R v Hamnett

[2018] SASCFC 108

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HAMNETT

[2018] SASCFC 108

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)

22 October 2018

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSTRUCTION, PARTICULAR CLASSES OF STATUTE - PENAL STATUTES

The appellant pleaded guilty in the District Court to two counts of attempting to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The appellant appealed his conviction and sentence.

Permission was granted to appeal the conviction on the ground that upon the admitted facts the appellant could not in law have been convicted of the charges.  On the hearing of the appeal the Court allowed the appeal and ordered that the convictions be set aside and the matter remitted to the District Court for a new trial.

Held (by the Court):

1. Section 244(3) of the Criminal Law Consolidation Act 1935 does not extend to prohibiting a person from dissuading, or attempting to dissuade, another person from giving truthful evidence, whether by commission or omission.

2. A miscarriage of justice has occurred because, upon the admitted facts, the appellant could not in law have been convicted of a contravention of s 244(3).

Criminal Law Consolidation Act 1935 (SA) 242, 244, 246, 256, 352 (repealed), referred to.
Beckwith v R (1976) 135 CLR 569; R v Lavender (2005) 222 CLR 67; R v Caruso (1988) 49 SASR 465; R v Forde [1923] 2 KB 400, discussed.
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Krakouer v R (1998) 194 CLR 202; Meissner v The Queen (1995) 184 CLR 132; R v Pugh [2005] SASC 427; Berti v Police (No 2) [2014] SASC 188, considered.

R v HAMNETT
[2018] SASCFC 108

Court of Criminal Appeal:  Kourakis CJ, Stanley and Lovell JJ

THE COURT:

Introduction

1. The appellant pleaded guilty in the District Court to two counts of attempting to prevent or dissuade a witness from attending at judicial proceedings contrary to s 244(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). He was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to two years, one month and two weeks’ imprisonment, reduced from a starting point of three years’ imprisonment. A non-parole period of 18 months was imposed. The sentence and the non-parole period commenced on 6 April 2017.

2. The appellant appealed his conviction and sentence. 

3. Permission was granted to appeal the conviction on the ground that upon the admitted facts the appellant could not in law have been convicted of the charges.  Permission to appeal against sentence was granted on the ground that it is manifestly excessive. 

4. On the hearing of the appeal the Court allowed the appeal and ordered that the convictions be set aside and the matter remitted to the District Court for a new trial.  These are our reasons for making those orders. 

   Factual circumstances of the offending

5. On 5 April 2017 the appellant was arrested after an incident involving his partner at her place of residence.  Following his arrest he was interviewed by police during the course of which he was informed that he was under arrest for charges of assault and property damage.  The following day an Information was laid in the Magistrates Court charging the appellant with aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA; assault contrary to s 20(3) of the CLCA; threatening to kill contrary to s 19(1) of the CLCA; and damaging property contrary to s 85(2) of the CLCA.

6. The appellant was remanded in custody.  He has been in custody since that time. 

7. The appellant sent two letters to the complainant from custody.  The letters are dated 9 April 2017 and 12 April 2017.  The sending of those letters constitutes the offending the subject of the appeal.

8. While the Information dates the offences to 6 April 2017 and 19 April 2017, there is no dispute concerning the conduct that constitutes the impugned offences. 

9. The letter of 9 April 2017 from the appellant to the complainant, the subject of count 1, relevantly includes the following:

   Please tell them I done only window and shower and you said I grabbed you only to get me out of there.  Please babe tell them I didn’t grab you and they will drop Assult [sic] and I can see you.  I love you.

   If you tell them I didn’t grab you they will not go ahead with assult and I could see you, I really want to change now 100%, I’m gonna do this.  I want you Leanne so much for the rest of my life, I am so sorry…

   Please tell Prosecution I only broke window and you said the rest so the cops would take me away and I didn’t do anything else…

   Please tell them I only smashed window and you told them I touched you only to get me out of the house.

   If you say you don’t wanna charge me, they will, if you say I didn’t touch you, but broke window then they can’t.  Up to you Hun but please I want and gonna do anythink [sic] to be with you.  You don’t Know how much I do care and Love and Want you.  I am Begging you Leanne.  I never beg cause you are my True Love.  BABY I MISS U DEARLY…

   I know, I didn’t punch you baby did I.  I’m not asking you to do this to get me out of trouble, I’m doing this cause I can will change and I want this one chance to Love care make you happy.

   [Emphasis in original]. 

10. The 12 April 2017 letter from the appellant to the complainant, the subject of count 2, includes the following:

    Please tell them that I only broke window so we can be together cause I mean it Leanne I’m changing for us Hun. 

    Section 244 CLCA

11. Section 244 of the CLCA provides:

    (1) Subject to this section, a person who gives, offers or agrees to give a benefit to another person who is or may be required to be a witness in judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time) or to a third person as a reward or inducement for the other person's—

    (a)     not attending as a witness at, giving evidence at or producing a thing in evidence at the proceedings; or

    (b)     withholding evidence or giving false evidence at the proceedings,

    is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (2) Subject to this section, a person, who is or may be required to be a witness at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time), who seeks, accepts or agrees to accept a benefit (whether for himself or herself or for a third person) as a reward or inducement for—

    (a)     not attending as a witness at, giving evidence at or producing a thing in evidence at the proceedings; or

    (b)     withholding evidence or giving false evidence at the proceedings,

    is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (3) Subject to this section, a person who prevents or dissuades, or attempts to prevent or dissuade, another person from—

    (a)     attending as a witness at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time); or

    (b)     giving evidence at, or producing a thing in evidence at, such proceedings,

    is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (4) A person is not guilty of an offence against subsection (3) unless the person knows that, or is recklessly indifferent as to whether, the other person is or may be required to be a witness or to produce a thing in evidence at the proceedings.

    (5) A person who does an act with the intention of deceiving another person in any way in order to affect the evidence of the other person at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time) is guilty of an offence.

    Maximum penalty: Imprisonment for 10 years.

    (6) A person is not guilty of an offence against this section if there is lawful authority or a reasonable excuse for his or her action.

    Section 256(1) of the CLCA

12. Section 256(1) of the CLCA provides:

    (1) A person who attempts to obstruct or pervert the course of justice or the due administration of the law in a manner not otherwise dealt with in the preceding provisions of this Part is guilty of an offence.

    Maximum penalty: Imprisonment for 4 years.

    Submissions on appeal

13. The appellant submits that a miscarriage of justice occurred as a result of the appellant pleading guilty to two counts of a contravention of s 244(3) in circumstances where the evidence could not constitute a contravention of that provision. The appellant submits that the elements of the charged offence are that the offender prevents or dissuades, or attempts to prevent or dissuade another person from attending as a witness at judicial proceedings or giving evidence at, or producing a thing in evidence at, such proceedings.

14. In this case the Information alleged the appellant prevented or dissuaded, or attempted to prevent or dissuade, the complainant from attending at judicial proceedings by sending the two letters. The appellant submits that on their face the letters do not evince an attempt to prevent or dissuade the complainant from attending at judicial proceedings. The conduct relied upon might constitute offending of a different character but it cannot constitute a contravention of s 244(3). On any assessment of the facts the appellant could not have been found guilty of the offences to which he pleaded guilty. As a result a miscarriage of justice has occurred and the convictions ought to be quashed.

15. The respondent submits that crucially on the prosecution of the appellant for a contravention of s 244(3) it was required to prove that by writing the letters the appellant intentionally sought to dissuade the complainant from attending court to give evidence at judicial proceedings. While the letters did not expressly seek to dissuade the complainant from attending at judicial proceedings, it is implicit in the terms of the letters that the appellant was attempting to persuade the complainant to give prosecuting authorities a false account of the events relevant to the charges so that the charges would be withdrawn and the complainant would not attend at judicial proceedings.

    Section 244 of the CLCA

16. Section 244 is a penal provision imposing criminal liability.  The approach to the construction of penal provisions was considered in Beckwith v R[1] where Gibbs J (as he then was) said:[2]

    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. 

    [1] [1976] HCA 55, (1976) 135 CLR 569.

    [2] [1976] HCA 55, (1976) 135 CLR 569 at 576.

17. In R v Lavender[3] Kirby J considered the contemporary approach to the construction of statutory provisions imposing criminal liability in the following terms:[4]

    [3] [2005] HCA 37, (2005) 222 CLR 67.

    [4] [2005] HCA 37 at [88]-[94], (2005) 222 CLR 67 at 95-97.

    In the past, including in this Court, it has been conventional to say that, where one has been left in real doubt as to the meaning of a penal provision, that provision will be construed strictly and in favour of the person potentially affected by the provision. This rule was originally conceived in the seventeenth century as a means of mitigating the harshness of penal legislation, breach of which often attracted the death penalty. Since that time, the rule has been transplanted and applied in various other legislative contexts, such as legislation purporting to impose taxation, or to interfere with the enjoyment of, or to take away rights to, private property.

    The rule was conventionally justified on several grounds. First, it was suggested that because of the inequality between the resources of the state and accused persons, the rule played an important function in levelling the field of combat. In this sense, the rule was closely related to principles that are designed, among other things, to achieve an equilibrium between the state and accused persons, such as the presumption of innocence, the “right to silence”, the requirement that the prosecution prove the elements of an offence to the criminal standard of proof and the common law requirement that jury verdicts be unanimous.

    Secondly, it was sometimes asserted that the rule reflected the ideal that it is unfair to convict a person unless they have had fair warning of the reach of the criminal law concerned. This argument was explained by Holmes J delivering the opinion of the Court in McBoyle v United States: “[I]t is reasonable that a fair warning should be given to the world … of what the law intends to do if a certain line is passed.” In this respect, the rule of strict construction was closely allied with the presumption that Parliament did not intend statutes creating liabilities to have retrospective operation.

    This second justification has been criticised on the basis that “[t]hose who skate on thin ice can hardly expect to find a sign which will denote the precise spot where they may fall in”. However, such an argument, if accepted, could condone careless drafting practices.  Because the criminal law is the most coercive instrument which the state possesses and because its application has potential implications for the loss of personal liberty, the legislature would normally be obliged to spell out with sufficient clarity the conduct that attracts criminal liability.

    Thirdly, the rule of strict interpretation has sometimes been justified as upholding the separation of the respective roles of the legislature and the judiciary in determining the content of the criminal law. Courts have now relinquished the power to create new categories of criminal offences. Interpreting penal statues narrowly preserves this power exclusively for the legislature; but on terms of fairness to potential accused.

    ... In recent times the rule of strict interpretation has “lost much of its importance”, and is now generally regarded as a rule of “last resort”. It comes into operation when the normal principles of interpretation have “run out”, if “all other indicia [have] failed” to provide guidance. It applies “if [there is] genuine doubt as to the intention of the legislature and if there are no considerations indicating the desirability of a wide interpretation of the statute”.

    The ordinary rules of construction are now first applied, including in the ascertainment of the meaning of penal and taxing legislation. In such categories, as much as anywhere else, it is the duty of a court to ascertain, and give effect to, the purpose of the legislature as expressed in the language enacted by Parliament. To some extent the demise in the attractiveness of the former rule of construction has followed the recognition by courts of the legitimacy of modern Parliaments, elected as they now are by universal suffrage.

    Artificial categories and exceptions are now less in favour than they formerly were. Nevertheless, somewhat like the contra proferentem rule (the occasionally useful principle of construction of insurance and like documents) the principle suggesting a stricter approach to the interpretation of penal legislation may sometimes prove useful when ambiguity seems intractable.

    [Citations omitted].

18. Section 244 establishes a scheme concerning offences related to witnesses in judicial proceedings.  It is part of a larger scheme to be found in Division 3 of Part 7 of the CLCA, which is concerned with offences relating to judicial proceedings.  The other provisions of Division 3 are concerned with perjury and subornation;[5] fabricating, altering or concealing evidence;[6] offences relating to jurors and juries;[7] and threats or reprisals relating to persons involved in criminal investigations or judicial proceedings.[8]

    [5]    Section 242.

    [6]    Section 243.

    [7]    Sections 245, 246 and 247.

    [8]    Section 248.

19. Section 244(3) must be considered in the scheme of the CLCA and s 244. It creates an offence of preventing or dissuading, or attempting to prevent or dissuade, another person from attending as a witness at judicial proceedings, giving evidence at such proceedings, or producing a thing in evidence at such proceedings. In our view, the proper construction of s 244(3) is that it does not create an offence of preventing or dissuading, or attempting to prevent or dissuade, another person from giving false evidence at judicial proceedings. So much is apparent from the consideration of the terms of s 244(1)(b) and s 244(2)(b).

20. Section 244(1) and s 244(2) are complementary provisions. Section 244(1) prohibits a person from proffering a benefit to a witness or potential witness not to attend to give evidence or to produce evidence or to withhold evidence or give false evidence at judicial proceedings. Section 244(2) prohibits a person from seeking a benefit as a witness or potential witness not to attend to give evidence, to produce evidence, to withhold evidence, or give false evidence at judicial proceedings. Section 244(3) addresses a similar but different mischief from s 244(1) and (2). It is concerned with the prevention or dissuasion, or the attempt to prevent or dissuade, a person from attending as a witness, giving evidence, or producing a thing in evidence at judicial proceedings, as opposed to procuring that outcome by means of proffering a reward or inducement, or seeking a reward or inducement, to interfere with judicial proceedings in that way. It is concerned with two related vices: the intimidation of witnesses from attending court to give evidence and the intimidation of witnesses, who have attended court to give evidence, from entering the witness box and doing so.

21. Having regard to the obvious purpose of s 244 in protecting the integrity of judicial proceedings, it is difficult to identify a basis for s 244(3) not prohibiting a person from preventing or dissuading, or attempting to prevent or dissuade, another person from giving truthful evidence. Nonetheless we consider the language of s 244 is intractable. The Parliament may have been concerned to avoid duplicating, in large part, s 242(2). Even if the Court considered that the statutory text was ambiguous, it would resolve the ambiguity in favour of the subject. The Court would not extend a penal statute to cover a particular situation because the Court considered that the legislature had inadvertently overlooked a particular situation.[9] Section 244(3) does not extend to prohibiting a person from dissuading, or attempting to dissuade, another person from giving truthful evidence, whether by commission or omission.

    [9]    Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186, subsequently cited with approval in Krakouer v R [1998] HCA 43 at [62], (1998) 194 CLR 202 at 223.

    Consideration

22. The appellant was charged with preventing or dissuading, or attempting to prevent or dissuade, another person from attending at judicial proceedings. He was not charged with attempting to prevent or dissuade another person from giving evidence. The charges allege a contravention of s 244(3)(a). They do not allege a contravention of s 244(3)(b). In our view, the evidence of the two letters cannot prove facts which establish an attempt by the appellant to prevent or dissuade the complainant from attending as a witness at judicial proceedings. The text of the letters, read separately or together, do not seek to prevent or dissuade the complainant from attending at court to give evidence in relation to the charges the appellant understood he was facing or, for that matter, the charges he actually was facing.[10]   Rather the meaning of the letters is an attempt by the appellant to persuade the complainant to make a new and false statement to the police about the circumstances of the offending which is exculpatory of any offence of physical violence against the complainant.  Accordingly, the appellant could not have been found guilty of the charges to which he pleaded guilty.

    [10]   There was an issue whether the appellant believed at the time he wrote the letters that he was charged merely with assault and damage property, or whether he believed he was also charged with the two major indictable offences of threaten to kill and aggravated serious criminal trespass in a place of residence.  His belief is only relevant to the sentence appeal.

    Should the convictions be set aside?

1. A person may plead guilty to an offence for reasons that extend beyond a person’s belief in their guilt.[11]  For the Court to allow the appeal and set aside the convictions, it must be established that a miscarriage of justice has occurred.

   [11]   Meissner v The Queen [1995] HCA 41, (1995) 184 CLR 132.

2. In R v Caruso[12] von Doussa J held that in certain circumstances s 352 of the CLCA confers power upon the Court of Criminal Appeal to set aside a conviction recorded on a plea of guilty.[13]  Von Doussa J adopted the principle enunciated by the Court of Criminal Appeal (Eng) in R v Forde[14] that the Court of Criminal Appeal can set aside a conviction recorded on a plea of guilty where it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged.[15]

   [12] (1988) 49 SASR 465.

   [13] Section 352 of the CLCA was repealed by the Summary Procedure (Indictable Offences) Amendment Act 2017, but continues to apply to proceedings that were commenced before the commencement of the amending act. 

   [14] [1923] 2 KB 400 at 403.

   [15] (1988) 49 SASR 465 at 489.

3. Plainly, this is a case which falls into the second category identified in R v Forde, applied in Caruso and subsequently followed by this Court in R v Pugh[16] and Berti v Police (No. 2).[17]A miscarriage of justice has occurred because, upon the admitted facts, the appellant could not in law have been convicted of a contravention of s 244(3).

   [16] [2005] SASC 427.

   [17] [2014] SASC 188.

   Disposition of the appeal

4. In the circumstances the Court held it appropriate to allow the appeal and to order that the convictions be quashed. 

5. The appellant conceded that the alleged conduct supports a charge of attempting to pervert the course of justice contrary to s 256 of the CLCA.  It was therefore not appropriate, in the special circumstances of this case, to enter an acquittal.

6. For these reasons the Court made orders allowing the appeal and quashing the convictions and directed a new trial.  Those orders rendered the sentence appeal otiose.  Upon remittal the appellant may choose to plead guilty to the alternative offence of a contravention of s 256(1) of the CLCA or the Director may seek to amend the Information to charge such an offence, or to proceed to trial on the existing Information and seek a verdict of guilty on the alternative charge.