of 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) (the CLCA). The Magistrate dismissed the Information alleging the offence. In the name of Police the prosecutor has appealed against the dismissal of the complaint.
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.
It appears that the police suspected that a deception had been practised. It was an agreed fact that the signature on certain documents signed by Ms Kerrie Laughton (while pretending to be Ms Jenine Laughton), did not match a signature on documents held by the police. The police had the blood sample analysed. The analysis indicated that no alcohol was present in the blood sample, but that a prescribed drug (cannabis) was present. The police had a DNA analysis performed. This indicated that the blood in the sample came from Ms Kerrie Laughton.
The police charged the defendants on 30 August 2010 and on 31 August 2010. Each of the defendants refused to answer any questions. When the matter came before a magistrate for hearing, Ms Kerrie Laughton had not been charged with an offence against s 47B of the RTA.
The offence
Section 256 of the CLCA provides:
256—Attempt to obstruct or pervert course of justice or due administration of law:
(1) A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.
Penalty: Imprisonment for 4 years.
(2) Where—
(a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but
(b)the court is satisfied that the accused is guilty of an offence against subsection (1), the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).
As I have already indicated, the charge against each of the defendants was that she attempted to obstruct or pervert the course of justice or the due administration of the law, contrary to s 256(1) of the CLCA.
In response to a request for particulars of the charge, the following information was provided by police:
Ms Kerrie Laughton and Ms Jenine Laughton on 19 August 2010 at …. attempted to pervert the course of justice or the due administration of the law by obstructing the investigation by members of the South Australia Police into the driving of a motor vehicle whilst the driver, Ms Jenine Laughton, had a prescribed concentration of alcohol present in her blood.
The Magistrate’s reasons
After reciting at some length the submissions, the Magistrate made her findings and set out her conclusions in the final part of her reasons. The Magistrate found that the course of justice or the due administration of the law had not commenced, because no charge had been laid for the alleged offence against s 47B of the RTA. Accordingly, the Magistrate said at [47]:
In the circumstances, the only way in which interference with police investigations can amount to the offence of attempting to pervert the course of justice must be 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. This must be done with intent to achieve that result and it must impair the court’s capacity to do justice in the actual circumstances of the case.
Footnote omitted
The Magistrate then said at [49]:
I agree with defence submissions that the conduct which the prosecution rely upon as having the tendency to pervert the course of justice must by itself, and without the defendants doing anything more have that tendency.
The Magistrate went on to say that neither defendant had reason to think that the police would rely upon the blood test for the purposes of the prosecution, and that Ms Jenine Laughton had not relied upon the blood test in any way. The Magistrate said at [49]:
I find that unless Ms Jenine Laughton submitted the blood test to prosecution to have the charge of drink driving dropped or had sought to tender the blood test in court, prosecution would never use or rely on the blood test. This is further supported on the basis of the original written notice provided to Ms Jenine Laughton pursuant to s 47K(2a)(a) of the Road Traffic Act, 1961 which makes no mention that the police would be given the blood sample. As there is no evidence in this case that Ms Jenine Laughton used the blood sample as rebuttal evidence or, that the procedures for voluntary blood test pursuant to reg 11 had been complied with by Ms Jenine Laughton, I find that the defendants’ acts did not have the tendency to pervert the course of justice. I accept the submissions by defence counsel in their totality in reaching that finding.
Footnotes omitted
A little later the Magistrate said that it was “far fetched” to contemplate that the police might not have proceeded with the prosecution of Ms Jenine Laughton as a result of the analysis of the blood sample. The Magistrate said at [50]:
I find that based on the relevant circumstances of this case and the relevant legislation, the result of the blood sample, whether it had been given by Jenine Laughton or Kerrie Laughton, would never have formed part of the prosecution case. It therefore had no “tendency” to cause a prosecution of Jenine Laughton to not proceed.
The Magistrate repeated her finding that the provision of the blood sample by Ms Kerrie Laughton, while impersonating her sister, was not a sufficient act, and could not be a sufficient act unless Ms Jenine Laughton had relied upon the result of the blood sample on a prosecution for an offence against s 47B of the RTA.
Having found that an act of the required kind had not been proved, the Magistrate considered the intention of the defendants. The Magistrate said at [53]:
The prosecution must also prove beyond reasonable doubt that the defendants intended by their acts to pervert the course of justice. I accept that there is no evidence that the defendants knew that the sample of blood Kerrie Laughton gave would be split into two after her blood had been taken and half would be retained by the hospital. I accept that neither defendant knew what would happen to the sample of blood the hospital retained. In the circumstances, I accept that the evidence also leaves open the reasonable possibility that the defendants had not yet decided if the blood sample Kerrie Laughton had given would be analysed by Jenine Laughton’s own analyst. Nor had they decided if evidence of the analysis of the blood sample would be tendered in evidence by Jenine Laughton at her drink driving prosecution to attempt to rebut the presumption arising from s 47K(1) of the Road Traffic Act, 1961. Given that the blood sample of Kerrie Laughton revealed the presence of a prescribed drug, it is most unlikely that Jenine Laughton would have wanted to tender in evidence her sister’s blood sample to rebut the presumption anyway.
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 omitted
As 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.
The particulars provided by the prosecutor (set out above) are not particularly apt to the case. They have a tendency to divert attention from the point made by Deane J at 294 (relating to the offence of conspiracy):
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.

It is desirable to identify more directly the act or acts and the intention that had to be established if the defendants were to be convicted. The prosecution case must have been that Ms Jenine Laughton told Ms Kerrie Laughton about the incident as a result of which she was required to submit to a breath analysis, about the result of that analysis, and about the likelihood of Ms Jenine Laughton being charged with an offence against s 47B of the RTA. The prosecution must also have been alleging that Ms Jenine Laughton and Ms Kerrie Laughton agreed that Ms Kerrie Laughton would take the second kit, go to the local hospital with the second kit, and there provide a blood sample to be dealt with in accordance with the instructions relating to the second kit, pretending all of the time to be Ms Jenine Laughton, and intending that the blood sample from Ms Kerrie Laughton would appear to be from Ms Jenine Laughton. The prosecution case was that Ms Jenine Laughton and Ms Kerrie Laughton agreed that in this way, and through this deception, they would fabricate a deceptive blood sample. They would fabricate a false and deceptive sample, knowing that the analysis of that sample could be used in evidence to defend proceedings, should Ms Jenine Laughton be charged with an offence against s 47B of the RTA. The timing and sequence of events means that it would not be difficult to draw this inference.
The police must also have been alleging that the defendants acted in this manner with a view to fabricating evidence that might be used either to dissuade the police from prosecuting Ms Jenine Laughton, or to mislead the court were she to be prosecuted, by providing a false and deceptive basis upon which evidence could be led in an attempt to rebut the statutory presumption created by s 47K in a manner permitted by s 47K(1a) of the RTA.
In the light of the agreed facts it would not be difficult to conclude that there was an agreement to fabricate evidence, with the intention that the evidence could be used to deflect proceedings against Ms Jenine Laughton (by persuading the police not to proceed), or to deceive the court if proceedings were brought. It is true that at the relevant time the proceedings had not been instituted. Nor was it known that proceedings would be instituted, although it was likely that they would. But the essence of the offence, as I understand it in the present case, is the fabrication of a false and deceptive item, the blood sample, which could be used to deflect or to defeat proceedings against Ms Jenine Laughton.
The Magistrate said at [53] that she was not prepared to infer that the defendants knew that half of the blood sample to be provided by Kerrie Laughton would be retained at the hospital, and made available to the police for analysis. That may be. But that was only one aspect of the prosecution case. It was open to the Magistrate to find that the false and deceptive blood sample was created with a view to Ms Jenine Laughton using the analysis of that sample to persuade the police not to proceed with the prosecution against her, or to defeat proceedings brought against her.
In short, it was the prosecution case, and it was not difficult to find, that the defendants agreed to and did create a false and deceptive blood sample, in the context of probable proceedings against Ms Jenine Laughton; that what they did was calculated to mislead the police and, to head off proceedings or, in the event of proceedings, to impair the Court’s capacity to do justice, and that it was done with that intention, meaning that fabricated evidence should be available for use by Ms Jenine Laughton if she saw fit.
In her reasons at [49] and at [52] the Magistrate said that the act relied upon by the prosecution as having a tendency to pervert the course of justice “… must by itself, and without the defendants doing anything more have that tendency”. As the extracts from her reasons show, this was central to her decision. In my opinion that is not correct. I accept that the act relied upon must have the tendency to pervert the course of justice. But a charge might relate to an act performed when no proceedings have been commenced, and when none might be commenced. In such a case there might yet be something that has to be done by the defendant before any tendency of the act in question can be effective to achieve the desired result. It was necessary for the prosecution to prove the commission of an act that had the tendency to pervert the course of justice. But it was not necessary to show that the act would have that tendency, without the defendant doing anything more than the defendant has already done. I consider that one of the more obvious instances of an offence under the section in question is the bribing of a witness to fabricate evidence to be given in anticipated criminal or civil proceedings against the giver of the bribe. On the approach taken by the Magistrate the offence would not be committed unless and until the witness was called to give evidence for the party giving the bribe, because unless the witness was called the giving of the bribe would not, on the Magistrate’s approach, be sufficient. Until the witness was called by the giver of the bribe, a step remained to be taken by the giver of the bribe. In my opinion the Magistrate’s approach overlooks the emphasis in the authorities on the tendency of the act in question, bearing in mind that the relevant proceedings might not yet be on foot, and on the intention with which the relevant act is done. Accordingly, the Magistrate was wrong to find that the offence had not been committed, and could not have been committed, unless and until Ms Jenine Laughton relied upon the analysis of the blood sample in court, or used it to try to persuade the police not to prosecute her.
The Magistrate also found at [49] that the agreed facts did not establish that the blood sample was taken and dealt with in accordance with the requirements of reg 11 of the Regulations. It was not necessary for the prosecution to prove that the deception in which Ms Jenine Laughton and Ms Kerrie Laughton engaged was going to succeed. The issue was the tendency of the act that they did, and the intention with which they did it.
I do not agree with the Magistrate’s finding at [50] that it was “far fetched” to speculate that the police might not have proceeded with the prosecution had they been provided with the result of an analysis of the blood sample given by Ms Kerrie Laughton, and an analysis that no alcohol was present. But, whether I am right or wrong in that, the point is not whether the deception would have succeeded. The point is, once again, the tendency of the conduct in which the defendants engaged, and the intention they had when they engaged in that conduct.
At [53] of her reasons the Magistrate reasoned that neither defendant knew that the blood sample would be divided, and that half of the sample would be retained by the hospital. Nor, as she found, did they know what would be done with that sample. Even if that finding stands, it was open to the Magistrate to find, and it would not have been difficult to find, that the defendants engaged in the deception to which I have referred with the intention that the analysis of the blood sample be used either to persuade the police not to prosecute, or to mislead the court in the event of a prosecution. Accordingly, this finding by the Magistrate does not of itself justify the finding that the defendants were not guilty.
In the same paragraph the Magistrate went on to say that it was a reasonable possibility that the defendants had not yet decided whether or not Ms Jenine Laughton would have the blood sample analysed, and had not decided whether the blood sample would be tendered in evidence should Ms Jenine Laughton be prosecuted. That reasoning overlooks the circumstance that the prosecution case must have been that the defendants agreed to fabricate false evidence, or material that could be used as evidence, and did so, intending that Ms Jenine Laughton could use it to persuade the police not to prosecute, or to defeat the prosecution, if it became necessary to do so and if she desired to do so. The circumstance that the need to use the fabricated evidence might not arise, or the circumstance that Ms Jenine Laughton might change her mind, does not mean that no offence was committed when the sample was fabricated. The Magistrate’s conclusion might be used to support a finding that the defendants did not fabricate an item of potential evidence with an intention to pervert the course of justice. But, the Magistrate’s reasons suggest that she considered that unless a definite and unconditional decision had been made that the blood sample would be analysed and that the result would be used, the defendants could not be guilty. That is not correct. It would have sufficed for a finding of guilt that the Magistrate found that the defendants intended to create a deceptive blood sample that could be analysed and could be used, should the occasion arise, and should Ms Jenine Laughton so desire.
For these reasons I consider that the Magistrate has misdirected herself as a matter of law. She has failed to address the issues of fact that had to be addressed.
Subject to the notice of contention, it would be appropriate to set aside the finding of not guilty and the dismissal of the Information, and to decide the matter myself or to remit the matter to the Magistrates Court for further hearing.
Notice of contention
I turn to the notice of contention filed on behalf of the defendants. It raises an issue not argued before the Magistrate.
Section 243 of the CLCA provides as follows:
243—Fabricating, altering or concealing evidence
A person who—
(a)fabricates evidence or alters, conceals or destroys anything that may be required in evidence at judicial proceedings; or
(b)uses any evidence or thing knowing it to have been fabricated or altered,
with the intention of—
(c)influencing a decision by a person whether or not to institute judicial proceedings; or
(d)influencing the outcome of judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time),
is guilty of an offence.
Penalty: Imprisonment for 7 years.
I have already set out s 256 of the CLCA. Mr Henchliffe, counsel for the defendants, submits that the conduct relied upon by the prosecutor is dealt with in s 243 of the CLCA, and accordingly, for the purposes of s 256(1) is conduct that is “otherwise dealt with in the preceding provisions of this Part…”. Accordingly, the defendants cannot be guilty of an offence against s 256.
The meaning of this part of s 256 was raised and considered by the Court of Criminal Appeal in R v McGee and McGee [2008] SASC 328; (2008) 102 SASR 318.
In that case the submission was that for the purposes of s 256 it did not matter whether or not the defendant was guilty of an offence against another provision of the Part (s 243 of the CLCA as it happened), but whether another section dealt with the topic or subject matter relied upon to establish a breach of s 256 of the CLCA. I rejected that submission for the following reasons:
[99]I do not accept the premise upon which Mr Game's submission is based. It is not enough that a topic or activity can be identified that can be said to be the subject of another provision of Pt 7, whether or not the person is guilty of a breach of that provision. That approach introduces into s 256 a highly uncertain aspect. The present case illustrates my point. In my opinion s 243 does not speak to the circumstances relied upon by the DPP in proof of the charge under s 256. But if it is sufficient that a topic or subject matter is dealt with elsewhere, as Mr Game argues, how is that topic or subject matter to be identified?
White J agreed with my reasons in that respect: at [320].
Mr Henchliffe advanced a narrower submission. It is that if an offence against s 256 is established in the present case, the same evidence and findings will establish an offence against s 243, and therefore the defendants cannot be convicted of an offence against s 256, because the very conduct relied upon is dealt with by, and will give rise to an offence under, s 243 of the CLCA. I referred to such an argument in McGee, but did not need to decide it: McGee at [106].
If the present case falls within s 243, it must fall within s 243(a). There is no allegation that the defendants used something knowing it to have been fabricated or altered, as required for the purposes of s 243(b). As to s 243(a), it cannot be said that the defendants, on the prosecution allegations, altered, concealed or destroyed anything that might be required in evidence. That leaves only the question of whether, on the prosecution allegations, a finding of guilt of an offence against s 256 of the CLCA must involve a finding that the defendants fabricated evidence with the required intention, contrary to s 243(a) of the CLCA.
The clause in question is apparently intended to set a limit to the reach of s 256, a limit set by reference to the operation of earlier provisions of Part 7 of the CLCA. The clause suggests that s 256 is intended to operate as some kind of residual “catch all”. The Attorney‑General said as much in the Second Reading Speech on the Bill that inserted Part 7 into the CLCA: South Australia, Parliamentary Debates, Legislative Council, 26 November 1991, 2248 (Michael Atkinson, Attorney‑General). The issue is, how does this clause operate?
Part 7 of the CLCA is headed “Offences of a public nature”. Part 7 was enacted by the Statutes Amendment and Repeal (Public Offences) Act 1992 (SA). It is clear that Part 7 is an attempt to codify the law relating to offences of a public nature, and to do so using contemporary language. The provisions of Part 7 that precede s 256 create a number of offences (some 25 in all), relating to matters such as public office, public officers, the investigation and prosecution of offences, judicial proceedings and related matters such as jurors. The possibility that some of these offences will overlap with the operation of s 256 is evident. An obvious illustration is provided by s 243. The possibility of overlap is acknowledged by the provisions of s 256(2).
In McGee I did not accept an argument that conduct was “otherwise dealt with” if an earlier section dealt with a topic that covered conduct relied upon to prove an offence against s 256. I have set out above my brief reasons for rejecting that argument.
A breach of s 256(1) of the CLCA is established by proving beyond reasonable doubt the facts that amount to an attempt to obstruct or pervert the course of justice or the due administration of the law. The clause that begins “… in a manner…” must refer to those same facts. The clause provides, in effect, that the conduct must be conduct that is not “otherwise dealt with” in the earlier sections. Conduct can be said to have been dealt with by a provision if a person has been charged with an offence against that provision, and found guilty of that offence. In those circumstances one can readily say that the conduct has been dealt with in the preceding provision. It has been dealt with in the sense that the conduct has been the subject of judicial consideration and the finding has been made that the conduct is a breach of the preceding provision. I am satisfied that if the defendants had been convicted of an offence against s 243, on the basis of the facts now before the Court, they could not later have been charged with a breach of s 256 of the CLCA relying on the same facts. The answer to that charge would be that the conduct relied upon to prove a breach of s 256 had been dealt with by the findings that that same conduct amounted to a breach of s 243 of the CLCA. If, in the same circumstances, the defendants had been charged with a breach of s 243 of the CLCA and found not guilty of that offence, the defendants could be convicted of a breach of s 256 of the CLCA, relying on the provisions of s 256(2) of the CLCA. There is no tension between s 256(1) and s 256(2). In the circumstances now under consideration, the relevant conduct would not have been dealt with in s 243.
What if, as is said to be the case here, there has been no prior conviction for an offence against s 243, and on a charge of an offence against s 256(1) it is found that the facts that establish a breach of s 256(1) also establishes a breach of s 243(a)? It might be said that the conduct in question has not been dealt with in s 243 of the CLCA, because no finding of guilt has been made in relation to s 243. The court will have decided only that had a charge been brought under s 243, a finding of guilt would have been made. But the conduct can be said to be dealt with in s 243, because s 256(1) uses the expression “dealt with in the preceding provisions…” in a manner that suggests that the intention is to act upon a judicial finding that the preceding provision applies to the facts and not only on the recording of a conviction.
There are some practical difficulties with this approach. It means that on a charge under s 256 of the CLCA the defence would be likely to raise by way of defence the possibility of a finding of guilt under a preceding provision of Part 7 of the CLCA. This could make a trial difficult to manage, because a finding that any of the preceding provisions is applicable will suffice for the purposes of the defence. There are two answers to this objection. The first is that s 256(1) is, as I have already remarked, apparently intended to operate as a “catch all” provision. In most cases the answer to the problem will be to charge an offence or offences under one or more of “the preceding provisions”, and then to rely on a finding of a breach of s 256(1), relying on s 256(2), as a fall back. It appears that this is what Parliament intended. This could have been done here. Apart from that, there remains the cautionary note that I expressed in McGee at [104]:
[104]In any event, I express a note of caution about the submission by Mr Game, and the concession by Mr Hinton. I do not necessarily agree that the fact that some of the circumstances relied on to prove a charge under s 256 also give rise to an offence under another provision of Part 7 means that there can be no offence against s 256. For example, two persons might together destroy an item of evidence with the required intention for the purposes of s 243, but might also agree to do things that appear to fall under s 256. I doubt whether the circumstance that those persons have committed an offence under s 243 is necessarily a bar to a charge under s 256, or to treating the conduct in contravention of s 243 as part of the material relied upon in proof of the charge under s 256. My tentative opinion is that an offence under another provision of Part 7 must, as it were, cover the main ground covered by the offence alleged against s 256, before the commission of the other offence precludes a conviction under s 256. Otherwise a separate offence under Part 7, at the periphery of the circumstances relied on to prove a breach of s 256, would protect the alleged offender from a prosecution under the latter provision. Putting it differently, I am not satisfied that the conduct relied on as a breach of s 256 could not include conduct that would give rise to an offence under another provision in Part 7.
It is not necessary to decide that point now.
For these reasons I accept the submission made by Mr Henchliffe relying on the notice of contention.
Disposition of appeal
As the Magistrate erred in law, and found the defendants not guilty on an erroneous basis, that finding is liable to be set aside. If that arose, Mr Henchliffe urged me to decide for myself whether or not the defendants were guilty of the offence charged. He made the point that if the matter was remitted for trial before another Magistrate, it would proceed on the same agreed facts, and there was no point in a further trial before a Magistrate. Mr Grant, counsel for police, did not oppose this submission. Accordingly, I proceed to consider whether or not the defendants should be convicted of an offence under s 256(1).

Subject to the effect of the submission under the notice of contention, I would find the defendants guilty. I would draw the inference, and find beyond reasonable doubt, that the defendants agreed that Ms Kerrie Laughton would take the second kit and provide a blood sample, pretending to be Ms Jenine Laughton, and intending to create a fabricated blood sample apparently from Ms Jenine Laughton, the analysis of which could be used by Ms Jenine Laughton either to persuade the police not to charge her with an offence against s 47A of the RTA or to establish a defence to a charge under that section, if proceedings were brought against her. The creation of the fabricated and deceptive blood sample had a distinct tendency to pervert the course of justice because that blood sample could be used to create a fabricated and deceptive analysis of the blood sample, which if used as the defendants contemplated could hinder access to the court by way of a prosecution, or deny a court knowledge of the true circumstances, namely, that the sample in question was obtained from Ms Kerrie Laughton. The conduct of the defendants had this tendency, and that was their intention. This is so, even though the time or occasion to make use of the fabricated blood sample did not arise immediately. Even if it is a reasonable possibility that the defendants had not decided that Ms Jenine Laughton would in fact have the sample analysed, and did not in fact decide that she would make use of the analysis of the sample, it is sufficient for a finding of guilt that the defendants fabricated the blood sample intending to enable Ms Jenine Laughton to use it in the manner indicated if she wished. The tendency to pervert the course of justice arises from putting into her hands the fabricated blood sample, intending that she be able to use it to deflect or frustrate proceedings, should the need arise and should she wish to do so. In my opinion, that is enough. It is no answer to the charge that the analysis of the fabricated sample had not in fact been used to deflect or defeat a prosecution. It is no answer to the charge that Ms Jenine Laughton might have changed her mind and not made use of the fabricated sample. On the limited facts before the Magistrate I am satisfied that the arrangement and intention was that Ms Jenine Laughton be provided with a fabricated sample that she could use if and when she saw fit. On that basis, I would be prepared to find each of the defendants guilty as charged.
To do so there is no need to rely upon proof that one or other of the defendants knew that if a blood sample was taken, one half of that sample would be retained and made available to the police.
On those findings, the defendants have committed an offence against s 243(a) of the CLCA. They have fabricated evidence, fabricated evidence being the fabricated blood sample. I consider that this can be described as “evidence” even though it would have been consumed in the process of analysis. It can be described as evidence even though it would, even in that sense, only become evidence in the event of a prosecution. The defendants did this intending, on my findings, to influence a decision by the police whether or not prosecute Ms Jenine Laughton, or intending to influence the outcome of a prosecution should one be instituted. The facts relied upon to establish a breach of s 256 fall fairly and squarely within s 243, and the circumstances establishing a breach of s 243 also establish a breach of s 256(1). Accordingly, the conduct relied upon to prove the attempt to obstruct or pervert the course of justice or the due administration of the law is “otherwise dealt with” in s 243. It is not dealt with in a peripheral manner.
Accordingly, the defendants cannot be convicted of an offence against s 256(1). On that basis, the dismissal of the Information is correct.
There is one other matter that I should mention. In the course of his submissions, Mr Grant referred in passing to s 330 of the CLCA which provides:
330—Overlapping offences
No objection to a charge or a conviction can be made on the ground that the defendant might, on the same facts, have been charged with, or convicted of, some other offence.
This provision was enacted by the Criminal Law Consolidation (Offences of Dishonesty) Amendment Act 2002 (SA). That Act restates the law relating to offences of dishonesty. Those offences are now found in Part 5 of the CLCA, enacted by the amending Act. Section 330 was enacted at the same time. It is to be found in Part 9 of the Act, headed “Miscellaneous and Procedure”. It therefore appears that s 330 is not limited in its operation to offences of dishonesty. The Second Reading Speech relating to the amending Act throws no light on the scope of the operation of s 330. Neither counsel developed any submissions relating to s 330.
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.