R v Gatti and Attorney-General of Queensland
[1996] QCA 532
•20/12/1996
| IN THE COURT OF APPEAL | [1996] QCA 532 |
| SUPREME COURT OF QUEENSLAND |
C.A. No. 331 of 1996.
Brisbane
[R v. Gatti; ex parte: Gatti]
T H E Q U E E N
v.
CHRISTOPHER RAYMOND GATTI
Respondent
REFERENCE BY ATTORNEY-GENERAL
UNDER S. 669A OF THE CRIMINAL CODE
___________________________________________________________________
Fitzgerald P.
Pincus J.A.Lee J.
_________________________________________________________________
Judgment delivered 20 December 1996
Separate Reasons for Judgment of each member of the Court; Lee J. dissenting
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Question: | Upon a charge under s. 127(1) of the Criminal Code, is it an essential element of the offence for the Crown to prove that there was a concluded agreement or understanding reached between the offeror and the witness that the witness should give false testimony or withhold true testimony? |
Answer: | Upon a charge under s. 127(1)(a) of the Criminal Code, it is not an essential element of the offence for the Crown to prove that there was a concluded agreement or understanding reached between the offeror and the witness that the witness should give false testimony or withhold true testimony. |
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CATCHWORDS: | Criminal Law - whether s. 127(1)(a) requires a concluded agreement or understanding - meaning of "upon" in s. 127(1)(a) - Danahay [1993] 1 Qd.R. 271 - intention of provisions - whether attempts can constitute an offence within s. 127(1)(a). |
| Counsel: | Mrs L Clare for the appellant. Mrs D Richards for the respondent. |
| Solicitors: | Queensland Director of Public Prosecutions for the appellant. |
Legal Aid Office of Queensland for the respondent.
| Hearing date: | 17 September 1996. |
REASONS FOR JUDGMENT - FITZGERALD P.
Judgment delivered 20 December 1996
The circumstances giving rise to this proceeding are set out in the reasons for judgment of Pincus J.A. Since first writing a draft judgment, I have reconsidered my original opinion in the light of Lee J.’s detailed reasons for arriving at the opposite view from that reached by Pincus J.A.
Much of the argument before this Court was related to the decision of the Court of Criminal Appeal in R. v. Danahay [1993] 1 Qd.R. 271. As the judgments of the other members of the Court illustrate, there is scope for argument concerning whether, in Danahay, Williams J. agreed with Lee J. on the point now in issue. Thomas J. was plainly of the opposite view. In the circumstances, I think it more helpful to construe the material provision of the Code, sub-s. 127(1)(a), than to attempt to determine what was decided in Danahay.
Section 127 is in Ch. 16 of the Code, “Offences Relating to the Administration of Justice”, which contains a broad “catch-all” provision, s. 140, which makes it an offence to attempt to obstruct, prevent, pervert or defeat justice by any means not otherwise provided for, albeit with a significantly lower maximum penalty than is provided for in s. 127. There is therefore no justification for giving that section a wider operation than its literal meaning might otherwise require in order to avoid a gap in the legislation, and, as a penal provision, it should be construed strictly. Lee J.’s judgment demonstrates that the view which he expressed in Danahay, to which he adheres, finds some support in Sir Samuel Griffith’s sidenotes to the draft Code, and caselaw from the United States of America. On the other hand, the language of sub-s. 127(1)(a) makes it plain it is intended to have a wide operation.
The offence provided for by sub-s. 127(1)(a) is expressed by reference to circumstances which include more than the offender’s conduct, which itself involves a number of different concepts;[1] namely, (i) giving property or conferring a benefit, (ii) procuring property or a benefit (to be given or conferred), (iii) promising to give property or confer a benefit, (iv) offering to give property or confer a benefit, (v) promising to procure property or a benefit (to be given or conferred), (vi) offering to procure property or a benefit (to be given or conferred), (vii) promising to attempt to procure property or a benefit (to be given or conferred), and (viii) offering to attempt to procure property or a benefit (to be given or conferred). In each case, the conduct must be “upon” an “agreement or understanding” of a specified nature.[2] Thus, for example, if the conduct is in category (i), the offence will consist in giving property or conferring a benefit “upon” such an “agreement or understanding”; in such a case, the subsection might contemplate an “agreement or understanding” which is in existence when the property is given or the benefit conferred, and not a prospective “agreement or understanding”. However, that is not the issue presently before the Court.
[1] The position is further complicated by the circumstance that the person to receive the property or benefit and the person “called or to be called as a witness in a judicial proceeding” and, perhaps, the person other than the offender who is party to the existing or
[2] “that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony”.
The point referred by the Attorney-General is concerned with the elements of an offence under sub-s. 127(1)(a) involving only two parties, one a witness or prospective witness and the other a person who offers to give money to that witness or prospective witness to give false testimony or withhold true testimony in a judicial proceeding. The issue is whether an offence against sub-s. 127(1)(a) is complete when the offer is made, or whether it is necessary that an “agreement or understanding” is concluded between the offeror and the witness and prospective witness, i.e., by the latter’s assent to the offer, before the offeror contravenes the subsection.
Although my mind has fluctuated, I prefer the former view. It seems to me significant that the material portion of the subsection refers to “promises” and “offers”. Some distinction must be drawn between the two, and, if the word “offers” is not to be treated as otiose, it must add to what is encompassed by the word “promises”. The most natural and obvious means for this to be done is to regard the reference to “offers” as extending to the period prior to the response of the witness or prospective witness, and having an operation which is independent of the nature of that response and of whether the “offer” becomes converted into a “promise”, whether conditional or unconditional. Additional support for this construction might be found in the consideration that it has the effect that the question whether an offence is committed is solely concerned with the conduct of the alleged offender, and not dependent on the attitude adopted by another person, the witness or proposed witness.
I agree with the order proposed by Pincus J.A.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 20 December 1996
C R Gatti was charged in the District Court on an indictment containing a single count, to the effect that he offered to give Rochelle Ramsay $10,000 upon an agreement that Ramsay would withhold her testimony on certain trials. The judge held that the Crown had to prove that there was an agreement or understanding between Ramsay and Gatti and the Crown therefore entered a nolle prosequi. The Attorney- General has referred to this Court the following point of law: upon a charge under s. 127(1) of the Criminal Code, is it an essential element of the offence for the Crown to prove that there was concluded agreement or understanding reached between the offeror and the witness that the witness shall give false testimony or withhold true testimony?
It is necessary to deal with discussion of the point which is to be found in the reasons of the members of the Court of Criminal Appeal in Danahay [1993] 1 Qd.R. 271, but it seems desirable, for the sake of clarity, first to discuss the matter without reference to what was said in Danahay.
Section 127 of the Code is, in whole, as follows:
" (1) Any person who -(a) gives, confers, or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony; or
(b) attempts by any other means to induce a person called or to be called as a witness in any judicial proceeding to give false testimony or to withhold true testimony; or
(c) asks, receives, or obtains or agrees or attempts to receive or obtain, any property or benefit of any kind for himself, herself or any other person, upon any agreement or understanding that any person shall as a witness in any judicial proceeding give false testimony or withhold true testimony;
is guilty of a crime, and is liable to imprisonment for 7 years.
(2) The offender cannot be arrested without warrant. " (emphasis added)
The section is set out as printed in the 1994 Reprint; what was formerly s. 127(1) has become s. 127(1)(a).
The essential point is the meaning of the emphasised word "upon". To make the discussion more concrete, I postulate that an accused offers a person who is expected to be a witness at the accused’s trial a thousand dollars if the witness will swear falsely at the trial that he saw nothing of the offence alleged against the accused. On the Crown’s argument, that would be an offence under s. 127(1)(a) because the accused is a person who "offers to give . . . any property or benefit . . . to . . . any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceedings shall give false testimony . . . ". But on the respondent’s contention, there is no offence under s. 127(1)(a) because the facts I have set out do not prove that any agreement or understanding was made or reached. As Mrs Richards for the respondent ultimately argued, the respondent would read the word "upon" in para (1)(a) as equivalent to "under". The Crown, on the other hand, would read it as meaning "in connection with" or "in respect of".
Neither expression would accord with current usage. A person intending to convey that he or she was offering to do something under an agreement would not say: "I offer to do this upon our agreement". Nor would a person intending to convey a willingness to pay money to make an agreement talk about paying the money "upon" an agreement. It is true that sometimes "upon" has reference to time, as in the expression "upon your making this agreement I shall . . . "; but that is a different type of grammatical construction.
The Oxford Dictionary gives many meanings and examples of usage of the word "upon" and provides evidence that the word can mean "with respect or regard to; in reference to; touching, concerning; as to;" - see meaning 22. The last example of this usage which is given is "This case raises a novel point upon which there is no authority", that being a mode of expression which has lasted until the present day. I have not been able to find in the Oxford any authority for the use of "upon" as meaning "in pursuance of" or "under".
If the respondent is right, then the accused who offers a thousand dollars for a witness’ agreement to give false evidence is not thereby guilty of an offence under (a); nor, as it seems to me, would (b) apply. This is so because (b) covers only "attempts by any other means" - i.e. by means other than those mentioned in (a). The natural reading of this is to take it as referring to means other than, for example, giving property or a benefit.
Unless one starts from the assumption, which I think to be a dubious one, that the natural meaning of "upon" in this context is "under" or "in pursuance of", the inference that the legislature intended a broad meaning to be given to the word "upon" seems strong. It is a construction I would adopt in the absence of clear authority to the contrary.
It is suggested that such authority is to be found in Danahay. It seems to me clear enough that there, Thomas J. adopted the view of the section which I favour, i.e. that there can be an offence under s. 127(1)(a) although no agreement or understanding is arrived at, as when the witness is promised money to give false evidence, but has not indicated whether or not he will do so. I have reached the conclusion that Williams J. did not find it necessary to give any specific consideration to the point presently in issue and that remarks his Honour made which might be suggested to accept the respondent’s present contention were not directed to this point.
After explaining the evidence given, his Honour set out (at p. 278) the grounds of appeal. The first was dealt with beginning at p. 278 l. 30, the second at p. 279 l. 43, and the third seems to begin at p. 284 l. 4.
It was in dealing with the second ground that Williams J. made the remarks which are presently contentious. His Honour introduced the discussion by saying:
"The next contention on behalf of the appellant was that the offence in question was not ‘satisfied by proof of an offer to a prospective witness to go away with assistance and simply not give evidence’ ".
This ground was, as his Honour explained, based on the suggestion that what was in issue was the witness not being "able (for any reason) to give any testimony at all" (p. 280 l. 1).
Williams J. made a number of references to "agreement or understanding" in ways which the respondent would say assists his contention; I think it is necessary to quote only the first:
"In other words s. 127 makes it an offence to corrupt a witness by entering into an ‘agreement or understanding’ or by offering an inducement, and the offence is complete whether or not the agreement, understanding or inducement in fact leads to the giving of false testimony or the withholding of true testimony." (282)
When this sentence is read in context, it is seen not to be dealing with the point presently at issue, but to be part of a discussion of the relationship between ss. 127 and 130. What his Honour said about s. 127 was broad and general rather than definitive; judges sometimes give only a general account of the effect of a provision, to avoid making discussion too detailed to be easily comprehensible. What Williams J. said was not an adoption of the view presently put forward by the respondent. The respondent does not contend that para. (a) makes it an offence to enter into an agreement; the argument is, I think, that para. (a) cannot operate unless an agreement has been made and that it makes into offences various things done under the agreement.
It is also permissible to note that Williams J., in the course of a fairly elaborate judgment, made no express reference to the question here discussed: what does the word "upon" mean, in this context? His Honour did not do so because he was not dealing with that issue.
The headnote of Danahay says that it was decided there that:
"Section 127(1) created an offence of corrupting a witness by entering into an agreement or understanding in terms of which the witness should withhold true testimony . . . ".
This appears to me to accord with the view of Lee J. expressed in Danahay but it is not clear from his Honour’s reasons whether they support the reading for which the respondent has contended in this Court. There is of course a difference between saying that the act of entering into the agreement or understanding is an offence and saying that what is done under the agreement or understanding is an offence; it is the latter view which is being contended for here. The Crown’s argument, on the other hand, is that the mention of an agreement or understanding in the section, or in any other expression, does not necessarily mean that one exists; for example, the sentence "The offer was to pay me money on or in connection with an agreement to give false evidence, but it was rejected" makes perfect sense. If the respondent is right, then acceptance of the offer would be necessary to create an offence; it would seem odd that the reaction of the person to whom the accused made the offer should determine whether or not the accused had committed an offence.
In my opinion the answer which is proposed by the Crown should be made, in relation to the point referred by the Attorney-General:
"Upon a charge under s. 127(1)(a) of the Criminal Code, it is not an essential element of the offence for the Crown to prove that there was a concluded agreement or understanding reached between the offeror and the witness that the witness should give false testimony or withhold true testimony."
REASONS FOR JUDGMENT - LEE J
Judgment delivered 20 December, 1996
I have perused the reasons of each of the President and Pincus JA. I am, with respect, unable to agree with Pincus JA's conclusion that the subject matter of this reference was not previously determined by a majority of the Court of Criminal Appeal in R v Danahay [1993] 1 Qd.R. 271. In my opinion it was, as it will be necessary to demonstrate. The learned District Court judge was correct in his conclusion on this point.
The approach I take therefore, is whether or not that decision should now be followed in the light of further argument and research which has resulted from the current application. The Court of Appeal is not reluctant in declining to follow a previous decision of the Court of Criminal Appeal if that decision has been shown to be wrong or if there are other reasons which warrant a different conclusion: see e.g. R v Hughes (C.A. No. 283 of 1994, 21st December 1994, unreported) where Pincus JA at p.2 of his reasons ruled that a "correct direction" concerning s.28 of the Criminal Code (intoxication) specifically laid down by Mack J (with whom Gibbs J agreed, Hanger J in substance concluding the same) as long ago as 1965 in R v Crozier [1965] Qd.R. 133 at 134, was wrong and should not be followed.
The question posed in this case by the Attorney-General is identical to that under consideration in Danahay:
"Upon a charge under s.127(1) of the Criminal Code, is it an essential element of the offence for the Crown to prove that there was a concluded agreement or understanding reached between the offeror and the witness that the witness shall give false testimony or withhold true testimony?"
In the latest edition of Carter, s.127 has been renumbered. When Danahay was decided, the three alternatives referred to in the section were numbered (1), (2) and (3). The section now is numbered s.127(1)(a), (b), (c) and (2). It is clear from the record in this matter and from the question itself, that it relates only to s.127(1)(a) of the Code as it presently appears, and not to the whole of s.127(1) as presently numbered. The section now reads as follows:
"CORRUPTION OF WITNESSES
127 (1) Any person who -
(a)gives, confers, or procures, or promises or offers to give or confer, or to procure or
attempt to procure, any property or benefit of any kind to, upon, or for, any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony; or
(b)attempts by any other means to induce a person called or to be called as a witness in any
judicial proceeding to give false testimony or to withhold true testimony; or
(c)asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person, upon any agreement or understanding that any person shall as a witness in any judicial proceeding give false testimony or withhold true testimony;
is guilty of a crime, and is liable to imprisonment for 7 years.
(2)The offender cannot be arrested without warrant."
The question turns on the meaning of "upon any agreement or understanding" in s.127(1)(a). The current controversy could easily have been avoided had the draftsmen used words such as "with the intention that ..." or "... in order to induce any person called ...", or "... in order to influence any person ..." (with necessary adaptations), as appears in other sections of the Code; see eg ss.102, 103(1), 122, 128, 129, and in legislation elsewhere, which would have clearly pointed only to the mental state of the offeror. Other sections use words such as "on account of anything done or to be done": ss.87, 103, 120, 121. It must be assumed that the choice of the phrase was quite deliberate when compared with other terminology used elsewhere.
R v DANAHAY
The grounds of appeal in Danahay were widely stated at p.(iii) of that record (repeated at 287
of Danahay):
"(1)The Learned Trial Judge erred in law in directing the jury as to the elements of the
offence.
(2)The Learned Trial Judge erred in law in failing to direct the jury that the offence charged was not made out by evidence that the Appellant offered Edwards a benefit to go overseas and thereby not give evidence, or go into hiding and thereby avoid giving evidence.
(3)The Learned Trial Judge erred in law in failing to direct the jury adequately or at all as to the relevance of the state of mind of the appellant as to the truthfulness or otherwise of different versions of events of Edwards.
(4)The Learned Trial Judge erred in law in failing to rule that there was no case to answer."
The late Mr Herbert QC appeared for the appellant and Mr Costanzo for the Crown. Mr Costanzo also appeared for the Crown in the current matter before the learned District Court judge. During submissions on the precise question now raised (p.51-55 of the current record) and in answer to a question from His Honour whether there was any other authority apart from Danahay, Mr Costanzo said at p.56:
"No there is not. I in fact appeared in Danahay and I recall that both myself and the late Mr Herbert did research the matter quite thoroughly and argued it thoroughly."
Despite that research, no authority, either Australian or overseas, was submitted on the critical question. Nor was any submission made in that case (or indeed in this case) as to the history leading up to the introduction of this provision. Nor was reference made to comparable provisions and authorities elsewhere. As will subsequently appear, those matters throw light on the question at issue.
Mr Herbert submitted (inter alia) that it was left to the Crown to prove (beyond reasonable doubt), all the necessary elements to constitute the offence, which it was submitted, the Crown had failed to do, and that the section required proof "of an understanding that when the person gives evidence, he will withhold the truth" (see per Thomas J 273 L40-50 and the submission as to a "positive" understanding, per Williams J at 279 L43-50, and my judgment at 292 L41-50). Mr Herbert also submitted that the charge was brought under the wrong section and that s.130 was applicable (288 L37-38).
The charge was that Danahay offered Edwards the benefit of a contract of employment and overseas travel upon an understanding that Edwards, then about to be called in a judicial proceeding ... should either withhold true testimony or ... give false testimony (276 L2-15, 287 L9- 20), as the subsection prescribes, when the evidence showed only that the relevant offer was that the witness would disappear out of the country and not give evidence at all (option II per Thomas J 272 L26-29, per Williams J 277 L48-52, 278 L18-21, and my judgment at 293 L35-41, 294 L23-31). It was submitted that there was no proof of an essential agreement or understanding capable of bringing the appellant within s.127(1)(a).
The Crown's initial approach to the question is evident from Mr Costanzo's submission in the written addendum to his outline in Danahay as follows:
"The gist of the offence in s.127(1) is the corruption of the witness, not the corruption of his testimony. He is corrupted by being induced into an arrangement or understanding to give false evidence or to withhold true evidence, for consideration i.e. some property or benefit. It is the element of corruption which makes the penalty higher under s.127 than s.130." (emphasis added).
The Crown, unlike its approach on the current reference, was clearly contending that a concluded agreement or understanding was necessary. However, during oral argument when the question arose as to whether an actual agreement or understanding was necessary with the witness at all, Mr Costanzo submitted that this may not be necessary in order to constitute an offence under s.127(1)(a) but only the offer, providing its purpose was to secure one of the desired results referred to in the subsection. There was also a significant doubt as to whether the witness in that case truly accepted the offer or did so only under duress or threats to himself or relatives and friends (276 L45 - 277 L25, 290 L2-17, L38-45, 295 L5-20, L40-45, 296 L45, 297 L15). There was also an attack on the credibility of the witness at the trial although the credibility question was not advanced on the appeal, as it could not be, as a reason for contending that no agreement or understanding was arrived at (297 L26-33).
Whether an agreement or understanding was arrived at, as well as its nature and its terms, either because it was not a real agreement or understanding, or because the witness was unworthy of credit, was a question for the jury as Williams J said at 276 L20. See also my judgment at 296 L1-5 and Thomas J's judgment at 272 L8-22, although the appellant contended that the evidence was not capable of showing an agreement as required by the subsection.
The ultimate question on this point was whether the trial judge's specific direction to the jury (at p.185 of that Record) stressing the need for a concluded agreement or understanding between the appellant and the witness was an error against the Crown as Thomas J held at 273 L23-25. On the other hand, Williams J at 283 L35-38 held that there was no misdirection and said that "the jury was directed to the critical issue whether or not there was an agreement or understanding directed to one of the specified consequences" (emphasis added).
The point was therefore a live issue and was necessarily dealt with by all members of the court in various contexts. Williams J in his judgment said at the outset that s.127 had not previously been subjected to detailed consideration by the Court of Criminal Appeal (274 L32) and, as will appear, His Honour effectively decided the question in the way contended for by Mrs Richards for the respondent. This was obviously the view of Thomas J who, in his reasons, then substantially agreed with the reasons of Williams J on various issues which decided the outcome of the appeal, although Thomas J did not agree as to interpretation of s.127(1). His Honour said at 272-3 that "It is necessary to construe the words of s.127(1)" and went on to conclude that a mere offer to corrupt was sufficient and that no concluded bilateral agreement or understanding was necessary.
The remarks by Thomas J at 273 L25-50 require clarification. At L33-35 His Honour said "It is enough that the person making the offer and the putative witness understand that he is to be called". Also, after referring to the appellant's submission that "There needs to be a positive understanding that when giving evidence he will withhold the truth", His Honour said "An agreement for corrupt consideration not to take the stand amply satisfies the requirements of an agreement that true testimony be withheld" (emphasis added). These remarks might suggest that an understanding between the offeror and the putative witness was necessary. However, in view of His Honour's comments at 273 L22-24, those remarks should not be taken literally but must be taken to refer only to the original offer to enter into or to obtain an agreement or understanding. My reasons, in substance, agreed with the approach by Williams J and not that of Thomas J on this particular aspect namely that an agreement or understanding of some sort (or consensus or meeting of minds) was necessary before an offence under s.127(1)(a) was capable of arising at all, that agreement or understanding being directed to one or more of the consequences prescribed. Both judgments proceeded on that basis.
The mere fact that there was evidence which if accepted was capable of showing a concluded agreement or understanding of some kind between the accused and the witness is far from indicative that any comments by Williams J concerning the requirement of a relevant concluded agreement or understanding were mere asides in passing. The need for any agreement or understanding at all was debated. Whilst his Honour at 278 set out two allegations raised by the appellant on the appeal, it is clear from his Honour's reasons in several passages throughout his considerations of those allegations, to which Mrs Richards referred, that his Honour had the point firmly in mind. With respect, I do not agree that His Honour's remarks should be limited in the way suggested by Pincus JA. At 279 Williams J ruled (correctly in my respectful opinion) that the category of persons who may be corrupted as a witness must be broadened so that it covers those involved at an earlier stage in the process than at the stage when a witness has been called to be sworn when it would usually be too late for a person so minded to corrupt a witness. At 279 lines 12-23, His Honour said: "The test determining whether or not a person is 'to be called as a witness' cannot be whether
or not that person was subsequently in fact called as a witness. If, as happened here, the accused person pleaded guilty that could hardly absolve a person from criminal responsibility for conduct already completed of corrupting a witness who would have been called if the matter went to trial. The gravamen of the offence is the corrupting of a witness; whether the inducement is effective or not - for any reason - is beside the point. That is the rationale behind all the common law decisions on analogous offences (see e.g. R v Kellett [1976] Q.B. 372), and I cannot see that the provisions of our Criminal Code require any different conclusion." (emphasis added) His Honour was simply saying that it was not necessary, in order to constitute the offence of
corrupting a witness, that the witness, previously corrupted (ie by his acceptance of the offer), should actually give evidence in Court in accordance with the corrupt agreement or understanding. His Honour referred to various examples of where the necessity of actual evidence being subsequently given may be avoided or dispensed with: 278 L35-50. His Honour's reference to the effectiveness of the inducement was limited to its ultimate effect if any on the evidence of the witness in the sense that the witness may not have actually given evidence at a later stage in Court in accordance with any agreement or understanding to which he had previously assented. The comment in no way related to the question of whether the witness had earlier agreed to the proposal.
In broadening the category of persons who may be corrupted, His Honour clearly recognised, even though he did not expressly refer to the word "upon", that an actual corrupting of a witness must necessarily be completed at an earlier stage. It follows that the actual corruption of a witness could not be completed until the witness indicated his acceptance of the offer so that he was corrupted in his mind. In this regard, his Honour said that s.127 was concerned with corruption (ie the "gravamen" of the offence is the corrupting of a witness) and His Honour had regard to the heading to the section "Corruption of Witnesses": 282 L25-30. It was permissible to regard the heading as part of the section: s.14(1) Acts Interpretation Act 1954; R v Burnell [1966] Qd.R. 348 and R v Lockwood; ex Parte Attorney-General [1981] Qd.R. 209, 214.
This approach also accords with the view subsequently taken by me at 293 L42-50 as
follows:
"It is clear that if in return for a benefit offered, an understanding is reached that a proscribed course of conduct would thereafter occur, the witness (and his proposed evidence) has then and there been corrupted at the time of the understanding. It matters not whether the witness in fact later goes to court and gives false testimony (if that was the understanding) but instead gives true testimony. Also he might die in the meantime, the defendant might plead guilty, or the proceedings might be discontinued. So also with an understanding in return for the offer that the proposed witness would withhold true testimony within the meaning of the subsection."
This approach and that of Williams J accorded with the Crown's initial submission above, that s.127(1)(a) struck at the corruption of the witness, not his testimony, and that this was the "gist" of the offence. Thomas J at 273 L30-35 also recognised that based upon the notion that a completed offence had occurred under s.127(1)(a) by the mere offer, it mattered not that the witness was not actually called to give evidence. His Honour said:
"If the proffered agreement or understanding is in relation to a person identified in the agreement or understanding as one who is called or to be called as a witness, the offence may be made out whether or not he is ever actually called or to be called as a witness. It is enough that the person making the offer and the putative witness understand that he is to be called."
In dealing with the second contention on behalf of Danahay, Williams J at 279 lines 43-50 referred to Counsel's submissions that the offence in question was not "satisfied by proof of an offer to a prospective witness to go away with assistance and simply not give evidence", and that s.127(1) required proof "of an understanding that when the person gives evidence, he will withhold the truth". See also to like effect my statement at 292 L41-50 and Thomas J 273 L41-43, "there needs to be a positive understanding that when giving evidence he will withhold the truth", and not that he would not appear at all and so never give evidence.
The submission of counsel for Danahay necessarily involved the point here under consideration and, as indicated, was dealt with by all members of the court. It must be noted that the
trial judge in his summing up to the jury at p. 185 of that record had said:
"The major issues, really, are the other elements of the offence. Firstly, an offer and you must be satisfied that the defendant offered Edwards certain benefits, which are a contract of employment and overseas travel and that the offer of those benefits was upon an understanding. You must be satisfied there was an understanding between the defendant and Edwards and that understanding was in relation to those judicial proceedings against Gibbs that I have referred to." (emphasis added)
As indicated, Thomas J held at 273 L23-25 that this direction was an error against the Crown whose Counsel had finally submitted that an agreement or understanding was probably not necessary. It was against that background which Williams J obviously had in mind that he cited two passages from the summing up at p.280 of his judgment where he referred to an understanding and the understanding which His Honour concluded, contrary to the submissions for the appellant, satisfied the requirements of s.127(1)(a). His Honour continued at 280 lines 25-30:
"I have come to the conclusion that when the passages in the summing up to which I have referred are properly construed (and in my view this is the way they would have been understood by the jury) his Honour was emphasising that the gravamen of the offence was the offering of benefits upon the understanding which he defined." (emphasis added)
This was the understanding between the defendant and the witness to the effect which the trial judge had defined. Williams J made this abundantly clear by his positive comment at 282 L50- 53. After the above passage at 280 L25-30, His Honour then dealt with two Australian cases, including R v Miraz [1986] 84 F.L.R. 273 (Kelly J) which resulted in the final outcome of the appeal.
At 282, after referring to the offence created by s.130 of the Code which is primarily concerned with the use of some coercive force to prevent a witness from attending, which His Honour said might in some circumstances constitute an offence against s.127(2) (s.127(1)(b)) of the Code), he concluded that there was nothing strange about particular conduct constituting an offence against separate sections of the Code, a comment with which I respectfully agree. His Honour then continued at lines 25-40:
"In my view, whilst there is that overlapping, the sections focus on a different aspect of the offender's conduct. Section 130 concentrates on actual prevention of the witness (by whatever means) from attending, whereas s.127 is concerned with (to use the words of the marginal note) corruption of a witness.
Paragraph (1) deals with corruption centred on an 'agreement or understanding' between the offender and the witness, whereas para (2) is concerned with corruption by any other means of inducement passing from the offender to the witness. In other words s.127 makes it an offence to corrupt a witness by entering into an 'agreement or understanding' or by offering an inducement, and the offence is complete whether or not the agreement, understanding or inducement in fact leads to the giving of false testimony or the withholding of true testimony. On the other hand s.130 is limited to the more specific instances of preventing or attempting to prevent the physical attendance of the witness at the proceedings." (emphasis added)
As pointed out during argument in the current matter, s.127(1)(b) makes no reference to an agreement or understanding which clearly is not necessary, but I do not read His Honour's remarks in the above passage as saying that an agreement was necessary to constitute an offence under s.127(1)(b). Clearly those remarks do not. His Honour's reference to "offering an inducement" was directed to inducement of the kind referred to in s.127(1)(b), ie "attempts by other means ... to induce ...", which may be "offered" by an offender and which may fail. This logically provides for means other than by a procured voluntary agreement or understanding in exchange for the giving or the offer or promise to give a benefit. It includes means other than that which is designed to produce a voluntary acceptance of the offer of a benefit. This may be a pointer to the view that s.127(1)(b) is an "attempt" with a significant risk of corrupting the witness involuntarily due to fear or apprehension, whereas s.127(1)(a) requires (voluntary) corruption resulting from a voluntary consensus.
Conduct within s.127(1)(b) includes conduct involving threats of physical or other harm or detriment to the witness or persons close to him as Mrs Richards submitted. It would also include blackmail, threats of mental or economic harm, including threats of defamation proceedings and probably fraudulent inducement as some United States statutes and authorities demonstrate. See also per Williams J at 284 L50-53 where His Honour quoted Stephenson LJ in Kellett, who said that threats and bribery were the means used by offenders in the cases including any pressure by those means or by force, as for example by actually assaulting or detaining a witness. In Danahay, as already indicated, there was evidence of threats of physical and other harm or detriment to the witness or his relatives and friends if he did not agree to the "offer" (276 L45-50, 277 L5-10, 290 L1- 6).
My reference at 290 L30-31 also requires qualification. An offence under s.127(1)(b) could not be committed if the unsuccessful attempt consisted only of what might be termed a "civilised" offer of a benefit in order hopefully to obtain voluntary consensus. In the context of evidence in that case, viz the threats of physical harm or detriment if that was the view the jury might ultimately have come to, this could have resulted in an alternative offence under s.127(1)(b), had it been the subject of a charge.
After referring to offences at common law which fell within the general heading of "Perverting the course of justice", Williams J then made the following critical statement at 282
L50-53:
"In my view the essential element of the offence created by s.127(1) is the corrupt 'agreement or understanding' with the witness with the intent that the witness 'shall give false testimony or withhold true testimony'." (emphasis added)
After referring to the expressions "give false testimony" and "withholding true testimony" and stating that he could not see that a witness has to say anything positive before there can be
withholding of true testimony (which was the substance of the appellant's contentions), His Honour
continued at p.283:
"If that be so, why does not an 'agreement or understanding' that for corrupt consideration a person to be called as a witness will not take the stand amount to an 'agreement or understanding' for corrupt consideration that true testimony be withheld. In my view the essential elements of the offence created by s.127(1) have been established once it is proved that part of the 'agreement or understanding' is that evidence will be withheld whether by the witness not presenting himself at Court or by remaining silent in the witness box.
Such a conclusion is, in my view, strengthened by the consideration (as discussed above) that it is not necessary for the proceeding to reach the stage of the witness being called in order to prove the commission of the offence. As here, the offence may be committed (that is, completed) some significant time prior to the proceeding reaching the stage where the witness is actually called. Against that background an 'agreement or understanding' that true testimony be withheld is sufficient; it is not necessary for the commission of the offence that the specific way in which the evidence is to be withheld be particularised.
Given that there is no binding authority to the contrary I have come to the conclusion that the offence against s.127(1) may be established by an 'agreement or understanding' in terms of which the witness would withhold true testimony by not presenting himself at the judicial proceeding when required.
It follows that the summing up of the learned trial judge was adequate and there was no misdirection; the jury was directed to the critical issue whether or not there was an agreement or understanding directed to one of the specified consequences." (emphasis added)
Even apart from the fact that the Crown had finally submitted that an agreement or understanding was probably not necessary, it is difficult to imagine clearer statements of His Honour's considered views, repeatedly expressed throughout his reasons as to what His Honour regarded as the plain meaning of the subsection. See in particular His Honour's reference to the essential element of the offence at 282 L50 (repeated at 283), the reference to "the critical issue whether or not there was an agreement or understanding" at 283 lines 35-40, the absence of binding authority to the contrary, his two references to the "gravamen of the offence" at 279 L18-19, 280 L29-30, 283 L46-48, and his statement at 282 L30-31 that s.127(1)(a) deals with corruption "centred on an agreement or understanding" between the offender and the witness.
The crux of the case (ie the final outcome that the appeal be dismissed - per Williams J, Thomas J concurring, myself dissenting), depended upon the difference of opinion between Williams J with whom Thomas J agreed and myself on the other hand as to whether "withholding true evidence" as the subsection required, applied to a case where the only offer was that the witness should totally disappear and not give evidence at all: see 292 L50 - 293 L5. To this point, Williams J and myself were ad idem on the need for a concluded agreement or understanding, or actual corruption of the witness as the Crown initially submitted, in respect of which there was evidence capable of showing an agreement or understanding. Williams J (Thomas J agreeing, myself dissenting) then held that Kelly J was wrong in Miraz in holding, under a section identical to s.127(1)(a) viz s.37(a) of the Crimes Act 1914 (Cth), that an attempt to induce a witness not to appear at all could not fall within the strict words of the penal statute ("withhold true testimony"): cf. People v Insogna 281 N.Y.S. 2d 124 (A.D. 1967), which conformed with the approach by Kelly J.
In my respectful opinion His Honour clearly determined the present question and decided that there must (in the view of the jury as the judge expressly directed) be an agreement or understanding ie a consensus of some kind directed to one of the consequences prescribed in order to constitute an offence against s.127(1)(a). My decision at 290, 293 is to the same effect. The view was taken that this was in context, the plain meaning of the subsection. Thomas J's view was to the contrary (272-3). The question is whether the decision of the majority in Danahay is correct and should now be departed from.
COMPARABLE PROVISIONS
Section 127 forms part of Chapter 16 of the Code "Offences relating to the Administration of Justice". It is headed "Corruption of Witnesses". It has been copied in identical terms in the Western Australia Criminal Code Act 1913 s.130, also in the Commonwealth Crimes Act 1914 s.37, as well as in the Northern Territory Criminal Code s.109. In the New Guinea Criminal Code [1974] s.123, the section has been copied except that in lieu of the words "upon any agreement or understanding", the words "on any agreement or understanding" appear. It may be noted that s.98 of the Tasmanian Criminal Code Act 1924 provides:
"Any person who -
(a)solicits, receives, or obtains, or agrees to receive or obtain, any property or benefit of any kind for himself or any other person, in consideration for any agreement or understanding that any person shall as a witness in any judicial proceeding give false evidence; or
(b)gives, confers, or procures, or offers to give, confer, procure, or attempt to procure, any property or benefit of any kind to, upon, or for any person, as a consideration for any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false evidence,
is guilty of a crime.
Charge -
Under (a): corruption with regard to witness.
Under (b): corrupting a witness."
Apart from such cases as R v Russell [1932] QWN 37 and R v Miraz (1986) 84 FLR 273 referred to in the judgment of Williams J in Danahay, which did not deal with the current point, the only decision referred to the court in the current matter is that of R v Watt (1996) 105 NTR 54, a decision of Angel J, who, in stating his opinion for the benefit of the Northern Territory Court of Criminal Appeal, adopted the approach of Thomas J in Danahay.
The apparent dearth of Australian authority is entirely different to the situation existing in the United States of America, from where s.127 was primarily derived and where there is a wealth of authority bearing upon this precise question. Indeed, in People v Weitzel 255 p. 792 794 (Cal. 1927), the Supreme Court of California (the court of last resort in that State), consisting of seven judges all concurring, said that, on associated legislation, "the authorities are so numerous and so uniform that one is rather embarrassed by the wealth than by the dearth of them". Kirby P (as His Honour then was) said in another context in Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 at 22, that whilst relatively few authorities on the point there under consideration were available in Australia, their number in the United States in America was legion. At 24 His Honour said:
"The authorities on this subject in the United States of America are not, of course, concerned to distinguish English judicial dicta any more than we are. In my respectful view it is erroneous now to confine attention to English authority: Cook v Cook (1986) 162 CLR 376 at 381. English court decisions have no more legal weight than other foreign decisions of common law countries. Like those decisions English Authority provides comparative law material for our assistance. This court should avoid chauvinistic and provincial attitudes to the learning of other common law jurisdictions. Particularly should it do so where the law of contract is involved and has been developed by courts in the largest and most important economy in the common law world (the United States of America)."
So also with the crimes of bribery and corruption. Such relevant authorities at least have strongly persuasive, if not binding, authority on the question at issue and particularly from influential courts of last resort such as the New York Court of Appeals (seven judges) and the Californian Supreme Court (usually, but not always, seven judges). Indeed, as long ago as 1932 in his celebrated speech in Donoghue v Stevenson [1932] A.C. 562 at 598, Lord Atkin said:
"It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by lawyers of the Courts of the United States. In that country I find that the law appears to be well established in the sense in which I have indicated. The mouse had emerged from the ginger-bottle in the United States before it appeared in Scotland, but there it brought a liability upon the manufacturer. I must not in this long judgment do more than refer to the illuminating judgment of Cardoza J in MacPherson v Buick Motor Co in the New York Court of Appeals: 217 N.Y. 382, in which he states the principles of the law as I should desire to state them, and reviews the authorities in other States than his own."
Some of the United States authorities will subsequently be referred to.
HISTORY
Prior to the code coming into operation on 1st January 1901, there appears to have been no statutory provisions approaching the equivalent of Chapter 16. See Digest of the Statutory Criminal Law in Force in Queensland on 1st Day of January 1896 prepared by Sir Samuel Griffith, Chief Justice of Queensland, as the first step towards drafting the Code. That Digest showed few offences dealing with corruption. Article 87 dealt with perjury. Article 88 dealt with corruption by a juror and article 89 dealt with the old common law offence of embracery. Apparently the common law applied to offences involving the perversion of the course of justice: see Halsbury's Laws of England 4th ed. Vol.11 paras.955 and following.
Whilst it has been held that it is inappropriate to refer to comments of Sir Samuel Griffith in his lengthy letter dated 29th October 1897 (which accompanied his Draft of a Code of Criminal Law for Queensland) for the purpose of interpreting the meaning of the statute: R v Martyr [1960] QDR 389; R v Burnell (supra), it is not inappropriate to refer to those remarks in an endeavour to discern the problems which the draftsman perceived and which were intended to be overcome by an introduction of the Code. They have been perused. In any event, some of those comments appear in the Queensland Parliamentary Debates, vol.LXXXII 1899, by the then Attorney-General during the second reading of the Criminal Code Bill. At 106 he said:
"Certainly it has long been felt in Great Britain, and for the purpose of making the necessary provision for the establishment of a code a Royal Commission, consisting of eminent judges, was appointed in England about the year 1878, and the result of their labours was embodied in a Bill, which was fully considered, and largely availed of, by the learned draftsman who framed the measure now in the hands of hon. members. Italy has a code enacted in 1888, which is considered to be in many respects the most complete and perfect penal code in existence. From this measure, as well as from the penal code of the State of New York, Sir Samuel Griffith frankly acknowledges he derived in the course of his great labours very valuable assistance".
In Chapter 3 of the Italian code, "corruption" was dealt with. The reference there is to a "public official", who by Chapter 12 s.207, was defined as consisting of jurors, arbitrators, experts, interpreters, witnesses and others during the period in which they are called upon to exercise their function. It is apparent from Chapter 3 of that Code that corruption there dealt with involved the actual corruption of a witness by his involvement in the proscribed conduct. See eg ss.172, 173. This obviously involved assent of some kind. By s.173, it is further expressly provided that where the public official has not committed the crime the person who endeavoured to induce him to commit it is liable to one half of the punishment involved where actual corruption is achieved. Section 61 deals with attempts generally, in terms substantially similar to s.4 of the Queensland Code.
The Royal Commission referred to, consisting of Lord Blackburn, Mr Justice Barry (of Ireland), Mr Justice Lush, and Sir James Fitzjames Stephen, tabled its lengthy report in 1879 and explained (inter alia) the difficulties with some common law offences which at that time also applied in Queensland. It recommended a composite code which resulted in a draft Bill introduced into the House of Commons in 1880. It did not become law. Nonetheless, Griffith CJ noted various sections of that Bill in the side notes to his draft Criminal Code. Some of them appear throughout Chapter 16 of the draft Code. Chapter 16 of the Draft Code with insignificant changes, became Chapter 16 of the Queensland Code but the heading was changed from "Bribery of Witnesses" in the Draft to "Corruption of Witnesses" in the Code.
The draft Bill of 1880 was wholly adopted in New Zealand in the Criminal Code 1893 with minor alterations. Section 121 (repeated in s.117 of the New Zealand Crimes Act of 1961 with an
increase in the penalty), provided as follows:
"Everyone is liable to two year's imprisonment with hard labour who -
(1)dissuades or attempts to dissuade any person, by threats, bribes, or other corrupt means,
from giving evidence in any cause or matter, civil or criminal; or
(2)influences or attempts to influence, by threats or bribes or other corrupt means, any juryman in his conduct as such, whether such person has been sworn as a juryman or not; or
(3)accepts any such bribe or other corrupt consideration to abstain from giving evidence, or
on account of his conduct as a juryman; or
(4)wilfully attempts in any other way to obstruct pervert or defeat the course of justice."
(emphasis added).
Section 121(3) was limited to "accepting" a bribe and did not include any of the other enlarged provisions such as those in s.127(1)(c) or in certain United States codes, such as "asking, accepting, or agreeing to accept, or attempts ..." to do so. Section 108 of the New Zealand Criminal Code of 1893 which dealt with judicial corruption (which derived from the Bill of 1880 s.111), is more akin to s.120 of the Code.
The expression "attempts" appeared in s.121(1), (2). Section 121 (1) provides for an actual or attempted dissuasion by a threat or bribe or other corrupt means. Section 121(4), which provided for "attempts in any other way ...", embodied s.128 of the Bill of 1880 "Attempting to Pervert Justice", which provided for "attempts in any way ...". Section 121(4) means in ways other than by the three methods in s.121(1), (2), and (3). This provision is somewhat similar to s.140 of the Queensland Code with some modifications. Attempts to commit offences generally, were provided for by s.74 of the Bill of 1880. Likewise attempts were dealt with in s.76 of the Criminal Code of New Zealand of 1893 (now s.72 of the Crimes Act 1961) which is broadly the equivalent of s.4 of the Code. Section 121(4), as well as the nature of common law offences, was dealt with in R v Gray (1903) 23 N.Z.L.R. 52 where it was held that an attempt to induce a person to give untrue evidence was held to fall within s.121(4) and not under any other provision. This was the position at common law: Halsbury's Laws of England 4th ed. Vol.11 para.956-6. The absence of such a statutory provision in some early United States statutes had also resulted in no offence of an unaccepted attempt to bribe, which suggests that the draftsman of the Code ensured that there was no such oversight in Queensland, hence s.140 as a residual catchall.
Of considerable significance are certain sections of the Penal Code of the State of New York (1881). Various sections thereof are side-noted to the draft Queensland Code and in particular to provisions of Chapter 16. §113 of the Penal Code is side-noted to s.127. §113 provides as follows: "Bribing witnesses:- A person who gives or offers or promises to give, to any witness or
person about to be called as a witness, any bribe, upon any understanding or agreement that the testimony of such witness shall be thereby influenced, or who attempts by any other means fraudulently to induce any witness to give false testimony or to withhold true testimony, is guilty of a felony."
That section, Bribing witnesses, forms part of Chapter 6 of that Code headed "Falsifying Evidence". It may be compared with s.127(1)(a) of the Queensland Code. Apart from the additional options in the Queensland Code ("confers", "procures", and "promises or offers to give or confer or to procure or attempt to procure"), the first part of §113 is fairly close to s.127(1)(a) in respects relevant to this reference. It used the wide term "influenced". The second part of §113 is in part akin to but not as wide as s.127(1)(b) of the Queensland Code, although that part of §113 and s.127(1)(b) both refer to "attempts" whereas the first part of §113, like s.127(1)(a), does not specifically refer to "attempts". §113 and s.127(1)(a) of the Code deal with the case where someone, other than the witness is the motivator. Hence the heading "Bribing witnesses".
Of significance also is §80 which forms part of a separate Chapter 1, "Bribery and Corruption". All of the foregoing provisions are part of what is called Title VIII "Of Crimes Against
Public Justice". §80 reads as follows:
"Bribery of witnesses:- A person who is, or is about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorised to hear evidence or take testimony, who receives, or agrees or offers to receive, a bribe, upon any agreement or understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial, hearing, or other proceeding, is guilty of a felony."
This section deals with the witness as the motivator, hence the title "Bribery of witnesses". §80 may be compared with s.127(1)(c) of the Queensland Code with which it is substantially similar although the latter provision includes the words "asks" and "obtains". Importantly, s.127(1)(c) also includes the words "or attempts to receive or obtain" in lieu of the words in §80 "offers to receive" which are similar to the equivalent words in §113, and s.127(1)(a) of the Code, i.e. "offers to give ..." and not "attempts to give ...".
Other provisions throughout Title VIII of the New York Code of 1881 use the expression "upon any agreement or understanding" and deal with a range of offences involving judicial officers, jurors, arbitrators or referees, public officers and police. Some of those sections are similar to or are at least of similar import to some provisions of Chapter 16 of the Queensland Code. See e.g. §125 and s.133. §71 deals with bribery of a judicial officer, and uses opening words similar to that in s.127(1)(a) but with the important words "with intent to influence his action, vote, opinion ...". §72 deals with such an officer accepting bribes and uses similar terminology to that in s.127(1)(c) (with variations) but with the words "upon any agreement or understanding that his vote, ...". §71 therefore differs from s.120 of the Code, which uses the expression "on account of anything already done or ...". The words "with intent to ... " used in the New York Code point only to the state of mind of the offeror. Such words appear in s.128 of the Queensland Code. Other provisions in the New York Code have their counterpart in the Queensland Code eg §111 - preventing or dissuading witnesses from attending (closely similar to s.130 of the Code).
It was held that an understanding or agreement between the offeror and the witness was essential and that the crime was incomplete if there was a failure to procure the necessary agreement or understanding. The conviction was reversed. The court also referred to what were said to be "apparently" contradictory interpretations under some related statutes where the sections were not quite the same: Squires, Kerns, Brigham. (They were bribe seeking officers.) It was said that if the result produced was absurd, it was a matter for the legislature, for the statute must be interpreted as it was found. That case also directly supports the respondent's submission.
In State v Emmanuel 253 P. 2d 386 (Wash. 1953), the Supreme Court of Washington (five judges concurring) dealt with a crime of asking or receiving a bribe and re-affirmed that while the crime of offering a bribe requires proof of an "agreement or understanding", the crime of asking a bribe requires no proof of such agreement or understanding between the persons involved. The court confirmed the decision in Benson and referred to the different meaning attributed to the words "agreement or understanding" when the crime charged is of asking or receiving a bribe. At 390 the court said:
"The distinction which our court has thus drawn between the meaning to be given the words 'agreement or understanding', as used in the two kinds of statutes which have been referred to, is consistent with the rule prevailing in other states."
Many cases were cited, including some of the foregoing.
In People v Insogna 281 N.Y.S. 2d 124 (A.D. 1967), the Supreme Court of New York, Appellate Division, (five judges concurring) dealt with §2440 of the consolidated New York Penal
Code of 1909 (the forerunner was §113 of the 1881 Code side-noted to s.127 of the Draft Code for
Queensland). Headnote 1 reads:
"Statute making it a felony to give, offer, or promise to give to any witness or person about to be called as a witness any bribe, upon any understanding or agreement that testimony of such witness shall be thereby influenced, or to attempt to fraudulently induce any witness to give false testimony or to withhold true testimony, does not make it criminal to induce a person to absent himself and thus not become a witness. Penal Law §2440."
The defendant was charged with giving and promising to give a bribe to a proposed witness upon the understanding that the witness would withhold true testimony. The court at 127 said the count should have been dismissed because the section did not make it criminal to induce a person to absent himself and thus not become a witness at all, and adopted what was said by that court in People v Maynard 151 App. Div. 790, 791, 137 N.Y.S. 19, 20. At 127 the court continued:
"In People v Kathan, 136 App. Div. 303, 307, 120 N.Y.S. 1096, 1099, an attorney was accused of bribing a key prosecution witness to withhold testimony against his client. There attorney admitted payment but claimed it was paid as restitution in the pick-pocketing case against his client. The court reversed the conviction and pointed out that the corpus delicti is not the payment of money, 'but the agreement or understanding under which it was given; the intent ... in making the payment ... ' and held that the sufficiency of the evidence of corroboration is a question of law for the court." (emphasis added)
That case adopted the approach of Kelly J in Miraz which was distinguished in Danahay. Also it may be noted that shortly thereafter, §215 of the New York Penal Code of 1965 was amended in the terms already set out, but added a provision to overcome the effect of that judgment. After the words "upon an agreement or understanding that (a) the testimony of such witness will thereby be influenced", the words were added - "or (b) such witness will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding". A provision of that kind is obviously superior to the present Queensland section.
In Fox 467 P. 2d 1022 (Nev. 1970), the Supreme Court of Nevada (five judges concurring) dealt with §199.240 of the relevant statute which again was broadly the equivalent of §137 of the Californian Penal Code already set out above in McAllister. The defendant offered a witness $500 upon the understanding that the witness would leave town before a preliminary hearing took place. The witness gave evidence that he agreed to take that sum and do what was required, but the money was never handed over because payment was to take place subsequently. In the meantime the offence came to light and the defendant was charged. At 1023 the court said:
"NRS199.240 requires an agreement or understanding between the giver of the bribe and the receiver. If the giver makes an offer and he reasonably believes that the receiver has accepted, then there is an 'understanding' between the parties. Ex parte Jang 25 Cal. App. 2d 529, 78 P.2d 250 (1938); People v Schultz 18 Cal. App. 2d 485, 64 P. 2d 440 (1937); People v McAllister 99 Cal. App. 37, 277 P. 1082 (1929); State v Ferraro 67 Ariz. 397, 198 P. 2d, 120 (1948)."
There was clear evidence of acceptance by the proposed witness which rendered the offence
complete. Otherwise, according to the court, the offence would be one only of attempted bribery.
In People v Charles 462 N.E. 2d 118 (N.Y. 1984), the Court of Appeals of New York (seven judges concurring) dealt with the crime of bribe receiving pursuant to §200.10 of the Penal Law of
1965. That provision is as follows:
"A public servant is guilty of bribe receiving in the second degree when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that his vote, opinion, judgment, action, decision or exercise of discretion as a public servant will thereby be influenced"
The court continued:
"The proof necessary to establish the crime must show, at a minimum, that a public servant solicited or agreed to accept a benefit from another person upon an agreement or understanding that his action as a public servant would thereby be influenced. The statute requires no act beyond the agreement or understanding ... ". (emphasis added)
That section is somewhat similar to §215.05 of that Code (bribe receiving by a witness)
which, as indicated is nearly identical to §80 of the 1881 Code taken into account by Griffith CJ.
In People v Levine 448 N.Y.S. 2d 30 (A.D. 1982), the Supreme Court of New York, Appellate Division, dealt with §215.00 of the Penal Code of 1965. A charge of bribing a witness
was dismissed by the trial judge which the Supreme Court reversed. §215.00 is repeated here for
convenience:
"A person is guilty of bribing a witness when he confers, or offers or agrees to confer, any benefit upon a witness or a person about to be called as a witness in any action or proceeding upon an agreement or understanding that (a) the testimony of such witness will thereby be influenced, or (b) such witness will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding."
As indicated, that section is very similar to §113 of the Penal Code of 1881, referred to by Griffith CJ in the side note to s.127 of his Draft Code, but it did not have the amendment (b). §113 of the 1881 Code used such expressions as "to induce any witness to give false testimony or to withhold true testimony". The latter words (to give false testimony or to withhold true testimony) still appear in s.127 of the Queensland Code. At 30 the court (all five judges concurring) said:
"The corpus delicti of the crime of bribing a witness is the agreement or understanding that a benefit will influence testimony (People v Kathan 136 App. Div. 303, 120 N.Y.S. 1096; see People v Insogna, 28 A.D. 2d 771, 281 N.Y.S. 2d 124; People v Plummer 44 A.D. 2d 573, 353 N.Y.S. 2d 51). In this case the People have established prima facie the existence of such an agreement and proof before the Grand Jury was sufficient to sustain the third count of the indictment." (emphasis added)
That case is directly on point and further supports the respondent's interpretation of
s.127(1)(a).
In People v Shaffer 515 N.Y.S. 2d 470 (A.D. May 21, 1987), the New York Supreme Court, Appellate Division (five judges), was concerned with whether or not the benefit agreed upon was actually conferred and not with the question of the necessity of a concluded agreement or understanding which was nevertheless implicitly recognised. The charge was under §215.00, that the defendant offered or agreed to confer $2,000 upon a witness upon an agreement or understanding that the witness would give false evidence. The trial judge dismissed the charge which was reversed on appeal and held to be sufficient to go to trial, even though there was no evidence that the money was paid over or that the witness in fact gave false evidence. It was in that context that the court said at 471:
"... all that is required for bribery of a witness to be complete is the offer or agreement to confer a benefit upon the defendant's agreement or understanding that the testimony will thereby be influenced; there is no requirement that the benefit actually be conferred or that the testimony actually be influenced."
That the decision was limited to the concluding remarks was made clear by the higher court of last resort, the Court of Appeals, in a subsequent case of People v Harper 52 N.E. 2d 148 (N.Y. 1990).
In People v Kramer 518 N.Y.S. 2d 188 (A.D. July 27, 1987), the Supreme Court, Appellate Division, (five judges concurring) again dealt with a charge under §215.00. At 191, the court said: "With respect to the bribery counts, however, the evidence was legally insufficient to
establish that the benefit conferred upon the former clients (ie providing them with attorneys), was based upon an agreement or understanding that their testimony would thereby be influenced (see Penal Law §215.00). To the contrary, the witnesses testified they were never told they had to testify a certain way in order to receive the money for the attorneys' fee and the one attorney who testified at trial specifically stated he merely told the witness to tell the truth, and never discussed her testimony with the defendant."
The Supreme Court held that the conviction for bribery could not be supported, which clearly indicates that it was necessary to prove a concluded agreement or understanding between the offeror and the witness. That decision was not questioned in the Court of Appeals (seven judges concurring) 72 N.Y. 2d 1003 (N.Y. 1988). The case also supports the respondent's contention.
In People of the State of New York v Alvino 519 N.E. 2d 808 (N.Y. 1987), the Court of Appeals of New York (seven judges all concurring in essential respects - three dissenting only on the question of admissibility of similar fact evidence), dealt with an offence of bribe receiving by a public servant pursuant to §200. It is similar to §215.05 (bribe receiving by a witness). At 814 the court said:
"Before a public servant may be convicted of bribe receiving, second degree, there must be proof of a corrupt agreement. The People must establish that defendant solicited, accepted, or agreed to accept a benefit 'upon an agreement or understanding' that his conduct would be influenced by the benefit (Penal Law former §200.10; see also People v Charles 61 N.Y. 2d 321, 473 N.Y.S. 2d 941, 462 N.E. 2d 118). Thus it was not enough for the People to prove defendant issued a false certificate to Falto and that he received $100 from him. The essence of the crime was not the issuing of the license or the receipt of the money; it was the doing of one in exchange for the other. Thus, defendant's mental state was directly in issue because the People had to establish that defendant knew at the time he issued the license that he was doing so in exchange for a bribe ... Thus, unless the People proved a corrupt bargain existing at the time the defendant issued the false certificate to Falto, he could be guilty at most of receiving a reward in violation of §200.25." (emphasis added)
That section is also similar in certain respects to s.127(1)(c) of the Queensland Code.
In People of the State of New York v Harper 552 N.E. 2d 148 (N.Y. 1990), the Court of Appeals of New York (six judges) (Alexander J taking no part) again dealt with the offence of bribe receiving under §215.05. At 150 the court said:
"Penal Law §215.05 provides that:
'A witness ... is guilty of bribe receiving by a witness when he solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that (a) his testimony will be influenced, or (b) he will absent himself from, or otherwise avoid or seek to avoid appearing or testifying at, such action or proceeding.'
The gist of the crime is not the payment of money, but rather the 'agreement or understanding' under which a witness accepts or agrees to accept a benefit (see People v Arcadi, 79 A.D. 2d 845, 846, 434 N.Y.S. 2d 507; affd 54 N.Y. 2d 981, 446 N.Y.S. 2d 39, 430 N.E. 2d 915; see also, Penal Law §10.00[17]). Consequently, all that is required for the completed crime is that a witness solicit, accept, or agree to accept a benefit in exchange for a promise either that his testimony will be affected or that he will absent himself from or otherwise avoid appearing at the action or proceeding. There is no requirement that the benefit actually be conferred, that the testimony actually be influenced, or that the witness actually absent himself (see People v Shaffer 130 A.D. 2d 431, 432-433, 515 N.Y.S. 2d 470)." (emphasis added)
The Court of Appeals affirmed the Appellate Division which had reversed a verdict of guilty of bribe receiving. The issue before the court was whether an unlawful agreement to alter one's testimony or avoid appearing at an action or proceeding may fairly be inferred from a 'release' agreement in which one party agreed to 'drop' criminal and civil charges in exchange for money and other valuable consideration. It was held that such purported 'release' was, without more, legally insufficient to establish the elements of the crime.
Those authorities make it clear that for an offence of the type equivalent to that in s.127(1)(a) of the Queensland Code including that of offering a benefit to a witness, and where the words "upon an agreement or understanding" are used, there must in fact be evidence of a concluded agreement or bargain or a meeting of minds. The cases also make it clear that no meeting of the minds is necessary for offences which are broadly the equivalent of that in s.127(1)(b), which appears from the terms of the section itself. It provides for "an attempt" and includes an unsuccessful attempt by means other than by the voluntary acceptance by the witness of the bribe or offer of it.
There were earlier some differences of opinion on the meaning of sections which are broadly equivalent to s.127(1)(c) or offences which are described as "bribe receiving". Some early authorities held that no agreement was necessary and some held to the contrary, depending upon the particular statute and the way the charge was framed although the New York Court of Appeals has unequivocally held that for the purposes of §215.05, an agreement or understanding is necessary between the offeror (witness) and the person approached. An attempt is not provided for in §215.05 as it is in s.127(1)(c) of the Code, although "solicits" is included.
Various courts have also drawn a distinction between the requirements of the two provisions but none of those decisions in any way affects the unanimous authorities throughout the United States dealing with provisions equivalent to s.127(1)(a). No offence is complete under any of the options advanced unless there is an acceptance or a concluded agreement or understanding or meeting of minds between the offeror and the witness. Those decisions, particularly of the Court of Appeals of New York, and other appellate divisions of the New York Supreme Court, as well as other significant decisions such as Benson, Jang, Ferraro, and many others, in my respectful opinion, amply support the construction arrived at by the majority in Danahay as outlined above.
IS THERE A DOUBT?
In my opinion, there is not. However, if the interpretation abovementioned is not correct, then considering the argument in Danahay and on this reference, as well as the various authorities referred to, it must at least be said that there is a significant doubt as to the true meaning of s.127(1)(a) in the terms referred to in the reference. If that is the case, this would be an appropriate matter for the old rule of interpretation expounded by Lord Esher in Tuck v Priester (1887) 19 QBD 629 at 638:
"If there is a reasonable interpretation which will avoid the penalty in any particular case we
must adopt that construction. If there are two reasonable constructions we must give
the more lenient one. That is the settled rule for the construction of penal sections."
The most frequently quoted statement is that of Gibbs J in Beckwith v R. (1976) 12 ALR 336
at 339 who cited the rule as the rule of last resort. Nevertheless it is capable of application:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has
lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... The rule is perhaps one of last resort."
CONCLUSION
1.For an offence to be completed under s.127(1)(a) by the offer of a benefit, there must be an agreement or understanding or a meeting of minds of some kind before an offence is committed. I adhere to the view expressed in Danahay, supported as it is by authorities in the United States of America whence this section originated.
2.An unsuccessful offer (or attempt) of a benefit is caught by s.140 (and probably not by s.4). It is not "specially defined" in s.127(1)(a) within the meaning of s.140.
3.An attempt under s.127(1)(b) is a discrete offence and supports the above interpretation of s.127(1)(a), for reasons mentioned above. It does not require any form of agreement or assent as does s.127(1)(a), and attracts a penalty as serious as those under s.127(1)(a) and s.127(1)(c) because of the more serious conduct and the grave risk involved of involuntary corruption which may flow from such conduct.
4.An unsuccessful attempt under s.127(1)(c) or unsuccessful asking, constitute discrete offences, equal in gravity to any of the other options available under that subsection, some of which probably require a concluded agreement.
5.If the above interpretation is not in accord with contemporary notions (and I do not suggest that it is not) then this is a matter for the Parliament. Indeed, some of the wording of the current sections of the New York Penal Code of 1965 and in particular §215.00 and §215.05 have obvious advantages over the provisions of s.127(1)(a) and s.127(1)(c). Such provisions would have overcome some of the arguments in Danahay, on which the appeal was ultimately determined, as well as in Miraz and People v Insogna.
6.The question posed by the Attorney-General should be answered "yes".
prospective “agreement or understanding” might all be different.
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