R v Gould (No 2)

[2019] NSWDC 689

District Court

New South Wales

Medium Neutral Citation:	R v Gould (No 2) [2019] NSWDC 689
Hearing dates:	28 October 2019
Date of orders:	28 October 2019
Decision date:	28 October 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [1]-[2]
Catchwords:	CRIMINAL LAW – elements of offence – attempt to pervert the course of justice
Legislation Cited:	Crimes Act 1900 (NSW) s 319 Crimes Act 1914 (Cth) s 43
Cases Cited:	Johnston v R [2019] NSWCCA 108 Murphy v The Queen (1985) 158 CLR 596 R v Charles (NSWCCA unreported 23 March 1998) R v Murphy (1985) 4 NSWLR 42 R v Selvage [1982] QB 372 The Queen v Vreones [1891] 1 QB 360
Texts Cited:	None
Category:	Procedural and other rulings
Parties:	Regina (Crown) Vanda Gould (Accused)
Representation:	Counsel: J Single SC, T Epstein and M Rabsch (Crown) C Smith SC and W de Mars (Accused)   Solicitors: Commonwealth Director of Public Prosecutions (Crown) Webb Henderson (Accused)
File Number(s):	2016/00278181
Publication restriction:	Publication restricted pending the completion of the trial

Ruling

1. On 28 October 2019, I made the following ruling on the question of the elements of the offence under s43 of the Crimes Act 1914 (Cth). Namely, that the elements are that:

1. the Accused attempted to pervert the course of justice in relation to a judicial power;

2. the Accused intended to pervert the course of justice in relation to a judicial power; and

3. the judicial power is the judicial power of the Commonwealth.

Findings

2. I find that:

1. tendency to pervert the course of justice is not an essential element of an offence under s43;

2. whether a particular act has a tendency to pervert the course of justice is, however, a matter which may be relevant to the element of intention in considering the act or acts relied upon as the attempt(s);

3. adopting the approach in R v Murphy (1985) 4 NSWLR 42 at 50, in providing a direction or description of the element of attempt, it is appropriate to say that conduct will amount to an attempt if it has a tendency to fulfil the guilty intention, that is to say if it is a step directed to or aimed at fulfilling that intention.

Reasons

3. The starting point is to identify the elements, so far as they appear to arise from the offence provision. Here, s43 provides as follows:

Attempting to pervert justice

(1) A person commits an offence if:

(a) the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and

(b) the judicial power is the judicial power of the Commonwealth.

(2) Absolute liability applies to the paragraph (1)(b) element of the offence.

(3) For the person to be guilty of an offence against subsection (1), the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(4) A person may…