R v Enslow
[2003] TASSC 119
•12 November 2003
[2003] TASSC 119
CITATION: R v Enslow [2003] TASSC 119
PARTIES: R
v
ENSLOW, Mark Sean
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: C271/2003
DELIVERED ON: 12 November 2003
DELIVERED AT: Hobart
HEARING DATES: 11, 12 November 2003
JUDGMENT OF: Underwood J
[Edited reasons for judgment given orally]
CATCHWORDS:
Criminal Law – Particular offences – Offences relating to the administration of justice – Other offences – Compounding a crime – Elements – Whether necessary to prove agreement or understanding to abstain from instituting criminal proceedings.
R v Burgess (1886) 16 QBD 141, followed.
Criminal Code 1924 (Tas), s102.
Aust Dig Criminal Law [316]
REPRESENTATION:
Counsel:
Crown: J N Perks
Accused: J F W Crotty
Solicitors:
Crown: Director of Public Prosecutions
Accused: James Crotty
Judgment Number: [2003] TASSC 119
Number of Paragraphs: 11
Serial No 119/2003
File No C271/2003
THE QUEEN v MARK SEAN ENSLOW
REASONS FOR JUDGMENT UNDERWOOD J
(ORAL RULING) 12 November 2003
The accused is charged with a breach of the Criminal Code ("the Code"), s102. The case pleaded against him by the indictment is that he solicited a benefit, namely $50,000, in consideration of him agreeing to abstain from prosecuting the crimes of unlawful sexual intercourse with a young person and/or indecent assault. At the close of the prosecution case, Mr Crotty, counsel for the accused, submitted that there was no case to answer. Shortly stated, the submission was that as the offences named in the particulars are indictable offences, the accused had no power to abstain from prosecuting them, as he had no power to institute or continue a prosecution for those offences in the first place. For the Crown, Mr Perks, contended that the word "prosecution" should be given a wide meaning and include actions by the complainant which would have the effect of preventing the commencement of criminal proceedings against the alleged offender.
The procedure for the prosecution for an indictable offence is governed firstly by the provisions of the Justices Act 1959, s27(3) and, secondly, by the provisions of the Code, s420. They provide respectively:
"(3) A complaint of a breach of the Criminal Code may not be made by a person other than ¾
(a)a public officer;
(b)a person authorized or directed to make the complaint by the Crown or the Commonwealth; or
(c)an officer of a municipality or another statutory public or local authority ¾
acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds."
"420 (1)Any person may, by leave of the Supreme Court, file an indictment against any other person for any crime alleged to have been committed by such other person.
(2)Leave to file any such indictment shall be granted upon such terms and conditions as the said Court in any case for the purpose of securing the substantial ends of justice thinks fit to direct.
(3)Every such indictment shall be endorsed with the words "Filed by leave of the Supreme Court of Tasmania", and with the name of the person prosecuting the same."
There was, as Mr Crotty submitted, no evidence that the complainant was authorised in the manner provided by those sections to institute any proceedings for the offences set forth in the indictment.
What is the offence created by the Code, s102? At the outset, it is important to note that the provisions of this section have remained unaltered since first enacted in 1924. The statutory provision was obviously based upon the common law offence of compounding a felony. This offence has ancient origins. It was first described as "theft-bote". See Hawkin's Pleas of the Crown, 73 – 74; Russell on Crimes, 5 ed, vol 1, 292. Theft-bote was committed when the party robbed not only knows the felon, but also takes his goods again, or other amends, upon an agreement not to prosecute. It might be distinguished from the common law offence of misprison of a felony where a man, instead of performing his duty and giving information to the public authorities of a crime that he knows has been committed, conceals his knowledge. See R v Crimmins [1959] VR 270 at 272 – 273; cf Williams v Bayley (1866) LR 1 HL 200 at 220.
At common law, it was not an offence to abstain from prosecuting simpliciter, nor was it an offence to receive back the stolen goods. "It was the agreement not to prosecute which constituted the offence and it is immaterial whether there was or was not a subsequent failure to prosecute", per Halsbury's Laws of England, 2 ed, vol 9, par581. The elements in the offence of compounding a felony were discussed in some detail in R v Burgess (1886) 16 QBD 141. In that case, Coleridge CJ pointed out, at 146 – 147, that it was the agreement itself that created the offence and, notwithstanding any apparent limitations on the early offence of theft-bote, compounding a felony could be committed by someone other than the owner of the goods or, I infer, the victim of the crime. See also Whitmore v Farley (1881) 45 LT 99.
It will be seen that the enactment of s102 considerably expanded the common law offence of compounding a felony. The section provides not only for the case of obtaining a benefit in return for not prosecuting, but also for a case of soliciting, receiving or obtaining, a benefit. The agreement aspect of the common law offence of compounding a felony is also broadened to include not only an agreement not to prosecute, but also an "understanding" not to prosecute. The common law offence is further extended to include an agreement or understanding to discontinue or delay prosecuting as well as to abstain from prosecuting. These provisions widen the common law offence which only embraced an agreement not to prosecute. In addition, the section includes the common law offence of misdemeanour of misprison of a felony, but only in the event of misprison in return for soliciting or receiving or obtaining a benefit. However, the concept of prosecution remained unaffected by the enactment of s102.
With respect to the submission put by Mr Crotty on behalf of the accused, it must be noted that at the time the Code, s102, was first enacted, the relevant procedure in the Magistrates Court was governed by the Justices Procedure Act 1919, s23. That section encompassed both simple and indictable offences and provided:
"Proceedings before justices shall be commenced by a complaint which may be made or laid by the complainant in person, or by his counsel or solicitor or other person authorised in that behalf."
That section was substantially re-enacted by the Justices Act, s27. It is consistent with the common law. It remained unaltered until the enactment of the Justices Act 1974, s27. The provisions of that enactment remain in force today and are set out above. However, in 1974 no corresponding change was made to the Code, s102. At the time that section was enacted, any person could lay a complaint for a criminal offence.
The foregoing historical excursion leads me to the conclusion that the reference to abstaining from a prosecution in the Code, s102, means the abstaining from the prosecution of a criminal proceeding in a court of law. That was the position at common law. The legislators broadened the concept of the common law offence, but retained the use of the word "prosecution". I see no warrant for construing the section otherwise.
That being so, a nice question arises with respect to impossibility. Can it be said that the accused abstained from doing something that it was legally impossible for him to do? This question raises some difficult jurisprudential issues that fortunately do not have to be resolved this time for the following reasons. There is no evidence upon which the jury, acting reasonably, and in accordance with law, could find that the accused solicited a benefit for an agreement or understanding to abstain from prosecuting for the crimes identified. There is plenty of evidence from which the jury could find that the accused solicited a benefit for an agreement not to report the crimes to the police and perhaps, not to give evidence against the person alleged to have committed the crimes and from whom the accused solicited the benefit. According to Mr Daly's evidence, the accused told him several times that he would go to the police if the agreement was not reached. Once he said that he would contact his lawyer, and once he said that he would not be walking into the courtroom if an agreement was reached. However, there is no evidence from which the jury could be satisfied, as they are required to be satisfied, that the accused solicited a benefit for an agreement or understanding that he would abstain from commencing or bringing or continuing a criminal proceedings in a court.
The jury will be directed to acquit.
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