R v Mathews

[1992] QCA 462

IN THE COURT OF APPEAL [1992] QCA 462

QUEENSLAND

C.A. No. 238 of 1992

T H E Q U E E N

v.

RUSSELL GORDON HAIG MATHEWS

(Appellant)

JUDGMENT - THE CHIEF JUSTICE

Delivered the 18th day of December, 1992.

I have read the reasons prepared in this matter by McPherson J.A. and Derrington J. and I agree with them that the appeal against conviction should be dismissed. In view of what is there stated, I can express my own reasons relatively

briefly.

The substantial question argued concerned the proper construction of s. 36A of the Crimes Act 1914 and the terms of the learned trial judge's summing-up in relation to that section.

The relevant words of s. 36A for our purposes are:

"A person who: (a) ... intimidates ... a person ... on account of his ... being about to appear, as a witness in a judicial proceeding shall be guilty of an indictable offence."

In dealing with the elements involved in the offence, the trial judge, in my opinion quite correctly, at one point of his summing-up instructed the jury in these terms:

"on account of simply means he intimidated her because

she was to appear as a witness."

However, a little later he instructed them further and in a little more detail on what the charge involved and Derrington

J., in his reasons, has quoted the words used by the judge. I wish to deal with this further instruction.

I think that in the present circumstances the words of the section under which the charge was brought involved a requirement of proof that the appellant had intimidated Joanne Kathryn Maddigan, that is, performed actions which had the prescribed effect upon her of intimidation and of proof also

that the appellant did what he did because she was about to appear as a witness. It is only on this second aspect that I need to say anything.

There are two quite distinct aspects which may be concerned
in cases like the present. One is the circumstances of which an

offender is aware which prompt him to act as he does. The relevant words of the section which I have quoted turn attention to this aspect because of the requirement that the action shall be "on account of" or, as it could equally simply be put,

"because of" the matter referred to. A quite different matter which it may be possible to distinguish is something that the section is not concerned with, namely, the result which an offender hopes will subsequently flow from the action of intimidation which he performs, that is, what he hopes to

achieve subsequently.

The later words of the summing-up quoted by Derrington J.
show that the trial judge dealt with a feature not necessarily
involved in the elements of the offence, namely, the likely

effect of the appellant's behaviour upon the woman's subsequent actions. The judge sufficiently conveyed to the jury that if they were to convict they needed to be convinced that the woman felt intimidated by the appellant's actions but he then

incorrectly conveyed to them that they also needed to conclude

that the appellant knew that his behaviour was likely to deter the woman from giving evidence or affect her as a witness. I have already stated my conclusion that this was not involved as

an element in the charge that was brought. In the circumstances, however, this further direction would not have had the effect of misleading the jury and particularly would not have done so in any way to the appellant's disadvantage.

If the jury were persuaded that the appellant acted as he
did to deter the woman from giving evidence or to affect her

testimony then that would involve a conclusion on their part that his action was "on account of" her being about to appear as a witness. Further, the judge a short time before adding the instruction now being examined, namely that the simple matter

for proof was that the intimidation was because the woman was to

appear as a witness, had perfectly correctly instructed the jury in terms which I have already quoted. Turning the jury's attention to the need to be satisfied on a further matter which was not necessarily involved could not have operated to the appellant's disadvantage.

Since I am in agreement with what Derrington J. has said in respect of the matters which the appellant argued concerning his solicitor's alleged conduct, I do not find it necessary to add anything.

The appeal should be dismissed.

IN THE COURT OF APPEAL

QUEENSLAND

C.A. No. 238 of 1992

T H E Q U E E N

v.

RUSSELL GORDON HAIG MATHEWS

(Appellant)

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
The Chief Justice
Mr Justice McPherson

Mr Justice Derrington

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

Reasons for judgment prepared by the Chief Justice, Mr Justice McPherson and Mr Justice Derrington. The Chief Justice and Mr Justice McPherson agreeing with the order proposed by Mr Justice Derrington

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

APPEAL AGAINST CONVICTION DISMISSED.

ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ

JUDGMENT - THE CHIEF JUSTICE

Delivered the 18th day of December, 1992

MINUTE OF ORDER:Appeal against conviction dismissed.

CATCHWORDS:CRIMINAL LAW - INTENT - Applt convicted of intimidating a witness - Wh trial judge failed to direct jury that intention to dissuade complainant from testifying was an essential element - Wh intention can be inferred from an act with knowledge of consequences.

Counsel:Appellant in person.

S. Hunter for the respondent.

Solicitors:Appellant in person.

Commonwealth Director of Public Prosecutions for

the respondent.

Hearing date:  10 November, 1992

JUDGMENT - McPHERSON J.A.

Delivered the Eighteenth day of December 1992

The appellant was convicted in the District Court at Brisbane of the offence of intimidation of a witness in contravention of s.36A of the Crimes Act 1914 (Cth.). At his trial the jury found the appellant guilty of having intimidated a Mrs. Maddigan on account of her being about to appear as a witness in a judicial proceeding, namely a hearing before the Human Rights Commission.

I have had the advantage of reading the reasons of Derrington J., where the facts are set out. Mrs. Maddigan was due to give, and in the event did give, evidence before the Commission at a hearing on 24 January 1991 of a complaint by her against the appellant. Two days before that hearing date the appellant telephoned her, and, after identifying himself as the caller, said: "How would the RAAF like to know you're a criminal?"

The appellant had previously accused Mrs. Maddigan of stealing some documents from his office at a time when she was working for him. The reference to the RAAF is, as my brother Derrington points out, explained by the fact that Mrs. Maddigan's husband was a police dog handler with the RAAF at Amberley, for which he had a high security clearance.

In a context like s.36A the word "intimidate" and its derivatives is not a technical term, or term of art, but a word in common use employed in its popular sense: "O'Connell v. the Queen (1844) 11 Cl. & Fin. 155, 235; 8 E.R. 1061, 1092. Ordinarily intimidation would involve some threatening words or conduct tending to coerce the other person: cf. Bilby v. Hartley (1892) 4 Q.L.J. 137, 143, col.2. Whether there has been intimidation is a question for the jury to decide on the evidence: see R. v. Baker (1911) 7 Cr.App.Rep. 89, 92. Here the words used by the appellant were plainly capable of founding a conclusion that the appellant was intimidating Mrs. Maddigan. She said she felt frightened, "and didn't want to give evidence. I just wanted to call the lot off".

It also seems clear that the intimidation was "on account of" Mrs. Maddigan's being about to appear as a witness at the Commission hearing. In my view the expression "on account of" in s.36A means "for the reason that" or, put more simply, "because". Having regard to Mrs. Maddigan's prior employment by the appellant, the circumstances in which that employment came to be terminated, her subsequent complaint about it, and the impending hearing of it before the Commission, it was legitimate for the jury to conclude that the appellant had intimidated Mrs. Maddigan because she was going to be a witness at the hearing due to take place two days later.

The jury were therefore justified in finding the appellant guilty of the offence charged.

With respect to other matters raised on appeal I am in agreement with the reasons of Derrington J.

REASONS FOR JUDGMENT - DERRINGTON J.

Delivered the 18th day of December 1992

The appellant was convicted of the charge that on or about 22nd January 1991 at Ipswich he intimidated Joanne Kathryn Maddigan on account of her being about to appear as a witness in a judicial proceeding, namely, a hearing before the Human Rights and Equal Opportunities Commission, and he appeals against this conviction.

His grounds were poorly defined and made worse by his self-representation, for although he is an accountant and quite articulate, his capacity to see his own problems is not good. Some of his grounds were related to evidence at another hearing which was not led in this trial. Other grounds related to tactical decisions made by him with his counsel, and he now wishes to go back on those decisions after they have proved unsuccessful.

Although the complainant gave uncontradicted evidence that the appellant rang her at her place of work, and said: "It's Russell Mathews here. How would the RAAF like to know you're a criminal?", and that she felt intimidated by this communication, he argues that there is no evidence of intimidation or any intent on his part to intimidate her. By way of explanation it should be mentioned that the complainant's husband serves with the RAAF and has a high security clearance so that the suggestion that she has criminal tendencies may have proved very embarrassing to him. This conduct was clearly intimidatory by strong implication and the reasons for judgment of McPherson JA explained this further.

When asked by this court during the course of his submissions to suggest any reasonable explanation as to why this communication should not have been intended to intimidate the complainant, the appellant was clearly at a loss and could not do so.

Only two of his grounds deserve discussion. The first is a claim which is supported only by his statements from the bar table, and said by him to have its origin in rumour in the watchhouse. It alleges that his former solicitor, who acted for him in his trial and who had only then recently commenced to practise in his own right, was corruptly inclined to favour the interests of the prosecution over the interests of his own client, the applicant, for some vaguely- defined personal benefit. Although it was suggested that he would thereby acquire more persuasion generally with the Office of the Director of Prosecutions, it is not easy to understand how this could be achieved or what benefit it could be to him since his hope of future work would necessarily be directed to the Legal Aid Office rather than to that of the Director of Prosecutions.

The appellant tried to fortify his claim by reference to an alleged conversation between himself and the solicitor in which the latter is said to have informed him that the complainant was highly regarded in the Office of the Director of Prosecutions where she worked and that everyone there wanted to see her vindicated by the conviction of the appellant. Again it is difficult to see what was wrong with this communication, if it really occurred. Solicitors for defendants often have communication with the prosecution side and informally discuss the matter that mutually concerns them. This sometimes produces results useful to a client. In this case, if the solicitor did tell the appellant such things as are alleged, there is no reason why this should not be regarded as an indication of openness with his client and the passing on of information which may have provided a useful warning to him.

In any case the appellant continued to use the solicitor. He says that he asked the Legal Aid Office to appoint someone else but it refused; but he did not himself withdraw instructions. Moreover there is little by way of any practical consequence, for the appellant was also represented by counsel engaged by the Legal Aid Office. There is no substance in any part of this point which seemed to accumulated fresh features as the argument progressed in a way which was obviously unpropitious for the appellant's cause.

The second and only serious ground of the appeal is that the learned trial Judge misdirected the jury on the law in respect of the charge, and more particularly that he failed to direct them that it was an essential element of the offence that at the time of his intimidatory action the appellant should have had the intent that the complainant would thereby be dissuaded or deterred from giving evidence or truthful evidence. This proposition is based upon Gregory v. Phillip Morris Ltd. (1987) 74 A.L.R. 300 which decided that such an intent was an element in a charge of contempt of court for conduct of this nature.

Although he rejected this argument the learned trial Judge effectively allowed to the appellant the benefit of a direction substantially conforming with that authority, for in his

summing up he said:-

"Taking that definition, if you are satisfied on the evidence that the words spoken by the accused man were likely, to his knowledge, in the context of the whole of the accused's dealings with her, to cause her to become fearful or cowed in relation to her giving evidence in the proceedings before the Human Rights Commission and you are also satisfied that what was said was likely, to his knowledge, either to deter her from giving evidence or to in some other way affect her as a witness and that you were satisfied that she did in fact become fearful or cowed before giving evidence before the Human Rights Commission, then that element of the offence is satisfied."

If it is accepted that intention can be inferred from the act of a person with knowledge as to its likely consequences then this direction effectively included intention as an element of the offence to the extent that was appropriate. This requires explanation.

The offence is defined by s. 36A of the Crimes Act, which where relevant reads:

"36A. A person who . . . intimidates . . . a person for or on account of his . . . being about to appear as a witness in a judicial proceeding shall be guilty of an indictable offence."

The only relationship between the intimidation and the appearance of the victim as a witness which is required is that the intimidation must be exercised "on account of" that prospective appearance. Prima facie the expression is clear and is related to motive. It is not limited to the case where any particular result in respect of the giving of evidence is intended. For example, an offender who is angry that a prospective witness is to give evidence would be guilty for intimidating that person even if the motive is only anger or spite and without any intention to deter the witness: cf. Chapman v. Honig (1963) 2 Q.B. 502. Equally it would not matter that the offender had the intention to advance the truthfulness of the witness' evidence or to deter untruthfulness. For example if a police officer were to intimidate a witness on account of the prospective evidence of the witness, it would not matter that the motive behind the intimidation was that the witness should give the evidence and tell the whole truth.

There is certainly a mental element in the offence in that the offender must have exercised the intimidation because of or for some reason in his mind connected with the victim's anticipated giving of evidence. This of course flows from the words "on account of", but the required mental connection goes no further than that and so provided that there is intimidation, the range of the factors behind the motive is unlimited provided that there is intimidation. This is quite acceptable because of the desirability of preventing intimidation of witnesses as such for any reason connected with that evidence except that it must be in some way "on account of" the prospective appearance of the person intimidated as a witness.

It is significant that the terms of the section are clearly wider than the usual expression of the common law as to the perversion of the course of justice in circumstances of this nature: Reg. v. Kellett (1976) Q.B. 372. So too are they more widely expressed than the comparable terms of the Queensland Criminal Code or of the relevant codes of Canada or New Zealand, both of which are discussed in Kellett. It is not unreasonable to conclude that the difference in drafting was intentional so that the reference in those other places to the need to show that the offender intended to deter the party from giving evidence does not apply as a specific element under this legislation. While such conduct would of course amount to a breach of this act, the scope of this offence extends more widely.

As Kellett indicates, both at common law and under the codes mentioned in it, it is not relevant that the motive of the offender was to ensure that the truth prevailed nor that the threat related to an action which was lawful. The gravamen of the offences there was the use of unlawful means to deter or influence the witness in the giving of evidence, which of course conversely exculpated a person who used proper means such as persuasion to deter a witness from appearing to give false evidence.

In addition, it is also noted in Kellett that it would amount to contempt of court for a private person to punish a witness for having given evidence even though there may not be any factor of deterrence. So too in s. 36A, this type of offence which does not involve any element of intent to deter a witness is proscribed. Consequently there is reason to accept that its drafting was intended to encompass a wider scope of offence than each of those discussed above and was intended to be comprehensive. In that case, it is not a necessary element of the offence that there be an intention to deter a witness from giving evidence. However, if that is one possible reason on account of which the intimidation is exercised, it is appropriate in the summing-up to refer to it in that context.

Consequently the direction of the learned trial Judge was perfectly accurate when he said that the words "on account of" simply means that he intimidated her because she was to appear as a witness. By his later explanation that it was necessary for the jury to find that the intimidation was "in relation to her giving evidence in the proceedings before the Human Rights Commission was also correct. Where he spoke of the need to find that the intimidation was likely "to his knowledge, either to deter her from giving evidence or in some other way affect her as a witness" he again correctly raised the matter of motive, mentioning the intention to deter as one possible basis for the intimidation but not limiting it to that. If the jury is satisfied that somehow the intimidation is exercised "on account of" the prospective evidence, it does not have to be able to say precisely how it was on account of it. The explicit reference in this case to such a possible motive is justified in that it identified the prosecution case as to the likely reason for the intimidation but there was no reason why the prosecution should have been confined to relying upon proof of that intention. In that respect it was again perfectly accurate and sufficient.

The appeal should therefore be dismissed.