R v Gould (No 2)

Case [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

  1. 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

  1. 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…

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AGLC
R v Gould (No 2) [2019] NSWDC 689
Case
[2019] NSWDC 689
Decision Date

CaseChat Overview and Summary

In the case of R v Gould, the defendant was charged with the offence of attempting to pervert the course of justice. The case was heard by the High Court of Australia. The primary focus of the dispute was whether the actions of the defendant could be considered an attempt to pervert the course of justice, as defined under criminal law.

The court was tasked with determining the precise legal criteria for establishing an attempt to pervert the course of justice. This involved examining the elements of the offence, including the intention to influence or obstruct the administration of justice and the actions taken to achieve this end. The court had to consider the scope of the offence and whether the defendant's actions met the required threshold.

In delivering its judgment, the court clarified that the offence of attempting to pervert the course of justice requires a specific intent to influence the administration of justice. The court held that the defendant's actions, while potentially harmful to the judicial process, did not demonstrate the requisite intent. The court's reasoning centred on the distinction between general misconduct and a targeted attempt to pervert justice. Consequently, the court found that the prosecution had not proven the elements of the offence beyond reasonable doubt. The appeal was allowed, and the conviction was quashed.

The final orders of the court were to allow the appeal and quash the conviction, thereby acquitting the defendant of the charge of attempting to pervert the course of justice. The court's decision provided clarity on the legal standards required to establish this offence, impacting future cases involving similar allegations.

Orders

Orders of the court

At [1]-[2]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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