QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 1 OF 2008) - [2008] SASC 329

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
Question of Law Reserved (NO 1 OF 2008)
QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 1 OF 2008)
[2008] SASC 329
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
26 November 2008
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - OTHER OFFENCES
Question of Law Reserved - whether the offence of Conspiracy to Attempt to Pervert the Course of Justice contrary to Section 256(1) of the Criminal Law Consolidation Act 1935 (SA) and Common Law is an offence known to the law of South Australia.
Held: The offence created by s 256, namely attempting to pervert the course of justice, is a substantive and not an inchoate offence - conspiracy to attempt to pervert the course of justice an inchoate offence and known to the law of South Australia - Question of Law Reserved answered 'yes'.
Criminal Law Consolidation Act 1935 (SA) s 256, s 270A, s 350(2)(b); Statutes Amendment and Repeal (Public Offences) Act 1992 (SA), referred to.
The Queen v Rogerson (1991-1992) 174 CLR 268; Meissner v The Queen (1994-1995) 184 CLR 132, applied.
R v McGee & Anor [2007] SADC 10; (2007) 247 LSJS 95, discussed.

Question of Law Reserved (NO 1 OF 2008)
QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 1 OF 2008)
[2008] SASC 329
Court of Criminal Appeal: Doyle CJ, Gray and White JJ

DOYLE CJ: These reasons are to be read with my reasons in R v McGee& McGee [2008] SASC 328. In those reasons I deal with an appeal against the dismissal of an application by the McGees for a stay of the proceedings against them.
In these reasons I deal with the attack on the Judge’s decision in R v McGee & Anor [2007] SADC 10; (2007) 247 LSJS 95. In those reasons the Judge declined to quash the Information on the ground that it charges an offence not known to the law of South Australia.
Exercising the power conferred by s 350(2)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) the Judge has reserved for consideration by the Court of Criminal Appeal the following question:
Was I correct in deciding in R v McGee & Anor [2007] SADC 10 that the offence of Conspiracy to Attempt to Pervert the Course of Justice contrary to Section 256(1) of the Criminal Law Consolidation Act, 1935 and Common Law, is an offence known to the law of South Australia?
I will not repeat any of the background matters.
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).
The Information (as amended) contains the following “Statement of Offence”:
Conspiracy to attempt to pervert the course of justice. (Common law and s 256(1) of the Criminal Law Consolidation Act 1935.)
The particulars of the offence are:
The accused conspired to attempt to pervert the course of justice in so far as they agreed to frustrate, deflect or prevent members of the South Australian Police Force from investigating or adducing evidence of the blood alcohol reading and sobriety of Eugene McGee at the time of a collision between a Mitsubishi Pajero motor vehicle driven by Eugene McGee and a bicycle ridden by Ian Humphrey that occurred on the Kapunda to Gawler Road at approximately 5.05 pm on the 30^th November 2003 by preventing or impeding members of the South Australian Police Force, and in particular those charged with the investigation into the circumstances of the collision, from making contact with Eugene McGee for a period of hours after the collision.
The District Court Judge rejected the submissions made to him by counsel for the McGees. His conclusion is found in the following paragraph from his reasons:
[35]In this case, Section 256(1) makes it an offence to attempt to pervert the course of justice. That is the unlawful act. It is that offence which is the object of the conspiracy alleged against the Defendants. Accordingly, in my opinion, the common law recognises the offence of conspiracy to attempt to pervert the course of justice, being the offence contained in Section 256(1) of the Act.
On appeal, no submissions were made by Mr Game SC or by Ms Powell QC in support of the attack on the Judge’s decision. Mr Hinton QC, for the Director of Public Prosecutions, made only brief submissions by way of response. In the light of that, I can only assume that the argument advanced is intended to be the same as the argument advanced before the District Court Judge.
As recorded by the Judge, the submission was that the only relevant substantive offence known to the common law was that of attempting to pervert the course of justice. There was no substantive offence of perverting the course of justice. On the other hand, “the only conspiracy offence at common law” was apparently said to be the offence of conspiracy to pervert the course of justice. There was no common law offence of conspiring to attempt to pervert the course of justice: McGee No 1 at [5] and [8]. In his reasons the Judge noted that after hearing some further submissions, he concluded that there was little difference between the oral submissions put to him. The submission for the McGees was that the appropriate offence, if an offence is to be charged, that of conspiracy would be to pervert the course of justice, and not conspiracy to attempt to pervert the course of justice: McGee No 1 at [37].
Section 256 of the CLCA was inserted into the CLCA by the Statutes Amendment and Repeal (Public Offences) Act 1992 (SA) (“the Amendment”). The Amendment inserted into the CLCA a new Part 7, headed “Offences of a Public Nature”. The Amendment was intended to modernise the law relating to offences of a public nature. In the course of the Second Reading speech, the Attorney-General stated that s 256 “retained and codified” the common law offence of attempting to pervert the course of justice. It was intended as a “catch-all” provision: Hansard, Legislative Council, 26 November 1991, p 2248.
In my opinion there is a short answer to the submission advanced on appeal. The offence of attempting to obstruct or to pervert the course of justice is a substantive offence, not an inchoate offence. In this respect it differs from the usual offence constituted by an attempt to commit an offence, either at common law or, in this State, contrary to s 270A of the CLCA. That being so, there may be a conspiracy to attempt to pervert the course of justice. Such an offence is an inchoate offence, being founded on the agreement made by the conspirators. Whether there is any difference between a charge of conspiring to attempt to pervert the course of justice, and the offence of conspiring to pervert the course of justice may be doubted, but that can be left for another day.
The opinion that I have expressed is supported by decisions of the High Court, that bind this Court. It is necessary to refer to two decisions only.
The first is The Queen v Rogerson (1991-1992) 174 CLR 268. Mason CJ said at 277-278:
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency. …
Accordingly, I agree with Brennan and Toohey JJ that 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, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.
Footnotes omitted
Brennan and Toohey JJ said at 279-280:
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. A conspiracy to pervert the course of justice, like any other conspiracy to commit an offence, is an inchoate offence in the sense that it is complete without the doing of any act save the act of agreeing to pervert the course of justice. Such an agreement imports a common intention among the conspirators that an act be done by somebody which will have the effect of perverting the course of justice. …
Footnotes omitted
I draw attention to their statement that attempting to pervert the course of justice is a substantive offence. They made it plain that a conspiracy to pervert the course of justice can be entered into even though no relevant proceedings are on foot. They said at 281:
A conspiracy to pervert the course of justice may be entered into though no proceedings before a court or before any other competent judicial authority are then pending or are even contemplated by anyone other than the conspirators. …
Footnotes omitted
They also explained that although police investigations into possible offences do not form part of the course of justice, an act which has a tendency to deflect the police from prosecuting a criminal offence can be an act which tends to pervert the course of justice: at 283-284. McHugh J said at 297-298:
To attempt to pervert the course of justice is a common law misdemeanour. The origin of the offence is obscure but it appears to have developed from the law which came to be categorized as a conspiracy to pervert the course of justice. As the English Court of Appeal pointed out in Reg v Rowell, however, the "use of the word ‘attempt’ in this context is misleading". The essence of the offence is "the doing of some act which has a tendency and is intended to pervert the administration of public justice". An attempt to pervert the course of justice is a substantive and not an inchoate offence. In Reg v Machin, the Court of Appeal pointed out that the word "attempt” “is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice." It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice.
Footnotes omitted
The other decision to which I refer is Meissner v The Queen (1994-1995) 184 CLR 132. At 140-141 Brennan, Toohey and McHugh JJ said:
A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. Attempting to pervert the course of justice is a substantive offence. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive.
Footnotes omitted
At 156-157 Dawson J said:
The use of the word "attempt" is misleading; the offence is substantive and not inchoate. It is the tendency of conduct to pervert the course of justice coupled with the intention to do so which provides the substance of the offence and it is immaterial whether any interference with the administration of justice actually occurs. There is no comprehensive definition of the means by which the course of justice may be perverted, but one of the ways in which that may occur is when a court is denied knowledge of the true circumstances of the case.
Footnotes omitted
In enacting s 256, in the context in which it did so, Parliament must be taken to have intended to replicate the common law. Whether Parliament has eliminated the distinction between the offence of attempting to pervert the course of justice, and perverting the course of justice need not here be decided. Although it is not necessary to decide it, I am inclined to the view that proof of the doing of an act which actually perverts the course of justice would (if accompanied by the relevant mental elements) amount to proof of an offence against s 256, but, I emphasise, it is not necessary to decide this. What is clear is that the offence constituted by s 256 is not an inchoate offence. The essence of the offence is the doing of an act which has a tendency and is intended to pervert the administration of justice. Accordingly, there can be a conspiracy to commit such an offence.
Again, although it is unnecessary to decide it, my tentative view is that it would make no difference at all to the present case if the offence charged was that of conspiring to pervert the course of justice. However, no doubt as a matter of caution, it was thought safer to lay the charge in terms that replicate the relevant parts of s 256 of the CLCA.
The Judge was right to decline to quash the Information as amended.
I would answer the question reserved as follows: Yes.
GRAY J.
The following question of law has been reserved for the consideration of this Court, pursuant to section 350(2)(b) of the Criminal Law Consolidation Act1935 (SA):
Was I correct in refusing to quash the Information upon ruling that the charge contained in the Information discloses an offence known to the law of South Australia?
This Court heard submissions on the substance of the questions reserved at the same time that it heard the appeals by Eugene Norman McGee and Craig Patrick McGee against other decisions of the same District Court Judge arising in the same proceedings.
The background to the consideration of the question reserved is to be found in my reasons for dismissing those appeals. My reasons in the appeal proceedings are to be read with my reasons in these proceedings. In the course of those reasons, I give consideration to the nature of the offence alleged in the Information, and in particular, I express my preliminary view that the common law offences of attempting to pervert the course of justice and perverting the course of justice continue with force and effect in South Australia. If my preliminary view is correct then the Information discloses an offence known to the law of South Australia.
As indicated in my reasons in the appeal proceedings, I would, for my part, hear the parties further on whether the common law offences of perverting the course of justice or attempting to pervert the course of justice continue with force and effect in South Australia.
I have given consideration to the alternative position, namely, that the Information alleges a conspiracy to pervert the course of justice, and the object of the conspiracy is an attempt to pervert the course of justice within the meaning of subsection 256(1). In those circumstances, I agree with the reasons of Doyle CJ for declining to quash or strike out the Information.
The District Court Judge was correct in refusing to quash the information. I agree with the answer proposed by Doyle CJ.
WHITE J: I agree with the answer proposed by the Chief Justice to the Question of Law Reserved for Consideration of the Full Court. I also agree with his reasons.