R v Einfeld - [2008] NSWCCA 215

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Einfeld v R [2008] NSWCCA 215
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2008/00000240

HEARING DATE(S):
17/6/08

JUDGMENT DATE:
14 October 2008

PARTIES:
Marcus Richard Einfeld (Appellant)
Regina (Respondent)

JUDGMENT OF:
Bell JA Hulme J Latham J

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2008/240001

LOWER COURT JUDICIAL OFFICER:
James J

LOWER COURT DATE OF DECISION:
19/5/08

COUNSEL:
D Campbell SC / T Moisidis (Appellant)
W G Roser SC (Respondent)

SOLICITORS:
Verekers Lawyers (Appellant)
S Kavanagh (Respondent)

CATCHWORDS:
CRIMINAL LAW – appeal s 5F(3) – demurrer/application to quash counts in indictment – jurisdiction – applicant not arraigned on indictment.
CRIMES ACT – perverting the course of justice – definition s 312 meaning of “administration of the law” in offence in s 319 – statutory interpretation – assumption against extending the scope of a penal statute

LEGISLATION CITED:
Annual Holidays Act 1944
Bio Fuel (Ethanol Content) Act 2007
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes Amendment (Gang and Vehicle Related Offences) Act 2001
Crimes Amendment (Sexual Offences) Act 2003 (NSW)
Crimes Legislation Amendment (Procedure) Act 1997 (NSW)
Crimes (Public Justice) Amendment Act 1990
Criminal Appeal Act 1912 (NSW)
Criminal Appeal (Amendment) Act 1987
Criminal Code (Qld)
Criminal Code (WA)
Criminal Code Consolidation Act 1935 (SA)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Interpretation Act 1967 (NSW)
Interpretation Act 1987 (NSW)
Justices Act 1902
Mental Health (Criminal Procedure) Act 1990 (NSW)
Oaths Act 1900 (NSW)
Road Transport (General) Act 1999 (NSW)
Statutes Amendment and Repeal (Public Offences) Act 1992
Statutory Declaration Act 1959 (Cth)
Traffic Act 1909 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
Attorney General (NSW) v Stuart (1994) 75 A Crim R 8
Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297
Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502
Ex Parte Fitzgerald: Re Gordon (1945) 45 SR(NSW) 182
Harrison v Melham [2008] NSWCA 67
Krakouer v R [1998] HCA 43; 194 CLR 202
Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; (1981) 148 CLR 245
Maroney v R [2003] HCA 63; 216 CLR 31
R v Orcher [1999] NSWCCA 356; 48 NSWLR 273 at 277
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324
Plaintiff s157/2002 v The Commonwealth of Australia [2003] HCA 2; 211 CLR 476
Police v Zammitt [2007] SASC 37
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Boston [1923] HCA 59; (1923) 33 CLR 386
R v Carroll [1913] VLR 380
R v Charles, Court of Criminal Appeal (unreported) 23 March 1998
R v Edelsten (1989) 18 NSWLR 213
R v Giovannone [2002] NSWCCA 323
R v Karageorge (1998) 103 A Crim R 157
R v Manley [1933] 1 KB 529
R v Matovski (1989) 15 NSWLR 720
R v Nicholls [1911] HCA 22; (1911) 12 CLR 280
R v Rogerson [1992] HCA 25; (1991-1992) 174 CLR 268
R v Saunders (1994) 72 A Crim R 347
R v Subramaniam [2002] NSWCCA 372
R v Vreones [1891] 1 QB 360
R v Waterhouse (1992) 62 A Crim R 59
Saraswati v R (1990-1991) 172 CLR 1
State of Tasmania v Crane [2006] TASSC 82

TEXTS CITED:
Archbold’s Criminal Pleading Evidence and Practice (43rd ed)
P Gillies, Criminal Law (3rd ed, 1993)

DECISION:
1. Grant leave under s 5F(3) of the Criminal Appeal Act 1912;
2. Allow the appeal and set aside James J’s order dismissing the relief claimed in prayer 2 of the Notice of Motion filed on 15 April 2008;
3. Quash counts 1 to 5 in the indictment dated 21 January 2008

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/00002400
BELL JA
HULME J
LATHAM J
Tuesday 14 October 2008

Marcus Richard Einfeld v R

Judgment

THE COURT:
Introduction

This is an application under s 5F(3) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against the order of Mr Justice James dismissing an application to quash the first five counts in the indictment, which contains 9 counts. In his Notice of Motion the applicant also claimed an order adjourning his trial for a period of 12 months because of the intensity of the publicity that had surrounded the proceedings. His Honour dismissed the motion. He ordered that there be no publication of the application or of the proceedings on it.

The order prohibiting publication

On the hearing of the application, the Crown Prosecutor and Mr D Campbell SC, who with Ms Moisidis appeared on the applicant’s behalf, both submitted that this Court should make an order prohibiting the publication of the present application and the proceedings on it pending the conclusion of the trial. The Court made the order that the parties’ sought.
In John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 Spigelman CJ discussed the tension between the principles of open justice and those that are concerned with securing a fair trial. The order that was the subject of appeal in that case was made by the District Court, which is not a court of general jurisdiction. However, much of the discussion was of general application. His Honour emphasised the fundamental nature of the principle of open justice to our system of justice and characterised as exceptional the occasions on which a court may order that an aspect or aspects of proceedings not be the subject of publication (at 352 [18] and 353 [21]). His Honour discussed the concern that is often expressed about the capacity of publicity to interfere with a fair trial. He said this (at 366, [103]):
“There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them.”
The question of the necessity for a non-publication order should be reviewed in light of these principles. We will return to this.
Jurisdiction
The applicant was committed for trial on nine counts, six of which were for offences under s 319 of the Crimes Act of doing an act with intent to pervert the course of justice. The first five of these counts are relevant to the present application. The committal was to the District Court at Sydney.
The Chief Justice granted an exemption under s 128(2) of the Criminal Procedure Act 1986 (NSW) (the CPA) to permit the presentation of the indictment in the Supreme Court.
Section 129 of the CPA makes provision with respect to the presentation of an indictment in the relevant court, being the Supreme Court or the District Court as the case may be, following an accused person’s committal for trial. By letter dated 9 January 2008, the Acting Manager of the Criminal Registry of the Supreme Court notified the Registrar of the District Court of New South Wales of the Chief Justice’s grant of the exemption. In a letter dated 17 January 2008, the applicant was advised that the matter was listed before the Supreme Court on 7 March 2008.

The Appeal Book contains a copy of an unsigned, undated indictment. (AB 60-62) The Court file does not record that the applicant has been arraigned on indictment. In these circumstances, the Court sought submissions from the parties concerning its jurisdiction to entertain an appeal under s 5F.
It appears that on 7 March 2008 the applicant appeared before Barr J, on which occasion the Crown Prosecutor presented an indictment dated 21 January 2008, signed by Mr Roser SC, Crown Prosecutor, charging the applicant in the terms that are set out in the copy indictment (AB 60-62). The applicant was not arraigned on the indictment. Mr Campbell SC, who appeared on the applicant’s behalf, informed the Court that it was proposed to “challenge a number of the counts in the indictment” (T’cpt 7/3/08 1.33-34). Justice Barr stood the proceedings over for directions before James J who was designated as the trial judge.
The proceedings came before James J on 20 March 2008 and his Honour gave directions with respect to the foreshadowed applications. The proceedings were before his Honour again on 31 March 2008. On this occasion, 28 July 2008 was fixed as the date for trial. The applicant’s attendance at court was excused on each of these occasions.
The applicant’s Notice of Motion was filed on 15 April 2008. It came on for hearing before James J on 8 May 2008. The orders claimed in the motion included:
“2. As to Counts 1 – 5 inclusive of the indictment:
(a) the applicant demurs to the indictment, or alternatively
(b) the counts be quashed, or alternatively
(c) the counts be stayed as an abuse of process,
on the grounds that they charge offences not known to the law, or alternatively on the ground that, taken at its highest, the evidence to be adduced by the Crown cannot make a prima facie case against the applicant.”
The Crimes Legislation Amendment (Procedure) Act 1997 (NSW) inserted s 130 into the CPA. That section relevantly provides:
“130(1) In this section, court means the Supreme Court or District Court.
(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.”
Section 5F(1)(a) of the Criminal Appeal Act 1912 (NSW) applies to proceedings for the prosecution of offenders on indictment in the Supreme Court or in the District Court. Subsection (3) confers a right on an accused person in proceedings to which s 5F applies to appeal to this Court against an interlocutory judgment or order given or made in the proceedings, if the Court grants leave (or if the judge of the court of trial certifies that the judgment or order is a proper one for determination on appeal). Section 5F was introduced into the Criminal Appeal Act by the Criminal Appeal (Amendment) Act 1987, which commenced on 18 December 1987.
The Crown submitted that the Court had jurisdiction under s 5F to entertain the application for leave to appeal, since a signed indictment had been presented. Its submissions included the contention that the arraignment of an accused did not require that the accused make any indication to the court. In this respect, reference was made to the provisions of s 155 of the CPA, which deals with an accused who stands mute or will not answer directly to the indictment. This submission conflates the presentation of an indictment and arraignment. The applicant has not been arraigned on the indictment. No question of his standing mute arises.
Section 17(1) of the CPA (formerly s 362 of the Crimes Act 1900) provides that an objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash, before the jury is sworn. A demurrer admits, for the purpose of its determination, that all the statements in the count are true; and it maintains that, even admitting their truth, they are not sufficient in law to make the accused guilty of a crime and, therefore, he or she is not bound to answer them: R v Boston [1923] HCA 59; (1923) 33 CLR 386 per Isaacs and Rich JJ at 396. In Boston, counsel orally demurred on his clients’ behalf before they were required to plead to the information. In our opinion, the motion filed on the applicant’s behalf served as an effective demurrer and James J had jurisdiction to determine it.
The purpose of s 130 of the CPA is to confer power on the Court to make orders for the purposes of the trial before the jury is empanelled. To this end, it provides that the court has jurisdiction to make orders as soon as the indictment is presented and the accused person is arraigned.
Section 5F was introduced in order to confer jurisdiction on this Court to deal with appeals against the refusal to stay proceedings on indictment, which were being brought in the Court of Appeal: R v Edelsten (1989) 18 NSWLR 213. The reference in s 5F(1)(a) to the application of the section to “proceedings … for the prosecution of offenders on indictment in the Supreme Court or in the District Court” is not limited to interlocutory judgments or orders made for the purposes of the trial within s 130 of the CPA. In our opinion, it includes an order such as the present, dismissing a demurrer or motion to quash an indictment.
The indictment

The five counts that are the subject of challenge charge the applicant that on dates between 20 October 1999 and 10 April 2004 he made a false statutory declaration with intent thereby to pervert the course of justice. The offence is provided by s 319 of the Crimes Act.

Section 319 provides:
“A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.”
Section 312 provides:
“A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.” (Emphasis added)
Neither the demurrer, nor the contention that each of counts 1 to 5 charged an offence not known to the law, was pressed on the hearing before James J. Mr Campbell’s submission was that the evidence that the Crown proposes to adduce is not capable of establishing a prima facie case against the applicant.

The issue raised by the application is whether the offence of perverting the course of justice under s 319, by reason of the inclusion of the expression “the administration of the law” in s 312, extends to conduct that is intended in any way to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any of the laws of this State.
In concluding this issue against the applicant, James J considered he should treat the obiter observations of this Court in R v Subramaniam [2002] NSWCCA 372 as being highly persuasive.

Leave to appeal

The Crown Prosecutor opposed the grant of leave. He relied on decisions in which this Court has emphasised that it is undesirable to interrupt criminal proceedings by the bringing of applications under s 5F: R v Matovski (1989) 15 NSWLR 720; R v Waterhouse (1992) 62 A Crim R 59; Saunders v R (1994) 72 A Crim R 347; Attorney General (NSW) v Stuart (1994) 75 A Crim R 8 at 10. The principles are conveniently set out in R v Dinh [2000] NSWCCA 536 per Simpson and Howie JJ (Fitzgerald JA agreeing) at [34].

In Waterhouse it was accepted that an order refusing to quash an indictment was an interlocutory order within the meaning of s 5F(1).

The issue raised by the application concerns the scope of the offence under s 319, and has not been previously determined. The obiter observations made in Subramaniam are attended by sufficient doubt to make it appropriate, in the interests of justice, to grant leave.

The proceedings before James J

James J summarised the evidence on which the Crown proposes to rely as follows:
“Count 1
On 4 September 1999 a camera-detected traffic offence was committed by the driver of a vehicle allocated to Mr Einfeld for his personal use by the Federal Court of Australia of which he was then a judge. A penalty notice for the offence was issued by the Infringement Processing Bureau.
On 20 October 1999 Mr Einfeld made a statutory declaration, which he sent to the Bureau, in which he asserted that at the time of the offence the vehicle was being driven by Professor N.D. Levick of Florida Atlantic University, Florida United States of America. The Crown alleges that this assertion was false; that the Professor Levick referred to in the declaration was not in Australia at the time of the offence.
Counts 2 and 3
On 4 February 2003 a camera-detected traffic offence was committed by the driver of a vehicle owned by Mr Einfeld. A penalty notice for the offence was issued by the Infringement Processing Bureau.
On 4 May 2003 Mr Einfeld made a statutory declaration, which he sent to the Bureau, in which he asserted that at the time of the offence the vehicle was being driven by ‘Theresa Brennan Florida Atlantic University Florida USA’ (count 2).
On 21 May 2003 Mr Einfeld made a further statutory declaration, which he sent to the Bureau, in which he asserted that at the time of the offence the vehicle was being driven by ‘Theresa (Prof) Brennan Florida Atlantic University Florida USA’ (count 3).
The Crown alleges that the assertion in each statutory declaration was false. The person referred to in each declaration, Professor Theresa Brennan of Florida Atlantic University in the United States, had died in the United States on 3 February 2003.
Counts 4 and 5
On 29 November 2003 a camera-detected traffic offence was committed by the driver of a vehicle owned by Mr Einfeld. A penalty notice for the offence was issued by the Infringement Processing Bureau.
On 10 February 2004 Mr Einfeld made a statutory declaration, which he sent to the Bureau, in which he asserted that at the time of the offence the vehicle was being driven by ‘Dr Tim Oliver Derbyshire England’ (count 4).
On 10 April 2004 Mr Einfeld made a further statutory declaration, which he sent to the Bureau, in which he asserted that at the time of the offence the vehicle was being driven by ‘Tim Oliver Hampton Court Derbyshire England’ (count 5).
The Crown alleges that the assertion in each statutory declaration was false. The person referred to in each declaration, Timothy Patrick Oliver, was not in Australia at the time of the offence. (Judgment, [7]-[14]).”
The offence charged in count 1 relates to the submission of a declaration under the Traffic Act 1909 (NSW). The Road Transport (General) Act 1999 (NSW) repealed the Traffic Act. The offences charged in counts 2, 3, 4 and 5 relate to the submission of declarations under the equivalent provision of the Road Transport (General) Act.
Under each Act, provision is made for the issue of penalty notices that provide an administrative procedure for the imposition and recovery of penalties as an alternative to court proceedings in relation to certain offences, which include camera-detected traffic control light offences and camera-recorded speeding offences: s 18A and 18B of the Traffic Act and s 43 of the Road Transport (General) Act.
The scheme under each Act is relevantly similar. The person responsible for a vehicle that is detected committing an offence may be served with a penalty notice by a police officer or other prescribed officer. The notice contains a statement of the amount of the penalty (being an amount less than the maximum amount which a court may impose in respect of the offence), to whom the sum is payable and of the recipient’s right to elect to have the matter determined by a court. If the person does not elect to have the matter determined by a court, there is no provision for the police officer or prescribed officer to elect to have the matter dealt with by the court.
A recipient of a penalty notice who does not elect to have the matter dealt with by the court is deemed to be guilty of the offence. Payment of the amount stated in the notice brings the matter to a conclusion (subject to recording the fact of the offence, and any demerit points, on the offender’s driving record).
Penalty notices are enforced under the Fines Act 1996 (NSW). The State Debt Recovery Office, a statutory body representing the Crown, is established under the Fines Act and is empowered to enter into arrangements with persons who issue penalty notices, or on whose behalf penalty notices are issued, for or with respect to the receipt, recovery and collection of amounts payable under those notices.

In a case in which the person responsible for the vehicle was not in charge of it at the time of the offence, he or she is required to complete a statutory declaration (a pro forma declaration is printed on the reverse side of the penalty notice) stating the name and address of the person who was in charge of the vehicle at the time of the offence. It is an offence not to provide the information within the time specified in the notice.
Section 18A(3C) of the Traffic Act and s 43(6) of the Road Transport (General) Act each make it an offence to submit a statutory declaration falsely nominating another person as the person who was in charge of the vehicle at the time the offence occurred. The offence under s 18A(3C), if relating to a vehicle registered in the name of a natural person, is subject to a maximum penalty of five penalty units (s18A(3D(b)). If the offence relates to a vehicle registered otherwise than in the name of a natural person, the maximum penalty for the offence is 10 penalty units (s 18A(3D(a)). Under s 43(6) of the Road Transport (General) Act, a similar penalty regime applies. This section provides for a penalty of 10 penalty units in the case of an offence relating to a vehicle registered in a name other than that of a natural person and a maximum of five penalty units in the case of an offence relating to a vehicle registered in the name of a natural person.

The declarations that the applicant signed were completed on the form that was printed on the reverse side of the penalty notice. Each contained the assertion:
“I make this declaration in the belief that it is true and correct and that making a false declaration is an offence and carries a penalty of up to $1000.00.”
Each declaration stated:

“This declaration must be witnessed by a Police Officer, Justice of the Peace, Barrister or Solicitor, Pharmacist, School Principal, Doctor, Bank Manager or any other person authorised to witness Statutory Declaration under the Statutory Declaration Act 1959.”

Part 4 of the Oaths Act 1900 (NSW) makes provision for statutory declarations. Section 24 provides that in all cases to which Pt 4 applies the declaration (unless otherwise directed by the powers there given) shall be in the form, or to the effect of the form, in either the Eighth or the Ninth Schedule. Under s 25 it is a serious indictable offence to wilfully and corruptly make a declaration knowing it to be untrue in any material particular in any case where a declaration is authorised to be made pursuant to Pt 4. The maximum penalty for the offence is imprisonment for five years. The declaration printed on each of the penalty notices signed by the applicant is not in the form or to the effect of the form in either the Eighth or Ninth Schedule to the Oaths Act.
Under the Statutory Declaration Act 1959 (Cth), provision is made for statutory declarations to be used for the purposes of any law of the Commonwealth or of a Territory. A statutory declaration under the Commonwealth Act is to be made in the form of the Schedule to the Act. The form of the declaration printed on the reverse of the penalty notice is not in the form of the Schedule. It is unclear why reference is made in the declaration to the Commonwealth legislation.
Section 21 of the Interpretation Act 1967 (NSW) provides that a statutory declaration means a declaration made by virtue of any Act authorising a declaration to be made instead of an oath. The applicant did not submit that the form signed by him was not a statutory declaration within the meaning of s 18A(3C) of the Traffic Act or s 43(6) of the Road Transport (General) Act.
The Applicant’s first contention: inconsistency
The first way in which Mr Campbell challenged counts 1 to 5 was by contending that it was not open to prefer charges against the applicant under s 319 of the Crimes Act because, “the Traffic Acts have primacy over other laws in relation to offences that are expressly provided for within each of the Traffic Acts”. (AB 70) It was said that the applicant could have been charged in relation to the declaration that is the subject of count 1 with an offence under s 18A(3C) of the Traffic Act. This was a summary offence in respect of which any prosecution was to be brought within six months of the date of commission: s 179 of the Criminal Procedure Act 1986 (formerly s 56 of the Justices Act 1902). It was said that the applicant could have been prosecuted for making the declarations that are the subject of counts 2, 3, 4, and 5 for offences under s 43(6) of the Road Transport (General) Act. This is a summary offence in respect of which any prosecution is to be brought within 12 months.

It was submitted that the Traffic Act and the Road Transport (General) Act do not permit proceedings for the imposition of penalties greater than those provided for under each Act. In relation to the Road Transport (General) Act, it was submitted that there exists clear inconsistency between the provisions of s 43(6) and prosecution for an offence under s 319 of the Crimes Act based on the same facts. Mr Campbell relied on s 6(2) of the Road Transport (General) Act:
6 General relationship with other laws
(1) Other Acts and law not affected except as provided by this section.
Nothing in the road transport legislation:
(a) affects any of the provisions of any other Act or any statutory rule, or takes away any powers vested in any person or body by any other Act or statutory rule, except as provided by this section, or
(b) affects any liability of any person at common law except to the extent that the road transport legislation provides otherwise expressly or by necessary intendment.
(2) This Act generally prevails over other legislation in cases of inconsistency
However (subject to subsection (3)):
(a) an Act that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency, and
(b) a statutory rule that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency in respect of driver licensing, vehicle registration or traffic on roads or road related areas (or other related matters).
(3) Regulations may displace operation of subsection (2)
Despite subsection (2), the regulations may provide that any other Act or a statutory rule (or any provision of another Act or statutory rule) prevails over an inconsistent provision of the road transport legislation.
James J rejected the applicant’s submissions as to inconsistency by reference to the provisions of s 43(10) of the Road Transport (General) Act and s 17 and s 18B(8) of the Traffic Act. These provisions are set out below:

Section 43(10) of the Road Transport (General) Act provides:
“(10) Section does not derogate from any other law
The provisions of this section are in addition to and not in derogation of any other provisions of this or any other Act.”
Section 17 of the Traffic Act relevantly provided:
“17 Common Law or statute liability
(1) Nothing in this Act shall affect any liability of any person by virtue of any statute or at common law”.
Section 18A(6) provided:

“The provisions of this section shall be in addition to and not in derogation of any other provisions of this or any other Act”.

Subsection 18B(8) provided:
“The provisions of this section are supplemental to and not in derogation of the provisions of any other section of this Act or any other Act in relation to proceedings which may be taken in respect of prescribed offences”.

In our opinion, his Honour was correct to hold that s 17 and s 18B(8) of the Traffic Act and s 43(10) of the Road Transport (General) Act operate such that the Crown is not precluded from prosecuting the applicant for an offence under s 319 of the Crimes Act by reason of asserted inconsistency with either of the traffic Acts.
Mr Campbell’s submission was put more generally on the basis that, “[a]s a general proposition the Crown should not resort to prosecuting for the serious general offence of attempting to pervert the course of justice where the legislature has provided special minor offences for the same conduct”. (AB 69) We consider that his Honour was also correct to reject this submission. Conduct may give rise to offences under provisions of the one Act or different Acts and the choice of whether to charge an offence of greater or lesser severity involves an exercise of prosecutorial discretion. It is not an abuse of the process of the court to prosecute for the more serious offence (unless the decision was made mala fides, which is not suggested here).
In Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Gleeson CJ said this (at 507):
“Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attribute that may be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts.”
In Maroney v R [2003] HCA 63; 216 CLR 31 Gleeson CJ said at 36, [12]:
“[12] Further, the validity of the Crown's construction is not negated by the fact that the appellant may have received a lesser sentence if the charge had been one of possession rather than supply. (The contention that the appellant would have been given a lesser sentence depends on several highly questionable assumptions about whether or not he would have been tried summarily and what the approach of the sentencing judge would have been if he had, but it is not necessary to debate their validity.) It is common for criminal offences to overlap and for very different sentencing outcomes to be possible within the area of overlap depending on how the Crown chooses to proceed. These differences are not, at least in the present statutory context, determinative of any particular construction. So far as the appellant suggested that the Crown approach had operated harshly against him, or that the Crown construction operated so severely as to indicate that it was flawed in some way, the suggestion must be rejected. It was probable that Parliament perceived the introduction of drugs into prisons as something that called for wide-ranging prohibitions and serious punishments. That perception supports the Crown construction rather than negating it.”
In the course of the hearing, Mr Campbell acknowledged that had the declarations subscribed by the applicant been in accordance with Pt 4 of the Oaths Act, he might have been liable to prosecution for the offence under s 25 of that Act, notwithstanding the provision of the lesser offence in the Traffic Act and the Motor Transport (General) Act. (T’cpt 18.3-6) This concession was rightly made and must apply to prosecution for an offence under the Crimes Act.
The scope of the offence created by s 319 of the Crimes Act
Before James J, and on the application, Mr Campbell’s principal contention was that the words “the administration of the law” in s 312 are to be understood in their context, which is that Pt 7 of the Crimes Act is concerned with “public justice” offences. An essential aspect of such offences was said to be their potential to affect the course of curial proceedings. In this respect, it was submitted that they are to be distinguished from offences arising out of conduct directed to the avoidance of a penalty or other liability which are not recovered by proceedings in a court or tribunal. Mr Campbell attached copies of a large number of Acts and regulations which contain provisions making it a summary offence punishable by fine to supply false information to a public official or statutory corporation: s 11 of the Annual Holidays Act 1944; s 10 of the Bio Fuel (Ethanol Content) Act 2007; s 35 of the Boxing and Wrestling Control Act et cetera. In his submission, to give the words “the administration of the law” in s 312 their literal grammatical meaning would produce an absurd result, criminalising as a perversion of the course of justice conduct that hitherto has constituted, at most, a minor summary offence.

The Crown Prosecutor submitted that the Parliament was to be understood as intending that the general offence of perverting the course of justice under s 319 have a wider area of operation than the common law offences of perverting or attempting or conspiring to pervert the course of justice that it replaced. In his submission, the words of s 312 are unambiguous and operate such that an act done with the intention (or an omission made with the intention) of obstructing, preventing or defeating the administrative acts of government in the enforcement of the laws of the State is a perversion of the course of justice.
The traffic legislation creates a number of criminal offences, which range in seriousness. There exists a wholly administrative mechanism for imposing and recovering penalties for designated offences. In the Crown’s submission, to characterise the intentional subversion of the scheme by the submission of a false declaration in order to avoid liability as perverting the course of justice is neither an irrational nor absurd result.
James J’s reasons

His Honour approached the matter on the basis that the words “the course of justice” in the first part of the definition are to be given their meaning at common law as explained in R v Rogerson [1992] HCA 25; (1991-1992) 174 CLR 268.
In Rogerson, Brennan and Toohey JJ (who formed part of the majority) explained the concept in this way (at 280):
“The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. 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.”
Mason CJ said (at 276):
“The course of justice relevantly includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially.
It has been suggested that ‘the course of justice’ and ‘the administration of justice’ include police investigations as such. True it is that some judicial comments are capable of being understood as lending support to that bald proposition. These comments have been made for the most part in cases in which a person has been convicted of an attempt to pervert the course of justice by misleading police in their investigation of a crime or suspected crime.
But police investigations do not themselves form part of 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.”
James J held that, taken at its highest, the evidence that is proposed to be adduced by the Crown would be incapable of satisfying a jury beyond reasonable doubt on any of counts 1 to 5 that the applicant intended, by making the statutory declaration, to pervert the course of justice in the sense explained in Rogerson (judgment [127]).
His Honour continued:
“[128] … A course of justice consists in the due exercise by a Court of its jurisdiction. An offence of perverting the course of justice can be committed, even though no court proceedings have been commenced. However, if no court proceedings have been commenced, it is necessary that the offender should have contemplated court proceedings. It can be sufficient that the offender contemplated merely the possibility that court proceedings might be instituted and it is not necessary that anyone other than the offender should have contemplated the possibility of court proceedings.
If the offender contemplates the possibility of court proceedings being instituted, then the course of justice can be perverted in any of the various ways set out in the joint judgment, by the offender doing an act with the intention of perverting the course of justice.
[129] In the present case it was submitted by the Crown that the mere issue of a penalty notice commenced a course of justice. I am unable to accept this submission. The issue of a penalty notice by the Infringement Processing Bureau is not equivalent to the commencement of proceedings in a court or a judicial authority or the invoking of the jurisdiction of a court or a judicial authority.
[130] If, in the case of any penalty notice, Mr Einfeld, after being issued with the penalty notice, had taken the option of electing to have the matter dealt with by a court, then the evidence would have been capable of establishing that Mr Einfeld contemplated the possibility of court proceedings and of establishing that his act was done with the intention of perverting the course of justice in those court proceedings. However, Mr Einfeld did not, in the case of any penalty notice relevant to any of counts 1 to 5, take the option of electing to have the matter dealt with by a court.
[131] In each case, the option taken by Mr Einfeld was to make a statutory declaration nominating another person as having been the person in charge of the vehicle at the time of the offence. In my opinion, Mr Einfeld having taken this option, the evidence in the Crown brief would be incapable of satisfying a jury beyond reasonable doubt that at the time of making the statutory declaration Mr Einfeld contemplated the possibility of court proceedings and intended by making the statutory declaration to pervert the course of justice in such court proceedings.
[132] It is true that each penalty notice warned Mr Einfeld that, if the notice was not finalised by the due date, that is if Mr Einfeld did not comply with the notice by the due date by taking one of the options offered, ‘further action’ or ‘further enforcement action’ would be taken. However, none of the notices by its terms threatened Mr Einfeld with prosecution, if he did not finalise the notice by the due date. This is to be contrasted with the statement in each notice that, if a person other than Mr Einfeld had been driving the vehicle at the time of the offence, a failure by Mr Einfeld to make a statutory declaration nominating that other person as having been the driver would be an offence for which Mr Einfeld might be prosecuted.
[133] The procedures for enforcing a penalty notice which has not been complied with, such as a penalty notice under the Traffic Act or the Road Transport (General) Act, are set out in Pt 3 of the Fines Act 1996. These procedures are almost entirely administrative and include the issue of a penalty reminder notice (Div 3) and the making of a penalty notice enforcement order by the State Debt Recovery Office, which may be made in the absence of and without notice to the person concerned, that is without any court proceedings (Div 4).
[134] At some points in the generally administrative system of the Fines Act an application to a court is possible, for example if a person wishes to appeal against a refusal by the State Debt Recovery Office to annul a penalty notice enforcement order. However, there is no evidence in the Crown brief capable of satisfying a jury beyond reasonable doubt that Mr Einfeld intended at the time of making a statutory declaration to pervert the course of justice in such distant and hypothetical court proceedings.
[135] The Crown pointed to s 18A(4) of the Traffic Act and s 43(8) of the Road Transport (General) Act, by virtue of which a statutory declaration made by Mr Einfeld would be evidence in proceedings brought against the person named in the declaration that that person was the driver of the vehicle at the time of the offence.
[136] However, all of the persons named by Mr Einfeld were stated by Mr Einfeld in his statutory declarations to be living overseas, with no precise address being given, and one of them (Professor Brennan) was, on the Crown case, known by Mr Einfeld to be dead. In my opinion, the only reasonable inference a jury could draw would be that Mr Einfeld in making each statutory declaration nominated a person who he said was living overseas (one of whom was in fact dead), in the belief that no action would ever be taken by the New South Wales authorities to pursue the person he named. Even if any action was taken, it would merely take the form, as the penalty notice indicated, of a fresh penalty notice being issued to the person named by Mr Einfeld. In my opinion, the evidence in the Crown case would be incapable of satisfying a jury beyond reasonable doubt that Mr Einfeld intended by making the statutory declaration to pervert the course of justice in court proceedings which he contemplated would be brought against the person named by him in the statutory declaration.”

On the hearing of the application, the Crown Prosecutor did not submit that his Honour’s finding that the applicant’s conduct was not in law capable of amounting to a perversion of the course of justice in the way that expression was explained in Rogerson, was wrong.
Sections 319 and 312 were enacted by the Crimes (Public Justice) Amendment Act 1990, which inserted Part 7 into the Crimes Act (the Public Justice Amendment). James J accepted the Crown’s submission that the Attorney-General’s speech when the Bill for the Public Justice Amendment was read a second time in the Legislative Assembly made clear that the offence in s 319 was not intended simply to reproduce the common law (at [140]). His Honour continued:
“[141] I consider that the words “the administration of the law” having been included in the definition in s 312, they have to be given some effect beyond the effect to be given to words “the course of justice”.
[142] On a literal interpretation, the expression “the administration of the law” is apt to include the exercise by a government body of its functions in applying and enforcing the law of this State. See the definition of “administration” in the Macquarie dictionary (2nd ed).
[143] No suggestion was made in the argument on the application about how the literal meaning of the expression could be confined, apart from a suggestion that an act perverting the administration of the law should be confined to an act having the potential to affect the course of justice in court proceedings. However, if this suggestion was adopted, the expression “the administration of the law” would add little, if anything, to the expression “the course of justice” as explained in Rogerson”.
It is convenient at this juncture to refer to the decision of this Court in Subramaniam. The appellant in that case was employed by Ms Johnson, who was the owner of a vehicle that was detected committing a camera-recorded traffic control light offence. On receipt of the penalty notice, Ms Johnson elected to have the offence dealt with by a court. After Ms Johnson made that election, the appellant signed a statutory declaration stating that she had been the driver of the vehicle at the time of the offence. It was the Crown case that the appellant’s assertion in the declaration that she was the driver of the vehicle at the time of the offence was false. The appellant was charged with two offences under s 319. The offence charged in count 1 was based on the making of the false declaration. The offence charged in count 2 related to evidence given by the appellant in the District Court. The trial proceeded as a special hearing under s 19 of the Mental Health (Criminal Procedure) Act 1990 (NSW). The jury returned verdicts that, on the limited evidence available, the appellant had committed the offence charged in count 1 and that she was not guilty of the offence charged in count 2.
On appeal, a number of grounds were relied on including that the verdicts were inconsistent. One ground contended that the verdict on count 1 was unsafe in that the facts relied on by the Crown were not capable of proving the elements of the s 319 offence: the appellant’s conduct in swearing the statutory declaration had been directed to the Infringement Processing Bureau and not to the Court. Beazley JA (with whose judgment on this point Sully and Simpson JJ agreed) discussed the elements of the offence in light of the definition in s 312. The decision was overturned in the High Court, but on a point that does not concern the reasoning in this respect. Her Honour said this:
[58] In my opinion, the appellant's submission founders at a factual level. Whilst Ms Johnson did send a copy of the statutory declaration to the infringement processing bureau, curial proceedings by that stage had already been instituted pursuant to Ms Johnson's election made on 8 September. The statutory declaration was provided to the court on 24 April 1996, when Mr Sukkar attended before the Registrar and made an application to have the matter re-listed on a date other than that which had been nominated by the court. It would seem that the forwarding of the statutory declaration to the bureau might best be viewed as a 'back up' measure.
[59] In any event, s 312 of the Crimes Act provides that a reference to "perverting the course of justice" includes a reference to "obstructing, preventing, perverting or defeating ... the administration of the law". In my opinion, it is not necessary for the indictment to include the definitional provision in s312. It is sufficient for a person to be charged in terms of s319. Accordingly, even if the statutory declaration was made for the purpose of sending to the Infringement Processing Bureau, the evidence supported the commission of the offence.
[60] Counsel for the appellant in this part of his submissions then drew attention to the fact that the trial judge did not give a direction so as to cover the extended definition. It would of course only have been necessary to have done so if the case was conducted on the basis that the notice was one directed to the Bureau and not to the court. As I have indicated, the evidence is against that. There is a further problem with the appellant's submission in this regard, namely, that no direction was sought by counsel at the trial that there be a direction of the type now suggested. Given the factual circumstances, where the statutory declaration was made after the court proceedings were commenced and where the declaration was given to the court, I would not grant leave to the appellant to now raise this matter.”
James J considered that her Honour’s judgment supported the view that the sending of a false statutory declaration to the Infringement Processing Bureau about the identity of the driver of a vehicle at the time of an offence is capable of amounting to an offence under s 319 of perverting the course of justice by perverting “the application (sic: the administration) of the law” (at [155]). As noted, his Honour considered that he should treat Subramaniam as being highly persuasive. He concluded that “the making and sending of each statutory declaration to the Infringement Processing Bureau would be capable of amounting to perverting the course of justice in the sense of perverting the administration of the law” (at [157]).

The scope of the offence created by s 319

Mr Campbell submitted that his Honour erred in holding that there were two limbs to the offence under s 319. He submitted that the Attorney-General’s second reading speech did not support the assertion that the Parliament had intended, in enacting the Public Justice Amendment, to introduce an offence of perverting the administration of the law.
The Crown Prosecutor submitted that it was apparent by reference to the Attorney-General’s second reading speech that the offence provided for by s 319 was not intended to simply reproduce the common law. If this had been the Parliament’s intention it was said that, “it would not have been necessary for section 312 … to have been enacted at all but to rely upon the settled common law definition of what was ‘perverting the course of justice’”. (WS [138])

The Crown Prosecutor also referred to the Explanatory Note to the Bill for the Public Justice Amendment. Both are set out below. Relevantly, the Attorney-General said (Legislative Assembly, 17 May 1990, Hansard at 3692):
“At present there is no comprehensive statement of the law relating to public justice offences. The law is fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties. Common law offences have no specific penalty provided and the exact limits of these offences are sometimes difficult to establish. The bill will rectify this by creating specific offences dealing with a number of areas … A general offence of perverting the course of justice is also included … It has been necessary to include this offence as, no doubt, offenders will find particularly devious ways of perverting the course of justice that are not covered by any of the specific offences in the bill. It is intended that this offence will cover such situations.”
The Explanatory Note to the Bill for the Public Justice Amendment stated:
‘The object of this Bill is to amend the Crimes Act 1900 to replace Parts 7 (Perjury and like offences) and 8 (Conspiracy to accuse of crime) of that Act with a new Part (Public justice offences) that deals with offences in the following areas:

interference with the administration of justice

interference with judicial officers, witnesses, jurors etc.

perjury, false statements etc.
The proposed new Part will also abolish common law offences made redundant by the new statutory offences or which are now obsolete.
The Bill also makes consequential amendments to other Acts.”
…

Proposed section 312 defines what is meant by ‘perverting the course of justice’.

…

Proposed section 319 creates the general offence of perverting the course of justice (maximum penalty 14 years’ penal servitude). This offence will apply to conduct not dealt with specifically by another provision of the proposed Chapter.”

The issue is one of statutory construction. The general approach is explained in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at 381 [69]. The primary object is to construe the provision so that it is consistent with the language and purpose of all the provisions of the statute. In ascertaining the purpose of the Public Justice Amendment the Court may have regard to the Minister’s speech and the Explanatory Note: s 34 of the Interpretation Act 1987 (NSW). However, as Spigelman CJ explained in Harrison v Melham [2008] NSWCA 67 [12]-[16] (see also Mason P at [159]-[173]), the task is directed to the objective intention of Parliament and not the subjective intention of the Minister.
Part 7 codified a part of the common law dealing with offences relating to the integrity of curial proceedings and criminal justice. It effected the abolition of a collection of poorly defined common law offences, which included perverting the course of justice and attempting or conspiring to pervert the course of justice. Among the common law offences that were abolished was the offence of “persuading a person to make a false statement to police to mislead them in their investigation”. The existence and scope of such an offence remained a matter of controversy at the date of its abolition, as the history set out in McHugh J’s judgment in Rogerson (at 299 – 303) makes clear. Another common law offence that was abolished was described as the offence of “dissuading, intimidating or preventing, or attempting to dissuade, intimidate or prevent, a person who is bound to give evidence in a criminal matter from doing so”. The offence is described, for the purposes of its abolition, as having as an element that the person who is dissuaded was “bound” to give evidence. This was the issue in R v Carroll [1913] VLR 380, in which the appellant’s conviction for the offence was affirmed, notwithstanding that the person whom he dissuaded was not bound over to give evidence. Cussen J held that all attempts to interfere with the course of justice are criminal contempts and that if there was an attempt to influence the due course of justice it was punishable by the criminal law (at 383). The point to be made is that, at the date of the Public Justice Amendment, the law in this area was confused and that one purpose in codifying it was to make it certain.

Part 7 introduced offences, many dealing with conduct that at common law constituted perverting or attempting to pervert the course of justice: tampering with evidence (s 317, maximum penalty: imprisonment for 10 years); corruption of witnesses and jurors (s 321, maximum penalty: imprisonment for 10 years); threatening or intimidating judges, witnesses, jurors and others (s 322, maximum penalty: imprisonment for 10 years); influencing witnesses and jurors (s 323, maximum penalty: imprisonment for 7 years); preventing, obstructing or dissuading a witness or juror from attending (s 325, maximum penalty: imprisonment for 5 years); reprisals against judges, witnesses, jurors and others (s 326, maximum penalty: imprisonment for 10 years). The maximum penalties for the offences in ss 321, 322 and 323 are imprisonment for 14 years in a case in which the offence was committed with the intention of procuring the conviction or acquittal of a person of any serious indictable offence (s 324).
Part 7 introduced offences that are concerned with criminal investigation. It is an offence to make an accusation intending a person to be the subject of investigation of an offence, knowing that person to be innocent of the offence (s 314, maximum penalty: imprisonment for 7 years). It is an offence to do anything intending to hinder the investigation of a serious indictable offence committed by another person, or the discovery of evidence concerning a serious indictable offence committed by another person or the apprehension of another person who has committed a serious indictable offence (s 315, maximum penalty: imprisonment for 7 years). It is offence to fail without reasonable excuse to bring information material to securing the apprehension or conviction of an offender who is known or believed to have committed a serious indictable offence (s 316(1), maximum penalty: imprisonment for 2 years).

Part 7 also provided a general offence of perverting the course of justice. This offence is punishable by a maximum penalty of 14 years’ imprisonment, and is one of the most serious of the public justice offences. No offence of obstructing or hindering a public official in the exercise of his or her official duty, or the like, was provided under Pt 7.
We do not draw from the Attorney General’s speech or the Explanatory Note that the Parliament is to be understood as having intended that the statutory offence of perverting the course of justice would extend to cover conduct involving the intentional obstruction, prevention or defeat in any way of the functions of a government body applying and enforcing the law of the State. This does not mean that s 319, when read with s 312, does not create such an offence. It is only to say that we do not discern support for the Crown’s submission as to the interpretation of s 319 and s 312 from the extrinsic material.
The Crown submitted that the elements of the offence are (WS [60] and [61]):
(a) The accused did any act or made any omission;
(b) With intent in any way to pervert the course of justice.
…
Perverting the course of justice includes:
(c) Obstructing, Preventing; or Defeating;
(d) The course of justice or the administration of the law.
The gravamen of the offence of attempting to pervert the course of justice at common law was described in R v Vreones [1891] 1 QB 360 per Pollock B at 369:
“The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice.”
The Crown’s submission is that the statutory offence under s 319 does not require proof that the conduct possessed the tendency to pervert the course of justice. In R v Charles, Court of Criminal Appeal (unreported) 23 March 1998, the appellant was convicted of an offence under s 319, involving the purported perversion of the course of justice, being the proceedings before a coroner conducting an inquest into a death. The appellant was alleged to have approached a woman, Mrs Marshall, whom he believed to be a witness at the inquest, with the request that she tell the police, falsely, that she had only met him on one occasion. The appellant’s conviction on this count was quashed on appeal. Each of the members of the Court assumed that proof of the tendency to pervert the course of justice was an element of the offence: Gleeson CJ at 5; James J at 20 and Barr J at 27. The summing-up was deficient in that it failed to direct attention to the respects in which it was suggested that the false account that the appellant had met Mrs Marshall only once could have obstructed the course of justice at the inquest: Gleeson CJ at 5; Barr J at 26.

In R v Karageorge (1998) 103 A Crim R 157, the question of whether it was necessary to establish that the act or omission possessed the tendency to pervert the course of justice was touched upon, although it was unnecessary for this to be decided. Sully J expressed his agreement with the following statements of principle in P Gillies, Criminal Law (3rd ed, 1993), pp 820-821:
““The statutory offences of this type refer to the perverting of the course of justice or ‘the (due) administration of the law’. Does the latter expression exclude the holding in Rogerson, that police investigations, or other administrative processes occurring prior to the vesting of the court’s jurisdiction in the subject matter, are not per se part of the ‘course of justice’ for the purposes of liability for the common law offence? The phrase would do this, conceivably, if it added to the scope of ‘course of justice’ and thus extended the scope of the statutory offence in a relevant way. In Rogerson, Mason CJ made the obiter comment that ‘the courts of justice’ and ‘the administration of justice’ are synonymous in their meaning – and that neither includes police investigations, in that the police do not ‘administer justice’. The expression ‘administration of the law’ (in the statutory provisions) is arguably broader in its scope, although the matter awaits judicial determination.
The New South Wales provision (Crimes Act 1900, s 319) refers to the offence there created as being one involving conduct intended ‘in any way to pervert the course of justice’. The expression, ‘pervert the course of justice’, it has been seen, is defined in s 312 (for the purposes, inter alia, of s 319) as referring to ‘obstructing, preventing, perverting or defeating the course of justice’. The offence then, is clearly broad in scope. It does not in its literal terms require the intentional doing of an act which actually perverts justice, or one having this tendency. Rather, it requires simply that the conduct of the accused be accompanied by the intent to pervert justice. It therefore embraces (as does the common law offence) acts which fall short of actually perverting justice, and which merely have this potential. Indeed, the actus reus of the statutory offence is apparently even broader than the common law offence – any act intended by D to pervert justice will suffice, even if it does not on an objective view either pervert the course of justice, or even have the tendency to pervert justice (because of, say, D’s miscalculations in the matter).”
His Honour’s endorsement of this statement was in a context in which he considered that, in the circumstances of that case, there was no question as to the capacity of the conduct to have the requisite tendency. Levine J noted that in Charles it had been assumed that the s 319 offence required proof that the act had the tendency. His Honour refrained from deciding the issue (at 173).
In R v Giovannone [2002] NSWCCA 323, the appellant was convicted of an offence contrary to s 319. It was the Crown case that he had asked a police officer to provide protection for a man named Rocky, who was dealing in illegal drugs in Kings Cross. One of the contentions advanced on appeal was that the s 319 count was bad in law in that it did not aver facts constituting an offence (at [30]). Mason P (with whose judgment on this point Hidden J and Carruthers AJ agreed) held that the count was good. His Honour observed that the requested assistance:
“[32] … fell clearly on the right side (for the Crown) of the distinction drawn by the High Court in R v Rogerson between interference with police investigations which are not themselves part of the course of justice and conduct which had a tendency to deflect the police from prosecuting an offence, which do. … The trial was fought on this issue. This constituted an attempted interference in the curial jurisdiction that the police would invoke if Rocky were arrested (cf Rogersonat 277, 284, 294-295, 304-305, 311). Merely because the defence case sought to put a different, benign interpretation on the request for police ‘protection’ did not render the charge bad in law. Nor does the fact that the charge sought to summarise the nub of the request rather than quoting specific passages of the conversation in direct speech.
[33] It therefore becomes unnecessary to consider the Crown's alternative submission (on appeal) that the conduct established in relation to the second count satisfied the latter part of s 312 of the Crimes Act. That section provides (emphasis added):
‘A reference in the Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.’
The events giving rise to the charges in Rogerson clearly predated whatever change to the common law was effected by s 312 when it was enacted in 1990. Its scope remains to be determined (see R v Karageorge (1998) 103 A Crim R 157). One difficulty with the Crown's invocation of s312 is the very form of the indictment, which in its first two counts, pleaded conduct with intent to pervert ‘the course of justice’. The indictment does not refer to ‘the administration of the law’.
[34] The trial judge told the jury that an act which constitutes a perversion of the course of justice is one which is an adverse interference with the proper administration of criminal justice (SU 12). I do not read this as invoking the latter part of s 312.”

Argument on the appeal did not address the question of whether the requirement of proof of the tendency to pervert the course of justice forms part of the statutory offence. It may be that, as the Crown submitted, it does not. This would point to the correctness of the Crown’s submission, that s 319 is not to be understood as simply restating the common law. It would also underline the protean nature of the offence if the definition is given its literal meaning.
In Saraswati v R (1990-1991) 172 CLR 1, McHugh J, in the course of discussing the construction of s 61E(2) of the Crimes Act, observed that (at 21):
“In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation. Consequently, it will constitute the ‘ordinary meaning’ to be applied. If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as ‘the ordinary meaning’ and cannot prevail. It must give way to the construction which will promote the underlying purpose or object of an Act: Interpretation Act, s 33”.
His Honour went on to refer to the judgment of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321. He continued (at 22):
“Furthermore, if the “ordinary meaning” of a legislative provision is manifestly absurd or unreasonable, a real doubt must arise as to whether Parliament intended the enactment to have its ordinary meaning: cf Cooper Brooks at 320. In In re Rouss [(1917) 116 NE 782 at 785), Judge Cardozo pointed out that, while consequences cannot alter the meaning of legislative provisions, they may help to fix their meaning.”
His Honour concluded that the ordinary meaning of the words “act of indecency” in s 61E(2) was not their literal meaning.
The Crown contended that to accept the applicant’s submissions is to treat the words “the administration of the law” as synonymous with “the course of justice” and, thus, to fail in the duty to give meaning and effect to all of the words of s 312. In this respect, the Crown invokes the principle stated in the joint reasons in Project Blue Sky Inc at 382; [71]:
“Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume [(1905) 2 CLR 405 at 414] Griffith CJ cited R v Berchet [(1688) 1 Show KB 106] to support the proposition that it was ‘a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent’.”
This was a consideration that troubled James J. The only suggested meaning of the expression “the administration of the law” (other than the literal meaning of the words) was one which his Honour considered added little, if anything, to the expression “the course of justice” as it was explained in Rogerson.

The Crown’s submission (at [61] above) assumes that “the course of justice” had a settled meaning at the time the Public Justice Amendment was enacted (it received assent on 18 September 1990). At that time, there was uncertainty about what constituted “the course of justice”. So much is apparent from the discussion in R v Rogerson (1990) 51 A Crim R 359 (per Lee CJ at CL at 365 – 374), which was delivered on 11 December 1990. The authoritative statement of what constituted the course of justice came with the subsequent decision of the High Court in Rogerson. In that case, Mason CJ observed that “the course of justice” is synonymous with “the administration of justice”. To this may be added that “the administration of the law” had been used in exactly the same sense in judicial discussion of the constituent elements of contempt of court. At common law, the latter offence encompassed attempts to pervert the course of justice: Carroll at 384; Rogerson per Lee CJ at CL at 366; Archbold’s Criminal Pleading Evidence and Practice (43rd ed) at 2463.
In R v Nicholls [1911] HCA 22; (1911) 12 CLR 280, the issue was whether the publication of an article in The Mercury in Hobart, which referred to the appointment of Justice Higgins to the Court and described him as a “political judge”, amounted to contempt of the High Court. Griffith CJ said at 286:
“The only question for us to determine here is whether these words are calculated to obstruct or interfere with the course of justice or the due administration of the law in this Court.” (Emphasis added.)
Since it was impossible to answer that question in the affirmative, the motion that Nicholls be committed to prison for contempt was dismissed.
More recently, in Lane v The Registrar of the Supreme Court of New South Wales (Equity Division) [1981] HCA 35; (1981) 148 CLR 245 at 257, the Court said this:
“Even if the charges had been, or were now to be, amended, the evidence would not establish that the appellant committed a contempt of court. The expression ‘contempt of court’ is often popularly misunderstood. In a case such as the present, the offence consists not in affronting the dignity of the court, but in interfering with the due administration of the law: see Attorney-General v Leveller Magazine ([1979] AC 440 at 459). As Cussen J said in In re Dunn; In re Aspinall ([1906] VLR 493 at 497), the essence of the offence is ‘action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense’”. (Emphasis added.)
A little more than a decade after Nicholls was decided, Tasmania adopted the Queensland Criminal Code, with some modifications: Criminal Code Act 1924 (Tas). Section 105 was in these terms:
“Any person who does any act or makes any omission with intent in any way whatever to obstruct, prevent, pervert or defeat the due course of justice or the administration of the law, is guilty of a crime.” (Emphasis added.)
Before the Public Justice Amendment, there was no suggestion that the offence provided for under the Tasmanian Criminal Code extended to conduct involving the obstruction, prevention or defeat of the functions of government bodies applying or enforcing the laws of Tasmania.
In State of Tasmania v Crane [2006] TASSC 82, Slicer J dealt with a motion to quash an indictment that charged the accused in these terms:
“Stephen Charles Crane at Deviot, in Tasmania, on or about the 27th day of October 2003 with intent to obstruct, pervert or defeat the due course of justice falsely pretended to transport inspector Cecil George Youl that he did not have a weighbridge docket and subsequently instigated Thomas Third to falsify a weighbridge docket indicating that the vehicle he had been driving, which vehicle had been involved in an accident, was not loaded beyond its permissible load limit.”
The judgment does not make clear whether the conduct was said to be done in contemplation of any proceedings arising out of the accident. Slicer J recorded the accused’s submission that the denial of the existence of a document in the course of questioning by a police officer was not capable of constituting a perversion of the course of justice. His Honour considered that the count was duplicitous. He granted leave to the Crown to amend. It appears to have been in contemplation that the accused would then demur to the count. The Court has not been able to find a report of any further proceedings on the amended indictment.

The offence of attempting to pervert the course of justice provided in s 140 of the Criminal Code (Qld) and in s 143 of the Criminal Code (WA) does not refer to “the due administration of the law”. Each provides:
“A person who attempts to obstruct, prevent, pervert or defeat the course of justice is guilty of a crime.”
Section 43(1) of the Crimes Act 1914 (Cth) provides:
“Any person who attempts, in any way not specifically defined in this Act, to obstruct, prevent, pervert, or defeat, the course of justice in relation to the judicial power of the Commonwealth, shall be guilty of an offence.”
It should be noted that, following the introduction of Part 7 into the Crimes Act, in South Australia the Criminal Law Consolidation Act 1935 (SA) was amended by the Statutes Amendment and Repeal (Public Offences) Act 1992, which abolished a number of common law offences and inserted in Part VII offences described as “Offences Of A Public Nature”. These included s 256:
“256(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.” (Emphasis added.)
In Police v Zammitt [2007] SASC 37, David J decided an appeal from the decision of a magistrate dismissing charges brought against the respondents, Work Care South Australia Pty Ltd and its director, who were charged with two offences of attempting to pervert the course of justice contrary to s 256(1). The charges related to attempts to claim exemption from speeding expiation notices. Rule 306 of the Australian Road Rules provides an exemption to drivers of emergency vehicles in certain circumstances. Vehicles owned by Work Care were detected by speed cameras exceeding the speed limit. On two occasions, the Director of Work Care wrote to the Expiation Notice Branch seeking to have the fines withdrawn. A police officer formed the opinion that the vehicle did not fulfil the requirements of r 306, since the vehicles were not fitted with flashing lights. The first respondent, in a letter to the Expiation Notice Branch, had made the assertion that the vehicles “have the same exemptions as any other Emergency Service Vehicle in South Australia”. David J observed that the assertions were arguably untrue (at [53)]. His Honour went on to say:
“[54] The magistrate said in her reasons:
‘Again the prosecutor failed to provide sufficient evidence as to the identity of the maker of the subject letters to the Expiation Branch.
More importantly there is insufficient evidence to establish the mental element required to prove either of these offences.
Further, it is my opinion that the laying of these charges was inappropriate. The issue of expiation notices for minor traffic (and other) matters is established by the Expiation of Offences Act. This scheme operates to facilitate the administration of fines payments for minor regulatory matters. Once an expiation notice is received the recipient can deal with the matter in a number of ways. No court proceedings are commenced against the recipient unless he or she specifically requests the matter to proceed to prosecution. The Act also envisages that the recipient and the issuing authority can enter into a mutually acceptable arrangement to resolve the matter. There is no prohibition on a recipient from contacting the relevant authority and requesting that the notice be withdrawn.’
I agree that as a matter of law, putting the prosecution case at its highest, the conduct alleged could not amount to an offence of attempting to pervert the course of justice.”
His Honour referred to the judgment of Brennan and Toohey JJ in Rogerson at 284, and concluded:
“[56] The magistrate correctly noted that the system of expiation notices is essentially an administrative system and not curial proceedings. The conduct alleged of the respondents cannot be said to have avoided or otherwise perverted curial proceedings, as these proceedings could only occur by the election of the respondent. It follows that counts 11 and 14 are not made out.”
It does not appear that the point now taken was considered in Zammitt.

The decision to codify the law of this State with respect to public justice offences does not appear to have followed any report of the New South Wales Law Reform Commission. Nothing in the extrinsic material to which the Court was referred assists in ascertaining the purpose of defining “perverting the course of justice” to include “the administration of the law”. At the date of the Public Justice Amendment, the cognate offences in Victoria and South Australia were the common law offences. Among the Code States, Tasmania was alone in defining the offence by reference to “the due administration of the law”. The Tasmanian experience in the 65 years since the enactment of the Code had not suggested that the offence extended to conduct involving the intentional obstruction of the functions of government bodies in applying and enforcing the law.

In the passage set out at [73] above, Professor Gillies queries whether the expression “the administration of the law” may have been included in s 312 to extend the scope of the offence of perverting the course of justice to include police investigations at a stage before the court is invested with jurisdiction, which do not form part of the “course of justice” on the law as it was explained in Rogerson. It is unlikely that this would serve to explain the inclusion of the similar expression in description of the offence in the Tasmanian Code, since, as McHugh J points out in Rogerson, it was not until 1933 [R v Manley [1933] 1 KB 529] that anybody appears to have suggested that a wilfully false statement made to a police officer in relation to an actual, alleged or suspected crime might by itself constitute the offence of attempting to pervert the course of justice.
“The administration of the law” does not readily describe the role of the police in the investigation of crime. Expressions such as the “enforcement of the law” or the “investigation of crime” would seem more apt if it were Parliament’s intention to include within the offence of perverting the course of justice conduct involving the obstruction or perversion of a police investigation, in circumstances in which the offender did not have curial proceedings in contemplation. In our opinion, the scheme of Pt 7 does not suggest that Parliament intended to include police investigations within the umbrella of “the course of justice” for the purpose of the offence of perverting the course of justice. This is because of the exactitude with which the offences in ss 315 and 316 were drafted (section 315A was inserted by the Crimes Amendment (Gang and Vehicle Related Offences) Act 2001). Section 315 is confined to conduct involving the intentional hindering of the police in the investigation of a serious indictable offence committed by another. A serious indictable offence is one punishable by imprisonment for life or for a term of 5 years or more (s 4 of the Crimes Act). The offence in s 316 is also confined to concealing information with respect to a serious indictable offence. It would seem anomalous, given the provision for these specific offences involving conduct intended to obstruct the police in the investigation of serious crime, if the Court were to construe s 319, by reason of the definition in s 312, as including any conduct intended to obstruct the police in the discharge of any function involving, applying or enforcing any law of the State.
We do not see how the expression “the administration of the law” could be interpreted to apply to the police investigation of crime without also applying to the activities of other public officials whose functions include applying and enforcing the laws of the State. A wilfully false statement made to a State Revenue Transit Protection Officer about the circumstances in which a weekly bus pass was lost would on such an interpretation of the provision be a perversion of the course of justice punishable by a maximum of 14 years’ imprisonment.
McHugh J made the point in Rogerson (at 304):
“Moreover, if, contrary to history and principle, this Court now declared that the common law misdemeanour of attempting to pervert the course of justice was established simply by the making of a wilfully false statement in relation to an alleged, actual or suspected crime, it is difficult to see how the offence could be limited to investigations by police officers. Many government officials, besides police officers, are today charged with the duty of investigating breaches of the law. Indeed, any wilfully false statement made to any person investigating whether curial proceedings should be instituted in respect of an actual or supposed civil or criminal wrong would also be arguably within the ambit of the offence. In the result, conduct which for hundreds of years has not been in breach of the criminal law would become so without legislative authority. Whether conduct which intentionally misleads police officers and other government officials should be punishable as an offence, and, if so, to what extent, must remain a matter for the legislature and not the courts.”
One legal assumption that informs the approach to the construction of s 312 and 319 is the assumption against extending the scope of a penal statute: Ex Parte Fitzgerald: Re Gordon (1945) 45 SR(NSW) 182 per Jordan CJ at 186 and Krakouer v R [1998] HCA 43; 194 CLR 202 per McHugh J at 223 [62]-[64]. In R v Orcher [1999] NSWCCA 356; 48 NSWLR 273 at 277 [16], Spigelman CJ, in considering whether a police officer is a “public justice official” for the purposes of Part 7, referred to, “the well-established principle of statutory construction that an ambiguous statutory provision which affects the liberty of the subject should not be read to restrict liberty.” The principle, as his Honour explained, only operates in the case of uncertainty or ambiguity.
In Plaintiff s157/2002 v The Commonwealth of Australia [2003] HCA 2; 211 CLR 476 at 492 Gleeson CJ said:
“…[C]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.” (Citations omitted)
In Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 Gleeson CJ expressed it this way (at 577 [19]):
“… In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this court in recent cases. It is not new. In 1908, in this court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that ‘[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.
[20] A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.”
The Chief Justice’s observations, set out above, were affirmed in the joint reasons in CTM v R [2008] HCA 25; 82 ALJR 978 at 982 [7]. In CTM, the issue was whether the Crimes Amendment (Sexual Offences) Act 2003 (NSW), which removed the statutory defence provided for in s 77(2)(c), with respect to the offence under s 66C. Under s 77(2) (c), a person charged with an offence involving consensual sexual activity with a person aged between 14 and 16 years, had a defence to the charge if he or she had reasonable cause to believe, and did in fact believe, that the person was above the age of 16 years. The common law principle that criminal liability does not attach to conduct involving an honest and reasonable, but mistaken, belief in a state of affairs was held not to have been displaced notwithstanding the abolition of the statutory defence.

We have concluded that the obiter statement in Subramaniam with respect to the scope of the offence in s 319 should not be followed. The owner of the vehicle in Subramaniam had elected to have the matter dealt with by the court, and the present question did not arise. The Court did not have the benefit of the careful arguments presented by counsel which this Court has had.

In our opinion, the words “the administration of the law” in s 312 are not to be accorded their literal meaning, which, like James J, we take to include the exercise by a government body of its functions in applying and enforcing the law of this State. That meaning would result in a very wide range of conduct, including conduct that was not previously unlawful, being criminalised as a perversion of the course of justice. This result is a reason to consider that the literal meaning of the words may not be the ordinary meaning to be given to the expression in this statutory context.

The literal meaning of the words in the definition does not fit harmoniously with the scheme of the Crimes Act and Pt 7, in particular. In codifying this part of the law, the Parliament carefully defined offences and ranked them in order of relative seriousness. This is reflected not only in the range of the maximum penalties for the offences, but in the circumstance that many of the offences are made Table 1 offences under s 260 of the CPA: ss 314, 315, 316, 317, 321, 322, 323, 325, 326, 327,330, 333 (1), 335, 336 and 337. Offences listed in Table 1 may be dealt with summarily unless an election is made for trial on indictment. If dealt with summarily, such offences are subject to a maximum penalty of two years’ imprisonment: s 267 of the CPA. The offences in ss 321, 322, 323 and 333 (1), which are subject to an increased maximum sentence in the event the conduct was intended to procure the conviction or acquittal of any person for a serious offence, may not be dealt with summarily if that feature of aggravation is alleged. The Parliament reserved the offence of perverting the course of justice in s 319 as among the most serious of the public justice offences. It is not an offence that in any circumstance may be dealt with summarily. Notable is the absence in Pt 7 of an offence or offences dealing, in terms, with the obstruction of public officials or government bodies in the administration of the law.
In our opinion, the expression “the administration of the law” in s 312 is to be understood in the sense that we take Sir Samuel Griffiths to have used it in Nicholls and in the way it has subsequently been used in this area of legal discourse, which is the administration of the civil and criminal law by courts and tribunals. Understood in this sense, the expression differs little, if at all, from the expression “the course of justice” as explained in Rogerson. However, there is no reason to conclude that this was appreciated at the time of its enactment.

For these reasons the orders that the Court propose are as follows:
ORDERS
1. Grant leave under s 5F(3) of the Criminal Appeal Act 1912;
2. Allow the appeal and set aside James J’s order dismissing the relief claimed in prayer 2 of the Notice of Motion filed on 15 April 2008;
3. Quash counts 1 to 5 in the indictment dated 21 January 2008;

**********

AMENDMENTS:

15/10/2008 - The addition of counsel's name - Paragraph(s) [2] and coversheet

LAST UPDATED:
15 October 2008