R v Beckett

Case [2015] HCA 38

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, KEANE AND NETTLE JJ

THE QUEEN  APPELLANT

AND

BARBARA BECKETT  RESPONDENT

The Queen v Beckett

[2015] HCA 38

23 October 2015

S94/2015

ORDER

1.Appeal allowed.

2.Set aside orders 2 and 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 12 December 2014 and, in lieu thereof, dismiss the appeal to that Court.

On appeal from the Supreme Court of New South Wales

Representation

L A Babb SC with S C Dowling SC for the appellant (instructed by Solicitor for Public Prosecutions (NSW))

G O'L Reynolds SC with D P Hume for the respondent (instructed by Hammond Nguyen Turnbull)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Beckett

Criminal law – Attempt to pervert the course of justice – Where respondent questioned in compelled interview about property transfer she stamped for which no duty paid – Where respondent allegedly altered photocopies of cheques – Where respondent allegedly gave false evidence under oath – Where respondent charged with perverting the course of justice under s 319 of Crimes Act 1900 (NSW) – Whether offence of perverting the course of justice only applies to conduct committed after judicial proceedings commence – Whether "course of justice" within meaning of s 319 requires jurisdiction of court or competent judicial tribunal to have been invoked.

Words and phrases – "contemplated proceedings", "course of justice", "intention", "judicial proceedings", "pervert the course of justice", "tendency".

Crimes Act 1900 (NSW), s 319.
Taxation Administration Act 1996 (NSW), Pt 6, Div 2, s 72.

  1. FRENCH CJ, KIEFEL, BELL AND KEANE JJ. Section 319 of the Crimes Act 1900 (NSW) ("the Crimes Act") makes it an offence for a person to do any act, or make any omission, intending in any way to pervert the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings[1]. The issue in the appeal is whether liability for the s 319 offence is confined to acts or omissions carried out with the intention of perverting an existing course of justice. 

    [1]R v Rogerson (1992) 174 CLR 268 at 276 per Mason CJ, 283 per Brennan and Toohey JJ, 303-304 per McHugh J; [1992] HCA 25.

    Procedural history

  2. The respondent was arraigned in the District Court of New South Wales (Sweeney DCJ) on an indictment which charged her with an offence under s 319 ("count one") and, in the alternative, with making a false statement on oath under s 330 of the Crimes Act ("count two"). The conduct giving rise to each offence is alleged to have taken place during the course of a compelled interview conducted under the Taxation Administration Act 1996 (NSW) ("the TA Act") between the…

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R v Beckett [2015] HCA 38
Case
[2015] HCA 38
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by the Director of Public Prosecutions against an order of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had permanently stayed the prosecution of the respondent for perverting the course of justice under section 319 of the *Crimes Act 1900* (NSW). The respondent, a solicitor, was alleged to have altered photocopies of cheques and given false evidence under oath during a compelled interview concerning property transfers for which no duty had been paid. The core of the dispute concerned whether the offence of perverting the course of justice under section 319 could apply to conduct committed before the commencement of judicial proceedings.

The legal issue before the High Court was whether the offence of perverting the course of justice under section 319 of the *Crimes Act 1900* (NSW) is confined to conduct occurring after judicial proceedings have commenced, or if it extends to acts done with the intention of frustrating or deflecting contemplated judicial proceedings. The Court was required to determine the meaning of "course of justice" within the context of section 319 and whether it necessitates the prior invocation of a court's or tribunal's jurisdiction.

The High Court allowed the appeal, finding that the submission of the appellant that an act done before the commencement of judicial proceedings could constitute an offence under section 319, where done with the intent to frustrate or deflect contemplated judicial proceedings, must be accepted. The Court indicated that, for the time being, trial judges should continue to direct juries that proof of an offence under section 319 requires proof beyond reasonable doubt that the accused performed the alleged act or omission, that this act or omission had a tendency to pervert the course of justice, and that it was intended to pervert the course of justice. The orders of the Court of Criminal Appeal permanently staying the prosecution were set aside, and the appeal to that Court was dismissed.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 2 and 3 of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 12 December 2014 and, in lieu thereof, dismiss the appeal to that Court.

Background

Background to the litigation

On 15 May 2015, Kiefel and Bell JJ granted the Director of Public Prosecutions special leave to appeal. The appellant submits that an act done before the commencement of judicial proceedings may constitute an offence contrary to s 319 where it is done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted. For the reasons to be given, that submission must be accepted. The orders of the Court of Criminal Appeal made on 12 December 2014 permanently staying the prosecution of the offence charged in count one must be set aside and, in lieu thereof, the appeal to that Court be dismissed. The factual background On the hearing of the motion before Sweeney DCJ the prosecution tendered the evidence on which it proposed to rely at the respondent's trial. This included the oral evidence of the two OSR officers who conducted the interview. The EDR scheme The respondent is a solicitor. As at June 2010, the respondent was an approved person under the Electronic Duties Returns ("EDR") scheme operated by the OSR under the TA Act[6]. The EDR scheme permits the Chief Commissioner of State Revenue ("the Commissioner"), by written notice, to give approval for a special arrangement for the lodging of returns and payment of tax to a specified agent on behalf of taxpayers of a specified class (an "approval")[7]. An approval may authorise the lodging of returns and payments of tax by electronic means[8]. An approval is subject to conditions specified by the Commissioner in the notice of approval or by subsequent written notice[9].[6]TA Act, Pt 6, Div 2.[7]TA Act, s 37(1)(b).[8]TA Act, s 37(2)(b).[9]TA Act, s 39(1). The respondent's approval was issued on or about 24 February 2003. She was approved to stamp transfers of real property upon receipt of a notice of assessment using accountable stamps issued by the OSR. The duty was to be paid by "return". The respondent's "return frequency period" was weekly, commencing on each Sunday. She was required to lodge payments of duty on or before the following Thursday of each week. In April 2007, the OSR issued a document titled "Directions for Using Electronic Duties Return" ("the EDR Directions"). The respondent was sent a copy of the EDR Directions and was asked to complete an "EDR – Application for Approval of Special Tax return Arrangements" form ("the application"). The respondent signed the application on 21 June 2007. The EDR Directions contained a statement of the "Settlement Policy":"An approved person must have the duty payable available to them prior to processing transactions online. This is the case for all EDR transactions except those where the duty payable will be collected at settlement."The Darling Point unit transaction In July 2009, the respondent wrote to the OSR requesting that the transfer of a unit in Darling Point be assessed for nominal duty only. The property was being transferred by the trustee of a family trust to a beneficiary of the trust. It appears the respondent considered the transfer fell within an exemption under the Duties Act 1997 (NSW) ("the Duties Act")[10]. In March 2010, the respondent was informed that the transfer did not qualify for the exemption and was liable to payment of ad valorem duty. [10]s 55(1)(b).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL AND KEANE JJ NETTLE J
Possibly, as was conjectured in Einfeld, there may be convincing arguments to be made in favour of a more expansive interpretation of the section. But, if there are, they have not been made in this case. The most that the Crown offered was a submission in writing in which it was noticed that the Court of Appeal and the Court of Criminal Appeal, constituted by the same judges, in R v Murphy[67] interpreted tendency for the purposes of the offence created by s 43 of the Crimes Act 1914 (Cth) as a tendency to further or fulfil the purpose or intention of perverting the course of justice, as opposed to a tendency to achieve the end of perverting the course of justice; and a contention, as I understood it, that the offence created by s 319 is consistent with the approach in Murphy because s 319 is couched in terms of "any act". Quite how that conduces to a conclusion that s 319 requires no proof of tendency remains elusive.[67](1985) 4 NSWLR 42 at 50-51.Conclusion In the result, until and unless this Court has had the benefit of full and convincing argument on the point in a case in which the issue truly arises, I should not be disposed to depart from Charles. I consider that, for the time being, trial judges should continue to charge juries, consistently with Charles, that proof of an offence under s 319 requires proof beyond reasonable doubt that the accused did the act or omission alleged, that the act or omission had a tendency to pervert the course of justice and that the act or omission was intended to pervert the course of justice.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL AND KEANE JJ, NETTLE J

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