R v Beckett; Beckett v The Queen
[2015] HCATrans 113
[2015] HCATrans 113
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S8 of 2015
B e t w e e n -
THE QUEEN
Applicant
and
BARBARA BECKETT
Respondent
Office of the Registry
Sydney No S11 of 2015
B e t w e e n -
BARBARA BECKETT
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 15 MAY 2015, AT 12.24 PM
Copyright in the High Court of Australia
____________________
MR L.A. BABB, SC: May it please the Court, I am the applicant in the first of those matters and the respondent in the second matter. I appear with my learned friend, MS S.C. DOWLING, SC. (instructed by Solicitor for Public Prosecutions (NSW))
MR R.A.S. SKILLER: May it please your Honours, I appear for the respondent in the first matter and the applicant in the second matter. (instructed by Hammond Nguyen Turnbull)
KIEFEL J: Yes, Mr Babb, I imagine you are going to deal with both matters at the same time.
MR BABB: At the same time; I am happy to do that, thank you, your Honour.
KIEFEL J: Or one after the other, preferably. Thank you.
MR BABB: Yes, certainly. I will start with my application, your Honours. In my submission, this is an important case for the grant of special leave to resolve the question of whether in relation to the New South Wales pervert the course of justice provision, it is limited to only applying to an act done with the intention to pervert the course of justice after curial proceedings have commenced, or whether it can apply to an act done with intent to pervert the course of justice with contemplation that curial proceedings may follow and with the intention to deflect or prevent those curial proceedings commencing.
KIEFEL J: It will be your case that the Court of Appeal misunderstood what was said, or misapplied what was said in Rogerson?
MR BABB: It is, your Honour, yes, and I can take your Honours through that. I say that the error is found at paragraph 111 of the judgment of the President. There the principle is said to be that you cannot under section 319 bring a prosecution where curial proceedings have not commenced, that is too absolute a proposition.
KIEFEL J: That was drawn from the distinction seen in Rogerson between an attempt to pervert the course of justice and the charge of perversion in the course of justice.
MR BABB: Interestingly, Rogerson was a charge of conspiracy to pervert the course of justice. There was, in fact, no real discussion about the difference between attempt and pervert because the Court was quite clear in saying that they were both substantive offences. Of course, the offence of pervert the course of justice, actual, can only be committed if there are curial proceedings on foot because there actually has to be a perversion of the course of justice but the attempt can occur prior to the commencement of curial proceedings.
When one looks at section 319, it actually very closely reflects the wording of the common law in relation to attempt to pervert the course of justice. It does not require anything beyond an act being done. So, it is substantive to that extent. The intention has to be perverting the course of justice which, similarly to the common law attempt provision, required an act done with intent and also with a tendency to pervert the course of justice.
BELL J: You say 319 is arguably broader since, provided you can prove the intent to pervert the course of justice, the actus reus need not have that tendency.
MR BABB: That is my submission. It was a question considered but not determined in the case of Einfeld before the Court of Appeal in New South Wales.
BELL J: Einfeld was somewhat different, was it not, in the sense that, if I recollect it, there was an administrative process on foot but no suggestion of curial proceedings, is that right?
MR BABB: No, quite so, your Honour, and here it is definitely not an administrative process. Section 125 of the Taxation Administration Act provides that offences under that Act shall go to either the local court or the Supreme Court in their summary jurisdiction.
BELL J: So, in part, in Einfeld, it was a question of what was to be – how was section 312 defining “pervert the course of justice” to be construed given the reference to “administration of the law”.
MR BABB: Exactly, and can I make it clear that I do not, in this application, seek to challenge that constriction in terms of the definition of what is the definition of “pervert the course of justice” as held in Einfeld, but I am only going to is whether 319 can extend to cover acts done before the commencement of curial proceedings.
KIEFEL J: This decision of the Court of Appeal is at odds with previous decisions?
MR BABB: It is, your Honour, yes, in particular, the most recent decision, a decision of OM, they just simply cannot stand together. The provisions under the codes in both Tasmania and Queensland very closely reflect the wording of the New South Wales section 319 and they follow the broader considerations and allow that offence to be brought even before the commencement of curial proceedings.
KIEFEL J: In relation to the second matter, is there anything you wish to add to your written submissions?
MR BABB: Only one – or two things very briefly, your Honour. There is something that has arisen in the reply about the capacity to bring the section 330 charge, it having not been through the committal process, and in the correspondence that my learned friend has included in the application book we have set out the response to that. It is that this issue – firstly, this issue was not raised either in the District Court or in the Court of Criminal Appeal as a basis for a stay of the proceedings.
BELL J: Was this an ex officio alternative count?
MR BABB: Yes.
BELL J: But there is no challenge before Judge Sweeney and none in the Court of Criminal Appeal.
MR BABB: None in the Court of Criminal Appeal, and it is all based on the same evidence so that there is no unfairness, there having been a committal in relation to the 319 count. The other point that I wish to make is in relation to – if I could just draw the Court’s attention to application book 58 in relation to my submission that this is not an appropriate vehicle to consider whether the Taxation Administration Act section 72 abrogates the right to silence. At the bottom of paragraph 53 on application book 58, that is a finding of President Beazley that:
The applicant was also advised in terms that preserved her right against self‑incrimination.
They are my submissions, thank you.
KIEFEL J: Yes, thank you. Yes, Mr Skiller.
MR SKILLER: Thank you, your Honours, there were just a couple of ‑ ‑ ‑
KIEFEL J: Perhaps you could move to the microphone, thank you.
MR SKILLER: Sorry, your Honours. The application that was made by the respondent ‑ and I will deal with the matters that my friend has raised shortly ‑ but on page 168 of the application book ‑ ‑ ‑
KIEFEL J: Are you dealing with your application first?
MR SKILLER: I just wanted to correct something in the application book, your Honours. It says:
It is submitted that the Court erred in its construction of s. 72 –
then it refers to pages 17 and 18 of the judgment. Unfortunately, I came into this matter fairly late and this actually was cut and pasted from the submissions that Mr Roser had actually prepared for the Court of Criminal Appeal and the reference to court is to the District Court judgment of Sweeney and it was pages 17 and 18 of her judgment. The same error occurs at paragraph 3.17 on the same page, where it says:
It is submitted that the Court erred in finding that DPP v Attallah ([2001] NSWCCA 17) was not “restricted –
et cetera, that is the District Court, Judge Sweeney. Your Honours, just as a preliminary matter, I will not take too much time, but the way this matter has proceeded all along has given me some disquiet because of the – to begin with the length of time allowed for the laying of a charge under the Taxation Administration Act is something like three years. After the interview took place in September 2010 between the Office of State Revenue and Ms Beckett, nothing was said to her for at least two years, or two and a half years, until, in fact, the summonses were laid under the Taxation Act ‑ ‑ ‑
KIEFEL J: How is this relevant to the questions of her special leave?
MR SKILLER: Your Honours, I suppose it really refers to our application for special leave because it shows that there was obvious injustice in not giving Ms Beckett the chance to reply to the subsequent findings that were made by the Office of State Revenue in relation to these cheques.
KIEFEL J: How does that advance your question about the quality of the evidence and whether or not the privilege extends to her?
MR SKILLER: Well, your Honours, it says in Calleija quite clearly that where an individual in a position like this officer of the State Revenue has certain powers that must be exercised responsibly with fairness to the accused and all along there has been this lack of due process or fairness or various words to describe it in relation to the way that Ms Beckett has been dealt with. I know this is not really getting off the point because it does affect the way one comes to a decision as to how the case should go. My friend is quite right in saying that this section 330, as your Honour pointed out, was added as a sort of a back‑up but, of course, whilst it is indictable it is quite clear that it could be dealt with in a summary fashion. That option has never been exercised or, in fact, proposed for it but it should really, in my opinion.
BELL J: One would never contemplate an alternative count in a case where the principal offence is indictable as it was severing the alternative with a view to then running proceedings in the local court in the event one did not succeed. It is perfectly conventional to ‑ ‑ ‑
MR SKILLER: Well, of course, that is true, your Honour, but I am really prefacing it on the basis that your Honours do not disturb the permanent stay on the 319 count. If that occurred, then, of course, the other matter could be dealt with summarily. Now, that would be, in my submission, the fair way that this matter should proceed. Now, I appreciate your Honours hearing the special leave application but the whole way the matter has proceeded and the way the Court has found in the Court of Criminal Appeal that the right of self‑incrimination was abrogated by the ‑ ‑ ‑
BELL J: Mr Skiller, how does that issuing ‑ the question of the interpretation of the Taxation Administration Act, how is it raised, in this case, when your client was cautioned that she need not answer any questions that might incriminate her? It makes the issue of the scope of the power under the Taxation Administration Act a somewhat hypothetical one insofar as you raise a question about whether or not it abrogates the privilege. No one sought to deny the privilege to your client.
MR SKILLER: Well, of course, section 72 of the Act does not say that – whilst it says that the parties must be put under oath to answer the questions, it does not say that they have to answer the questions. That is left open.
BELL J: But your client was informed that she need not answer any question that might ‑ ‑ ‑
MR SKILLER: I appreciate that, your Honours, but that is not what the section says. One has to rely on the alleged evidence of the fact that she was warned. The other section that deals with – I think it is section 128, I am sorry, I have not got it at my fingertips, but the one that talks about the prosecution under the Act says that there is an onus on the defence, after they go to Court and the prosecutor – there is an onus on the defence then to show that there was a reasonable basis for refusing to answer a question. The section 72 leaves it quite open.
KIEFEL J: But she did not refuse to answer the question.
MR SKILLER: I appreciate that, your Honour.
KIEFEL J: This is not the evidence that will be relied upon in proof of the offence.
MR SKILLER: Well, your Honour, it overlaps into the whole question of perverting the course of justice.
KIEFEL J: The only relevance of this evidence would be that the statement was made in order to show that the evidence in relation to the cheques was false.
MR SKILLER: I appreciate that, your Honour, but it flows over into the question of whether or not the Court of Criminal Appeal was correct in its interpreting of section 319 because, of course, the way ‑ we say Einfeld really governs the situation – this is a bit of a rehash, we say, of Einfeld because in Einfeld Part 7 of the Crimes Act was considered at length and the second reading speeches were considered at length and ‑ ‑ ‑
BELL J: But all of this, Mr Skiller, if I recollect it, in the context of whether having regard to the statutory definition of “pervert the course of justice” which included the words “administration of the law” whether the concept of perverting the course of the justice under this statutory scheme differed from the statements respecting the common law offence insofar as administration of the law added something. In Einfeld you may recall there were no curial proceedings in contemplation.
MR SKILLER: That is precisely my point, your Honours, because if these questions and answers were given in the context where curial proceedings were the furthest thing from the interviewee’s mind, one has to then indulge in a type of an inferential process whereby one infers, as I remember, Justices Brennan and Toohey and, to some extent, Justice Mason in Rogerson engaged in this type of inference. Well, of course, that was after the trial. In this case, we have had some evidence given in the Bashir inquiry but there has been no trial.
BELL J: But the notice and the warning given to your client were in terms directed to the consideration being given by the officials of the OSR of prosecution for offences. That is, if you like, a point of distinction between the circumstances of this matter and the regulatory scheme whereby a person can tick the back of a form indicating they do not wish to avail themselves of the right to go to court in relation to a speeding fine or some other infringement notice.
MR SKILLER: Yes, your Honours, my learned friend’s case, as I see it, all depends upon how wide one wishes to spread the net for this particular offence. Now, I think Justice McHugh said somewhere, I think it was in Rogerson, but if one takes into account that if one is stopped, say, on a bus, and the inspector says “Have you got your ticket?” and the young man pulls out something and says “Yes, here is my ticket, Mr Inspector”, that is my ticket to get a stay on the bus. Well, if it is not and he is trying to deceive the inspector, who is to say that is not perverting the course of justice because he is obviously doing it to avoid being called up to pay a ticket or some offence. The case of OM, having read it, Mr Justice Whealy is really expanding the idea of – from the word, in my opinion, in my respectful submission, from the word “course”.
KIEFEL J: Your reference to OM brings into focus the basis which is put forward for the grant of special leave and that is there is an inconsistency between two decisions of the New South Wales Court of Appeal. That itself could be a ground for a grant.
MR SKILLER: Yes, that is true, your Honour.
KIEFEL J: Is there anything you could say against that?
MR SKILLER: I suppose really that I would submit that the view of the Court of Criminal Appeal in Beckett is to be preferred to the view of – and I do not say this facetiously, I just think it is better law.
KIEFEL J: No, but how is anyone to know that unless we say it?
MR SKILLER: I thought that the matter had been clarified by, perhaps, Rogerson and other matters that the Court had dealt with. I thought perhaps this was a matter in which it was unnecessary for the Court to declare any further, as it were. Of course, it is a matter for your Honours to grant special leave.
As I say, I see the two appeals in this matter slightly reticulated because really one when – if one draws the conclusion that Ms Beckett, even if she was warned and told you have not got to answer any questions, if she was under the impression that it had only dealt with taxation matters and that ‑ I mean, she paid the money the next week or something, and she was never ever consulted afterwards about what the course of justice – pardon me, what might result. The only reference I would like to take your Honours to – I will just read it, your Honours, it is from Kioa where Mr Justice Mason says:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it . . . The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.
KIEFEL J: I think you can take it we are familiar with the principles of natural justice.
MR SKILLER: Your Honours, in this situation, it is my respectful submission, that once there was – the Office of State Revenue had in their hands the information they did about the cheques, then another investigation, even by the Commissioner of Police because they can be told about things under section 82 – somebody should then have approached and got in Ms Beckett and said, right, well, explain. Why did you say this before? No opportunity was given for her to reply to what was quite a serious matter at that time. We say that was a denial of natural justice, your Honour. If, for no other reason, I would submit, that that would be a basis to grant special leave if your Honours are going to express a leave in my friend’s application for the matter of her application also to be granted special leave. Thank you, your Honours.
KIEFEL J: Yes, thank you. There will be a grant in the first matter S8, The Queen v Beckett, but in relation to the second, S11, Beckett v The Queen, the grant of special leave is refused. In our view, there are insufficient prospects of success to warrant a grant of special leave. In relation to your matter, Mr Babb, half a day or a day?
MR BABB: I think half a day.
KIEFEL J: Would you agree with that, Mr Skiller?
MR SKILLER: Yes.
KIEFEL J: Yes, thank you. Would the parties please ensure that they receive a copy of the timetable and directions necessary in this matter before they leave? Thank you.
AT 12.47 PM THE MATTER WAS CONCLUDED
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