R v McGee

[2008] SASC 328

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MCGEE & MCGEE

[2008] SASC 328

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)

26 November 2008

CRIMINAL LAW - PROCEDURE - PLEAS - PLEAS IN BAR - PLEA OF AUTREFOIS ACQUIT OR AUTREFOIS CONVICT - WHETHER VALID PLEA - OTHER CASES

First appellant struck and killed cyclist after consuming an amount of alcohol – first appellant convicted of driving offences – sentencing judge found as a mitigating factor that first appellant was in a dissociative state after the accident – after sentence imposed for offences of first appellant, both appellants charged with conspiracy to attempt to pervert the course of justice – prosecution indicated that it would adduce evidence at trial that first appellant was not in a dissociative state – appellants sought stay of criminal proceedings in District Court – appeals from dismissal of an application to stay proceedings – whether the DPP can controvert factual findings made in the course of sentencing first appellant for driving offences.

Held: incontrovertibility operates when there is an inconsistency between a verdict in earlier proceedings and an assertion made in later proceedings – principle does not apply to facts found at sentencing hearings, other than those necessarily arising out of a verdict – prosecution's intent to controvert findings of sentencing judge does not give rise to such unfairness or oppression such as to warrant stay of the proceedings – appeals against the refusal of a stay dismissed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - PRE-TRIAL PUBLICITY

Appeals from dismissal of application to stay proceedings – first appellant failed to stop to render assistance after striking a cyclist – first appellant convicted of driving offences – widespread dissatisfaction with penalty imposed on first appellant in relation to driving offences – acute public interest in the case necessitating Royal Commission – publicity included reference to the circumstances of the accident and the appellants’ subsequent conduct – both appellants subsequently charged with conspiracy to attempt to pervert the course of justice – appellants sought stay of criminal proceedings in District Court – whether the publicity about the circumstances giving rise to the charge resulted in a significant and substantial risk that the appellants would not receive a fair trial sufficient to require a stay of proceedings.

Held: pre-trial publicity not such as to give rise to an unacceptable risk of an unfair trial – appeals against the refusal of a stay dismissed.

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - PARTICULAR OFFENCES - ATTEMPT TO PERVERT THE COURSE OF JUSTICE

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - GENERALLY

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL

Appeals from dismissal of application to stay proceedings – appellants charged with conspiracy to attempt to pervert the course of justice, contrary to the common law and s 256 of Criminal Law Consolidation Act 1935 (SA) – offence in s 256 does not apply when the relevant conduct ‘otherwise dealt with’ by other sections of the Act – facts to be alleged by prosecution in support of charge occurred before proceedings on foot, and at preliminary stages of police investigation – whether conduct alleged by prosecution capable in law of establishing charge – whether circumstances of the offence ‘otherwise dealt with’ so that s 256 cannot apply – whether the prosecution is bound to fail and an abuse of process.

Held: prosecution not bound to fail and not an abuse of process – appeals dismissed – (White J, Doyle CJ agreeing) conduct occurring during police investigation but prior to the commencement of proceedings capable in law of amounting to a conspiracy – (Doyle CJ, White J agreeing) circumstances relied upon not otherwise dealt with in relevant Part of Act – (Gray J) conduct alleged by prosecution otherwise dealt with by relevant Part of Act – Information could be amended to refer to other relevant sections with an alternative reference to s 256.

Whether all of the circumstances, considered collectively, call for the grant of a stay of proceedings.

Held: taken in combination, the circumstances of the case did not call for the grant of a stay of proceedings – appeals against the dismissal of an application for stay dismissed.

Criminal Law Consolidation Act 1935 (SA) s 237, s 239, s 240, s 241, s 243, s 251, s 256(1), s 256(2), s 270(2), s 277(1), s 348, s 350(2), s 352(1)(c), s 353(3a), Sch 11; Juries Act 1927 (SA) s 6A; Road Traffic Act 1961 (SA) s 43(1), s 47E, s 47G; Statutes Amendment and Repeal (Public Offences) Act 1992 (SA) s 10, referred to.
The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 251; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72; Walton v Gardiner (1992-1993) 177 CLR 378; R v Smith [1995] 1 VR 10; Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; The Queen v Rogerson (1991-1992) 174 CLR 268; The Queen v Glennon (1992) 173 CLR 592; R v Connell, Lucas & Carter (No 3) (1993) 8 WAR 542; Williams v Spautz (1991 - 1992) 174 CLR 509; Ridgeway v The Queen (1994-1995) 184 CLR 19; The Queen v Debelis (1984) 36 SASR 1, applied.
Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328; Pearce v The Queen (1998) 194 CLR 610, distinguished.
R v McGee & Anor [2008] SADC 8; R v McGee & Anor [2007] SADC 10; (2007) 247 LSJS 95; K; Ex parte Attorney-General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108; R v Sharpe and Stringer (1937) 26 Cr App R 122; [1938] 1 All ER 48; Cane v The Queen [1968] NZLR 787; R v Spezzano (1977) 76 DLR (3d) 160; R v Rafique [1993] 4 All ER 1; R v Thomas [1979] 1 QB 326; Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; Meissner v The Queen (1994-1995) 184 CLR 132; The Queen v Johnson (1979) 22 SASR 161, discussed.
R v Leece (1996) 65 FCR 544; (1996) 86 A Crim R 494; Connelly v Director of Public Prosecutions [1964] AC 1254; William el Azzi [2001] NSWCCA 397; (2001) 125 A Crim R 113; Kok Cheng Tan [2002] WASC 42; (2002) 128 A Crim R 286; R v Petroulias (No 1) [2006] NSWSC 788; (2006) 177 A Crim R 153; Healy v The Queen (1995) 15 WAR 104; The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232; Regina v Selvage [1982] QB 372; Rice v Connolly [1966] 2 QB 414; Jamieson v The Queen (unreported, judgment of the Court of Criminal Appeal (SA) (20 March 1991)); R v Allan [1995] 2 VR 468; Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"otherwise dealt with"

R v MCGEE & MCGEE
[2008] SASC 328

Court of Criminal Appeal:  Doyle CJ, Gray and White JJ

1. DOYLE CJ: Mr Eugene McGee and Mr Craig McGee are brothers. They are charged with conspiracy to attempt to pervert the course of justice contrary to the common law and contrary to s 256(1) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”).

2. They applied to a judge of the District Court for an order quashing the Information on the ground that it charges an offence not known to the law of South Australia.  They also applied for an order staying the proceedings on the ground that the continuation of the proceedings would be an abuse of the process of the District Court.  On 16 February 2007 the Judge declined to quash the Information: R v McGee & Anor [2007] SADC 10; (2007) 247 LSJS 95 (McGee No 1”).  On 14 February 2008 the Judge dismissed the application for a stay of the proceedings: R v McGee & Anor [2008] SADC 8 (“McGee No 2”).

3. The application for an order quashing the Information was made on the basis that the offence charged was not one known to the law of South Australia.  The application for a stay of the proceedings relied upon a number of grounds, both individually and cumulatively.  The applicants relied upon the time that had elapsed since the events in question and since the institution of the proceedings; on delays by the prosecution in providing adequate particulars; upon shifts in the prosecution case as disclosed by the particulars; on the fact that the prosecution proposes to challenge findings said to be favourable to Mr E McGee, made by the Chief Judge of the District Court when sentencing him in earlier proceedings; on the adverse effects of publicity about the circumstances giving rise to the offence alleged, and about the case generally, it being submitted that the effect of the publicity was that there could not be a fair trial, and on an asserted weakness in the prosecution case that meant that it was bound to fail (as a matter of fact and as a matter of law).  They submit that taken in combination these circumstances give rise to unacceptable unfairness and oppression, and that some of the matters standing alone call for a stay of the proceedings on the same ground.

4. The decision refusing to stay the proceedings was a decision on an issue antecedent to trial, for the purposes of s 348 of the CLCA.

5. The Judge granted permission to each of the defendants to appeal against his decision refusing a stay, exercising the power conferred by s 352(1)(c) of the CLCA.

6. The powers of the Court in relation to that appeal are to be found in s 353(3a) of the CLCA, which provides as follows:

   353—Determination of appeals in ordinary cases

   …

   (3a)   If an appeal is brought against a decision on an issue antecedent to trial, the Full Court may exercise any one or more of the following powers:

   (a)it may confirm, vary or reverse the decision subject to the appeal; and

   (b)it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances.

7. As yet, the McGees have not been called upon to plead to the Information.

8. It is unfortunate that an Information, filed in October 2006, should still be at this early stage of proceedings.  However, the Court must now deal with the issues argued on appeal.

9. Before considering the submissions, I propose to outline the history of the case.  Further detail is to be found in the comprehensive reasons provided by the District Court Judge in McGee No 2.  I propose also to deal with the publicity about which complaint was made, and with the sentencing of Mr E McGee in relation to the related offences.

   Background

10. The facts upon which the applications were made to the District Court Judge are not as clear as they might have been.  What follows is drawn from the reasons of the Judge and from submissions to the Court.  As far as I am aware, what follows is common ground between the parties, at least for the purposes of the applications made to the District Court.

11. On Sunday 30 November 2003 Mr E McGee consumed a quantity of alcohol at a hotel at Allendale North between about 1.00 pm and 4.20 pm.  Mr C McGee was with him at the time.

12. At about 4.20 pm Mr E McGee left the hotel to drive to Adelaide.

13. At about 5.05 pm his vehicle (a four wheel drive) struck and killed Mr Humphrey who was riding his bicycle along the Gawler to Kapunda Road, in the same direction as Mr E McGee.  Mr Humphrey died almost instantly.

14. Mr E McGee did not stop to render assistance.  He continued driving until he came to Roseworthy Road, where he turned off the main road.

15. The prosecution will contend that he believed that he had killed the cyclist, believed that his driving may have been impaired by the alcohol he had consumed, and decided to evade detection by the police with a view to avoiding having to undergo a breath analysis or a blood alcohol test.

16. At 5.11 pm Mr E McGee contacted Mr Edwardson (a barrister) by mobile telephone.  There were several telephone calls between them until after 8.00 pm.

17. At 5.37 pm Mr E McGee telephoned his brother, Mr C McGee.  There was then a series of phone calls between them until 6.49 pm.

18. At the time of the first call to Mr C McGee he was returning to the Riverland.  He turned around and drove his motor vehicle to the home of Mrs McGee (their mother) at Kapunda.

19. At about 6.50 pm two police officers went to Mrs McGee’s home.  They spoke to Mr C McGee.  He told them that he had not seen Mr E McGee, and he did not have his mobile telephone number.

20. There were three further telephone calls between Mr E McGee and Mr C McGee close to 7.00 pm.

21. Not long after this Mr E McGee arrived at Mrs McGee’s home, and left his vehicle there.  It was observed to be there at 7.50 pm.

22. Mr C McGee set out to drive Mr E McGee to Adelaide in Mr C McGee’s motor vehicle.  Along the way they drove through a police roadblock.  They went to Mr E McGee’s home in Adelaide, and then to the home of Mr Edwardson.

23. There was telephone contact during the course of the evening between Mr E McGee’s legal representatives and police. At about 11.30 pm Mr E McGee presented himself to police and was arrested.

24. On 1 December 2003 Mr E McGee was charged with causing death by dangerous driving, failing to stop following a collision which resulted in the death of another person, and failing to render assistance.

25. Mr E McGee pleaded guilty to the second and third offences.  On 6 August 2004 he was committed to stand trial in the District Court on the charge of causing death by dangerous driving.

26. On 15 April 2005 a jury returned a verdict of not guilty on that charge but guilty of the lesser charge of driving without due care.

27. On 28 April 2005 the Chief Judge of the District Court fined Mr E McGee $800 for the offence of driving without due care.  For the other two offences he fined Mr E McGee the sum of $2,300.  He imposed licence disqualifications for a period of 12 months.

28. On 3 May 2005, there having been considerable public controversy about the road accident, the events that followed and the trial, the Premier announced in Parliament that the Government had appointed a Royal Commissioner to inquire into the collision, the manner in which the police investigation was conducted, and into the conduct of the trial by the Office of the Director of Public Prosecutions. 

29. A Royal Commissioner was appointed on 5 May 2005.  He presented his report on 15 July 2005.

30. On about 26 August 2006 Mr E McGee and Mr C McGee were charged with conspiracy to pervert the course of justice.  (The charge was later amended.)   They were committed to stand trial.

31. That led to the applications to the Court to which I referred earlier.

    Proceedings on the Information

32. Two sets of particulars were provided by the Director of Public Prosecutions (the “DPP”) while the matter was before the Magistrates Court.  There were material differences in the manner in which the case was particularised.

33. The applications to the District Court Judge were heard over a period between February 2007 and January 2008.  Two further sets of particulars were provided, making five sets of particulars in all (including the particulars on the Information).

34. Not surprisingly, the judge was critical of the DPP for changing the particulars (it is not necessary now to go into the details), and for the delay and confusion that this caused: McGee No 2 at [30].

35. The particulars as they now stand are as follows (McGee No 2 at [26]):

    The accused conspired to attempt to pervert the course of justice in so far as they agreed to frustrate, deflect or prevent members of the South Australian Police Force from investigating or adducing evidence of the blood alcohol reading and sobriety of Eugene McGee at the time of a collision between a Mitsubishi Pajero motor vehicle driven by Eugene McGee and a bicycle ridden by Ian Humphrey that occurred on the Kapunda to Gawler Road at approximately 5.05 pm on 30 November 2003 by preventing or impeding members of the South Australian Police Force, and in particular those charged with the investigation into the circumstances of the collision, from making contact with Eugene McGee for a period of hours after the collision.

    The sentencing of Mr E McGee on the driving charges

36. In submissions on sentence before the Chief Judge of the District Court, the DPP submitted that a circumstance of aggravation was the fact that Mr E McGee was aware of his obligation to stop and to render assistance, and was aware that a breath analysis must be conducted within two hours of the accident if it were to be relied upon.  I mention that Mr E McGee is an experienced legal practitioner who practises in the criminal jurisdiction.  The DPP submitted that he deliberately left the scene, showing no concern for the welfare of Mr Humphrey, and that Mr E McGee avoided the police for about four hours, and that because of that the police were not able to require him to submit to a breath test or blood analysis.

37. In relation to that issue evidence was led by counsel for Mr E McGee from a psychiatrist.  The effect of that evidence, and the Chief Judge’s findings, appear in the following extract from the Chief Judge’s sentencing remarks on 28 April 2005:

    Both of these offences must be considered in light of the evidence given by Professor McFarlane, the psychiatrist who has been treating you.  Once again it is unnecessary to repeat the details of his lengthy evidence and cross-examination during the trial.

    The position can be summarised by saying that it is his opinion that, as a result of your exposure to horrifying incidents involving death and mutilation during your time as a police officer, and more recently during your involvement as a solicitor in the Snowtown trial, it is a reasonable probability that, at the time of this crash and for some time before, you were suffering from a post-traumatic stress syndrome or disorder and that, because of that, your involvement in the obviously catastrophic impact with Mr Humphrey triggered a dissociative state which he described as an emotional reaction that interferes with the capacity to behave in an ordinary or appropriate way.

    It is his opinion that the effect of such a state would be consistent with being unable to bring yourself to stop and face what you had done.  It is also his opinion that partial amnesia between the time of the accident and later that night would also be consistent with such a condition.

    In giving evidence of his diagnosis, Professor McFarlane had the personal pre-accident history you gave him as well as the matters to which he was referred in evidence-in-chief and cross-examination.  In considering the weight of his opinion for present purposes, the court is entitled to take into account that he had information from a patient that may not have been fully canvassed in evidence from that patient.  In this case, the accumulated effect of that information and his expertise provides a cogent basis for his opinion.

    Obviously, it would be less complicated to diagnose a condition such as post-traumatic stress syndrome if a psychiatrist saw that person at the relevant time, but he described the method by which, when confronted with a patient after a trauma, here the crash itself, he goes about assessing that person’s psychiatric condition prior to such an event.  There is no evidence that suggests that this method that he described should be discredited.

    To the extent that information he obtained from you depended for its value on him being able to accept what you told him as the truth, he described at some length in cross-examination the clinical techniques he has developed over the years to detect fabrication, and he was satisfied that this was not an issue.  No basis has been shown on which that conclusion he reached should be disregarded.

    I refer briefly to the submission put by the Crown this morning about the actions you took and thoughts you had in the period shortly after the impact.  He agreed that this showed a degree of mental functioning, but he said that this does not determine whether there was dissociation.

    Professor McFarlane was unable to say how long this dissociation lasted, but, on a fair reading of his evidence, it would be likely to have been some time between when you started your journey with your brother and when you were arrested at about 11.30 p.m.  This cannot excuse what you did, but it provides some explanation of conduct that appears to be completely out of character, and to that extent it must be taken into account by way of mitigation.

    It would be a factor of aggravation if Mr Humphrey had been deprived of the chance of help that may have saved his life or eased suffering because of your failure to render assistance but, for the reasons that I have given already, such a finding is not open.

    Thus, having regard to the principles of law I have mentioned, the whole of the information before the court, and the range of culpability covered by each of these offences, it cannot be said that the court is required to put aside the penalty of a fine in favour of a sentence of imprisonment.

    (Emphasis added)

1. I will return to these sentencing remarks, but it is apparent that the Chief Judge sentenced for the offences of failing to stop and failing to render assistance on the basis that a dissociative state was triggered at about the time of the accident, and that this interfered with Mr E McGee’s capacity to behave as he ordinarily would.  The Judge accepted that this provided “some explanation of conduct” that was out of character.  To that extent it was a matter of mitigation.

2. The Judge accepted that the disassociation lasted for some time.  On the other hand, there was no suggestion that Mr E McGee was not responsible in law for his actions.  No defence of mental impairment was raised.  In any event, the convictions that were entered against him could only have been entered on the basis that he was responsible for his actions.

3. In proceedings before the District Court Judge (on the application for a stay) the DPP indicated that it was part of its case that Mr E McGee “left the scene of the collision with the intention of remaining out of contact in the period following, for the purpose of avoiding being required to undergo an alco-test or breath analysis by the police and to avoid having the state of his sobriety investigated”: McGee No 2 at [158]. Moreover, in the present proceedings the DPP proposes to call two expert psychiatrists who, according to the DPP, will give evidence that on the basis of the material available, in their opinion, Mr E McGee was not in a dissociated state: McGee No 2 at [162]-[165].

4. To that extent, it appears that the prosecution case will challenge some of the findings made by the Chief Judge.

   Publicity about the case

5. The District Court Judge summarised the material put before him to demonstrate the nature and extent of the publicity that the case had attracted.  I set out below his summary.  It was not criticised by the parties on the hearing of the appeal.  He said at [195]-[215]:

   (ii)     Extent and Nature of the Publicity

   [195]The volume of publicity regarding the Trial of Eugene McGee, his sentencing and the subsequent Kapunda Road Royal Commission, was enormous.  The publicity arose mainly from the print media and through television news broadcasting.  Evidence of the publicity in the print media and in television news broadcasts was presented during the course of the hearing of the Applications.  Included in all that publicity were comments adverse to Eugene McGee’s character.  Whilst there was publicity in the print media and on television regarding the Trial, most of the publicity followed the sentencing of Eugene McGee and, later, with respect to the Kapunda Road Royal Commission.

   [196]The publicity in the print media was largely contained in reports and articles in “The Advertiser”, which is a morning newspaper published in South Australia six days a week from Monday to Saturday.  The national newspaper “The Australian”, also published in South Australia, contained a few reports.  The newspaper, the “Sunday Mail”, published each Sunday in South Australia, also contained some reports or articles from time to time associated with Eugene McGee.  There was also an occasional report in a newspaper published weekly, called the “Independent Weekly”.  There was one report in a newspaper called “The Adelaide Review”.  Some of these print media reports were accompanied by a photograph of Eugene McGee and a photograph of the deceased bike rider, Mr Ian Humphrey.

   [197]There was an occasional newspaper report during the Kapunda Road Royal Commission, associated with Craig McGee.

   [198]During the period up to the time the Jury delivered the verdicts, all of the print media publicity regarding the Trial of Eugene McGee was contained in articles in “The Advertiser”.  These articles in “The Advertiser” simply reported the proceedings of the Trial.  After the Jury delivered its verdict of acquittal in relation to the charge of Causing Death By Dangerous Driving and convicted Eugene McGee of Driving Without Due Care, and before sentence, “The Advertiser” reported on its front page of its publication of 22 April 2005, the complaint of two brothers, Antony and John Zisimou, that they had relevant evidence to give at the Trial.  They were reported as stating that they were interviewed by the Police, but later informed that they were not required to give evidence.  I will return to the issue arising from their complaint shortly.  For the present, it is suffice [sic] to say that their complaint received substantial media publicity thereafter, including at the time when they gave evidence in the Kapunda Road Royal Commission.

   [199]I have earlier mentioned that there was a considerable amount of adverse publicity directed towards Eugene McGee, in the print media.  This adverse publicity arose immediately after Eugene McGee was sentenced on 28 April 2005.  As I have already stated, the Chief Judge imposed a fine for the offence of Driving Without Due Care and a fine for the offences of Failing To Stop and Failing To Render Assistance.  The nature of the sentence, in the form of a fine for the offences of Failing To Stop and Failing To Render Assistance, appears to have been the catalyst for the adverse media publicity which followed.

   [200]On 29 April 2005, the day following the sentencing of Eugene McGee, “The Advertiser” devoted its entire front page, and page four of its publication, to the sentence of Eugene McGee.  On page four, “The Advertiser” published comments by the Premier, Mr Rann, following the sentence, in which he disparaged Eugene McGee.  On the following day, “The Advertiser” also devoted its entire front page to a report on the sentence of Eugene McGee and the aftermath.  About this time, “The Advertiser” published an Editorial commenting on the sentence and offered the opinion that it was “manifestly inadequate”.  It also raised questions about the investigation by the Police, of the circumstances of the collision and the conduct of the Trial.  The Editorial called for an open enquiry.

   [201]Following this, articles by feature writers appeared in the print media criticising the conduct and character of Eugene McGee.  There was also further criticism of the sentence, in which it was claimed that it was inadequate.  Whilst the sentence was criticised in certain sections of the print media, the DPP did not institute an appeal against the sentence.  On 6 May 2006, “The Advertiser” published a statement from the DPP, in which he stated that there would be no appeal of the sentence.

   [202]I mentioned earlier that “The Advertiser” had reported on 22 April 2005, after the Jury verdict and before Eugene McGee was sentenced, the complaint by Mr Antony Zisimou and Mr John Zisimou that they were told that their evidence was not required, although they believed that their evidence was relevant to the prosecution of Eugene McGee.

   [203]On 22 April, shortly after the verdict, a further article appeared in “The Advertiser”, on the front page, regarding the Zisimou brothers, under the heading, “Death-drive witnesses not wanted”.  The first paragraph of the article commenced, “Damning evidence from key witnesses …”.  Mr Game SC submitted that publicity of this nature was a persistent theme in the period that followed, with the implication that their evidence was improperly concealed from the Jury.

   [204]The decision of the DPP not to call Mr Antony Zisimou and Mr John Zisimou in the Trial of Eugene McGee was one of the matters which was considered by the Royal Commissioner in the Kapunda Road Royal Commission.  They each gave evidence in the Royal Commission and their evidence was the subject of further publicity in the print media.  “The Advertiser” reported the evidence of Mr Antony Zisimou in a front page article on Saturday, 21 May 2005, under the headline; “The Lost Evidence.  Crucial McGee testimony unheard.”

   [205]On the same day, “The Advertiser” published another article regarding the evidence of Mr Antony Zisimou in the Royal Commission under the heading, “Silenced witness has his day in court”.  There was a further report in “The Advertiser” on 26 May 2005, regarding the Zisimou brothers and the evidence given in the Royal Commission under the heading, “Three brothers unite against Eugene McGee”.

   [206]It is not necessary to go into any further detail regarding the publicity involving Eugene McGee in the print media.  It is suffice [sic] to state that the publicity was extensive and over a long period of time in 2005.  Reports or articles in “The Advertiser” relating to, in particular, Eugene McGee, were on the front page of “The Advertiser” on approximately seventeen occasions.  On one view, some of the headlines which preceded a report or article could be described as sensational in nature.  As I mentioned earlier, some of the articles in the newspapers were adverse to Eugene McGee; some of the articles reported comments by others, which were disparaging and adverse to Eugene McGee, and some reports criticised the sentence as being inadequate.

   [207]Following the release of the Report by the Royal Commissioner on 15 July 2005, publicity regarding Eugene McGee continued in the print media.  There were reports relating to what was described as the “secret report”.  This was a reference to a short Report of the Royal Commissioner which was delivered to the Government, but not published.

   [208]On 27 August 2005, “The Advertiser” carried a report that each of the Applicants would be charged with conspiracy to pervert the course of justice.  This was followed by further reports regarding the current prosecution.  There were also other articles in “The Advertiser” associated with Eugene McGee during this period.  The publicity regarding Eugene McGee ceased in the print media towards the end of 2006, although there has been some reporting of the current proceedings seeking a stay of the prosecution.

   [209]During the extensive period in which the print media reported on matters relevant to Eugene McGee, the television news broadcasts, both commercial and non-commercial, carried regular reports regarding Eugene McGee’s Trial, sentence and the subsequent Royal Commission.  Some of those reports carried comments from others adverse to Eugene McGee.  Issues arising from the Trial and the Royal Commission were discussed in some length on an ABC television program called “Stateline”.

   [210]During this period, there were other sources of publicity regarding the Eugene McGee Trial and its aftermath.  Reporting of events and discussion took place on radio.  There were websites such as “ABC Online”, which carried stories arising from the Trial and the Royal Commission.  The transcript of the Trial of Eugene McGee, the transcript of the Kapunda Road Royal Commission and the Report of the Royal Commissioner have been available on a website.  There is also a website for an organisation called “Wheels of Justice”, in which there is a page specifically devoted to the Eugene McGee case, in which copies of some media reports can be found.

   [211]It is clear from all of this evidence that the publicity in South Australia regarding the Eugene McGee Trial and its aftermath, including the Royal Commission, has been extensive.  There was publicity in the print media which was adverse to Eugene McGee.  Both his conduct after the collision and his character was the subject of disparaging remarks.

   [212]As I mentioned earlier, there was some publicity in the media in which the sentence was criticised as “manifestly inadequate”.  Criticism of the investigation of the collision, and the conduct of the Trial of Eugene McGee, have been aired in the media.  Indeed, the Police investigation of the collision was the subject of criticism by the Royal Commissioner, which criticism received publicity in the media.  However, it is significant to note that the Royal Commissioner’s finding that Eugene McGee did not receive favourable treatment from the Police also received publicity through the media.

   (iii)    Statements by the Premier and the Attorney-General

   [213]I mentioned earlier that the Applicants submit that adverse statements by the Premier of South Australia, Mr Rann, and the Attorney-General, Mr Atkinson, published in the media, have contributed to making the circumstances in the case so extreme or singular that the prosecution should be stayed because of the significant or substantial risk that they will not receive a fair trial.

   [214]I mentioned earlier that the Premier made some disparaging remarks about Eugene McGee on 28 April 2005, after the sentence was pronounced, and those comments were published in television news broadcasts and “The Advertiser” the following day.  These remarks by the Premier were subsequently mentioned, on other occasions, in the print media and on television.

   [215]The Attorney-General’s comments arose in the course of addressing a bike rally sponsored by the organisation, “Wheels of Justice”.  It was reported in the “Sunday Mail” that the Attorney-General had ridden in the rally.  It was also reported that he addressed the rally in front of Parliament House.  The report indicated that there were about four thousand cyclists involved in the rally.  The article in the “Sunday Mail” quoted the Attorney-General as saying:

   As Attorney-General I would like to apologise to Di Gilchrist and the Humphrey family for the outcome of our justice system.  For that person to pay so little by way of penalty is sickening.  We know as a government we can do more, a lot more.

   This apology was also reported in some television news broadcasts.

   Ground 1

6. Mr Game SC, counsel for Mr E McGee, puts the first ground of appeal on alternative bases.

7. Mr Game submits that the Chief Judge made a finding or findings in the course of the sentencing proceedings that the DPP cannot now controvert.  He relies on what has been described as the principle of incontrovertibility, considered by the High Court in The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635.

8. In the alternative, Mr Game submits that even if the DPP is entitled, as a matter of law, to controvert those findings, in all the circumstances to do so would amount to such unfairness or oppression as to call for a stay of the proceedings, or that a stay is called for when this matter is considered in conjunction with the other matters argued on appeal.

9. The relevant findings by the Chief Judge were not identified precisely in the course of submissions.  I have set out above the relevant part of the sentencing remarks.  I take the findings in question to be the finding that the collision with Mr Humphrey triggered a dissociative state in Mr McGee; that the dissociative state interfered with his capacity to behave in an “ordinary and appropriate way”; that the state was consistent with him being unable to stop and face the consequences of the impact; that the dissociative state lasted for some time, and that the dissociative state could cause partial amnesia in relation to events between the time of the impact and sometime later that evening.

10. The third finding cannot be taken literally.  Mr McGee pleaded guilty to the charges of failing to stop and failing to render assistance.  By those pleas of guilty he admitted that he acted in a conscious and voluntary manner.   A defence of mental impairment was not raised.  His legal responsibility for his conduct was not challenged.

11. The Chief Judge’s comment that the existence of a dissociative state “...cannot excuse what you did, but it provides some explanation of conduct that appears to be completely out of character...” indicates that his finding in relation to the dissociative state was no more than that the dissociative state was a factor, perhaps a significant one, in Mr McGee’s decision not to stop and not to render assistance.  The Chief Judge’s findings, and other parts of his sentencing remarks, indicate that after the impact Mr McGee behaved in a manner consistent with a conclusion that while his judgment was impaired or disturbed, he was nevertheless aware of what he was doing and was responsible in law for his actions.

12. I must say, in relation to this aspect of the case, that I have some concerns about the factual basis upon which the issue has been argued.  It was argued at a fairly high level of generality.  Neither party identified to this Court in any detail the evidence to be led at trial.  But, in all the circumstances, it does not appear necessary to descend to the details of the evidence that will be led at trial.

13. Before grappling with the substance of the submission by Mr Game, I observe at this stage that there is no apparent need for the DPP to challenge the relevant findings.  In my opinion they are not inconsistent with a finding that Mr E McGee, over a period of an hour or two after the impact, made an arrangement with his brother for his brother to help him to avoid the police, to avoid being required to submit to a breath analysis, and to avoid his state of sobriety being assessed.  A finding that his judgment was impaired by the dissociative state, and that he was acting in a manner in which he would not ordinarily act, is not inconsistent with a finding or findings for which the DPP would contend on the trial of the charge in question.  I do not suggest that that is the end of the matter, and I will return to this point.

14. In any event, before the District Court Judge the DPP has indicated that the prosecution case will include evidence on which the DPP will seek a finding (by the jury) that would contradict the findings of the Chief Judge:  McGee No 2 at [160]-[161].

15. I have already referred to the alternative manner in which Mr Game puts the relevant submission.  He submits that before the Chief Judge the DPP sought a finding that a circumstance of aggravation was that Mr E McGee deliberately drove on after the impact, having made a calculated (although more or less instantaneous) decision to evade and to avoid the police.  On this basis the DPP argued that a sentence of imprisonment was appropriate.  The Chief Judge made findings favourable to Mr E McGee on this issue.  It is on that basis that he appears to have escaped imprisonment.  Now a new charge is brought, and in support of that charge the DPP intends to establish the same circumstances of aggravation that were not made out before the Chief Judge.  Mr Game submits that to do so, bearing in mind that for a second time Mr E McGee is in jeopardy of punishment and imprisonment, is unfair and oppressive.

16. The principle invoked by Mr Game was considered at some length by the High Court in Carroll.  In brief, in that case Mr Carroll was charged with the murder of Ms K.  At trial, he denied that he had killed her.  It does not appear to have been disputed that someone had murdered her.  Mr Carroll was found guilty by the jury.  On appeal, the conviction was quashed on the ground that it was not open to a properly instructed jury to find beyond reasonable doubt that Mr Carroll was guilty.  The Court directed that a verdict of acquittal be entered.  The Court of Appeal also held that the jury verdict was unsafe and unsatisfactory.  Some years later Mr Carroll was indicted for perjury. He was charged for giving, in judicial proceedings (the murder trial) knowingly false testimony to the effect that he did not kill Ms K.  He was found guilty.  He appealed.  On appeal the Court of Appeal of Queensland held that the trial should have been stayed as an abuse of process.  The prosecution applied for special leave to appeal to the High Court.  The Court granted special leave to appeal, but dismissed the appeal.

17. The application to the High Court was argued on the basis that the issue was whether there were grounds for the exercise of a discretion to stay Mr Carroll’s trial on the charge of perjury, as an abuse of process. That argument invoked what has been called the principle of incontrovertibility, that is, that the acquittal on the earlier charge of murder was incontrovertible, and that having regard to the issues at trial on the charge of perjury, the trial of that charge would controvert the acquittal for the earlier murder: see Gleeson CJ and Hayne J at [6].

1. For the purposes of the plea it was common ground that, in the particular circumstances, a plea in bar was not available to Mr Carroll. 

2. Gleeson CJ and Hayne J began their consideration of the question of incontrovertibility as follows:

   [35]Analysis by reference to rules of preclusion does not lead to the conclusion that the respondent cannot be prosecuted for perjury. Indeed, the premise for invoking the court's discretion to stay the prosecution for perjury appears to be an acceptance by the respondent that the prosecution was not precluded. Rather, the application for stay is to be understood as being based on what was said in Rogers to be "the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct". It is this, rather than now rejected notions of the applicability in criminal cases of the principles of issue estoppel, which was said to warrant staying the prosecution of the respondent for perjury. Attention must first be directed to the ambit and effect of the proposition that the verdict of acquittal at the first trial is to be treated as incontrovertibly correct. Only then will it emerge whether it is necessary to consider the nature or quality of the evidence that it is sought to adduce on the second trial, in this case, for perjury.

   [36]   On its face the principle stated in Rogers appears closely related to principles of preclusion. The reference to incontrovertibility makes that plain. On examination, however, the principle may be thought to find its origins in rather broader and less precise notions than those which have been developed in the rules of preclusion. First, the principle is said to apply because issue estoppel has no place in the criminal law. Secondly, it takes the form it does because autrefois acquit, although analogous to and founded in the same principles as issue estoppel, has a different and further operation than issue estoppel would have.

   Footnotes omitted, emphasis in original

   Their Honours then reasoned as follows:

   [40] There are cases where a charge of an offence would be manifestly inconsistent on the facts with a previous acquittal, even though no plea of autrefois acquit is available. Since, in most cases of trial by jury, it will not be known why the accused was acquitted, and in many cases the reason may simply be that the jury had a doubt about whether the prosecution had established some element of the offence, the inconsistency, if it exists, will appear from a comparison of the elements of the new charge with the verdict of not guilty of the previous charge, understood in the light of the issues at the first trial.

   [41]   The present case provides an example. The only element of the offence of murder that was in issue at the original trial of the respondent was whether he killed Deidre Kennedy. The perjury alleged at the second trial consisted of the respondent's falsely denying, on oath, that he killed Deidre Kennedy. The falsity of the testimony was claimed to be that he said he did not kill Deidre Kennedy whereas in truth he killed her. It was accepted in argument in this Court that, although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child.

   [42]   In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely upon the respondent's sworn denial of guilt. The alleged false testimony consisted of a negative answer to a question, asked by his counsel, whether the respondent killed the child. The fact that the question asked was whether the respondent killed Deidre Kennedy rather than whether he murdered her, or whether he was guilty, is immaterial. Discretionary decisions do not turn upon such differences. Once such manifest inconsistency appeared, then the case for a stay of proceedings was irresistible.

   They added at [44]:

   [44]   The inconsistency between the charge of perjury and the acquittal of murder was direct and plain. The laying of the charge of perjury, solely on the basis of the respondent's sworn denial of guilt, for the evident purpose of establishing his guilt of murder, was an abuse of process regardless of the cogency and weight of the further evidence that was said to be available.

   Their Honours made it clear that they were not deciding the limits of the principle about incontrovertibility.  They said:

   [45]The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is not necessary in this case to attempt to decide what may be the limits of the principle about incontrovertibility and, in any event, it would be unwise to attempt to do so. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial. (Hence the decisions about what standard of proof is to be applied in civil cases in which a crime is alleged.)

   Footnote omitted

3. Gaudron and Gummow JJ began their consideration of their issue with the following general remarks:

   [84]   In Australia, "double jeopardy" is not an independent doctrine of avoidance, which, for example, would found a demurrer to a count or a stay application.  The law's aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events reflects a broader precept or value. This finds diverse application through doctrines of estoppel and merger, in the pleas of autrefois acquit and autrefois convict, and in principles respecting abuse of process, the admissibility of evidence and sentencing. In some instances, as here, the precept finds expression in principles of statutory construction. An illustration is the settled rule that a general statutory provision should not ordinarily be construed as conferring or extending a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language.

   Footnotes omitted

4. They summarised the “interests at stake”, or the underlying principles in question, as follows:

   [86] The interests at stake in a case such as the present were discussed in Rogers v The Queen and in Pearce v The Queen. They touch upon matters fundamental to the structure and operation of the legal system and to the nature of judicial power. First, there is the public interest in concluding litigation through judicial determinations which are final, binding and conclusive. Secondly, there is the need for orders and other solemn acts of the courts (unless set aside or quashed) to be treated as incontrovertibly correct. This reduces the scope for conflicting judicial decisions, which would tend to bring the administration of justice into disrepute. Thirdly, there is the interest of the individual in not being twice vexed for one and the same cause. Finally, there is the principle that a cause of action is changed by judgment recovered in a court of record into a matter of record, which is of a higher nature.

   Footnotes omitted

5. They added at [93] that they agreed with the following observation by Gleeson CJ and Hayne J at [47]:

   [47] Whether Rogers or Garrett should be understood as standing for some wider proposition need not be decided, although it may be accepted that there may be cases where a second prosecution is argued to be oppressive and an abuse of process, even though there is no direct inconsistency between the new charge and the earlier verdict. The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined. ...

6. The other member of the Court was McHugh J.  He identified the relevant principles as follows:

   [130] Yet if the prosecution can bring further and different charges arising out of facts all or many of which were before the court in an earlier prosecution, the accused is as effectively harassed as if he was being tried again on the same charge. Similarly, if other proceedings could be brought that had the tendency to contradict or undermine the effect of an acquittal, an acquitted person might effectively lose the benefit of the acquittal and the full protection of the double jeopardy principle. Plainly, the formal pleas of autrefois convict or autrefois acquit were inadequate to give effect to the full rationale of the double jeopardy rule and the policy behind it in some cases where the prosecution brought successive proceedings against an accused person. The pleas of autrefois convict and autrefois acquit were confined to successive charges based on the same or substantially the same facts. They do not protect the accused against prosecutorial harassment in many cases that, in substance but not in form, offend the double jeopardy principle.

   [131] To remedy these and other defects in the application of the double jeopardy principle, the common law courts have applied other weapons in the judicial armoury to make the double jeopardy principle more effective. In particular, they now intervene to protect the accused by staying proceedings that they consider are an abuse of their processes. The common law courts have done so by utilising their inherent jurisdiction to protect their processes. …

   He also concluded that a conviction for the offence of perjury would “overturn or tend to overturn or undermine…” the acquittal on the earlier murder charge: at [147].

7. It is apparent that in Carroll the members of the High Court did not attempt to set limits to the application of the principle that they applied.  It is important to bear in mind that they were considering the power of the Court to stay proceedings because they are oppressive and an abuse of process, and to bear in mind that the circumstances that may constitute oppression or an abuse of process will vary and cannot be neatly packaged or summarised.  But it remains the case that the oppression and abuse of process identified by each of their Honours lay in the circumstance that the prosecution for perjury, in the particular circumstances, controverted the earlier verdict of acquittal.  And, on a careful reading of their reasons, there is nothing said by any of their Honours that suggests that the principle that they were applying reaches beyond a situation in which a verdict is contravened or challenged.  In saying that I have not overlooked the fact that the principles on which they drew have application, or potential application, not only to the contravention of a verdict of acquittal, but also to multiple prosecutions on facts already the subject of an acquittal or of a conviction. And, as their Honours noted, in Rogersv The Queen (1994) 181 CLR 251 the principle was applied to a finding made by a trial judge at trial that records of interview were not made voluntarily. The Judge excluded those records of interview, and ultimately verdicts of acquittal were returned. On a later trial the prosecution tendered in evidence those same records of interview, but the High Court held that the tender would be an abuse of process because the prosecution was seeking to relitigate the finding made by the trial Judge, and to secure a ruling that the records of interview should be admitted on the basis that they were not shown to have been made involuntarily: Carroll at [46] Gleeson CJ and Hayne J. But it is significant that the finding in question is a finding made in the course of a trial, and was a finding that appears to have been treated as linked to the ultimate acquittal.

8. Mr Game quite properly pointed out that the observations made by the members of the High Court in Carroll are not to be treated as exhaustive of the reach of the principle of incontrovertibility.  He properly pointed out that there is nothing inherent in the manner in which the principle is being described that prevents its application to a finding such as the finding made by the Chief Judge in the course of sentencing proceedings.

9. However, to my mind it is significant that there is no hint in Carroll that the principle relied upon applies in sentencing proceedings. On that point I should add that in the course of their reasons Gaudron and Gummow JJ at [84] (see above) referred to the fact that the law’s aversion to placing an individual twice in jeopardy of criminal punishment for the one incident or series of events, found its application in various situations including “sentencing”. Their Honours there referred to the decision in Pearce v The Queen (1998) 194 CLR 610 at [34]-[49], [69] and [119]-[121]. I have considered each of those passages and none of them bear on findings made in the course of sentencing proceedings. They relate to questions of double punishment and successive prosecution for what is in substance the one offence, or arising from the same facts.

10. Mr Game also referred the Court to the more recent High Court decision in Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328. He referred in particular to the reasons of Gummow and Hayne JJ, and to the following statement at [41]:

    [41] "Double jeopardy" is an expression that is not always used with a single meaning. It is an expression used in relation to several different stages of the process of criminal justice: prosecution, conviction and punishment. It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning. The essence of these values is most often seen as captured in three maxims: interest reipublicae ut sit finis litium (it is in society's interest that there be an end to litigation), res judicata pro veritate accipitur (what is adjudicated is taken as the truth), and nemo debet bis vexari pro una et eadem causa (no one should twice be vexed for one and the same cause). It is these values that underpin the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal. It is these values that inform the rules governing successive prosecutions – rules which find their origins in the pleas in bar of autrefois convict and autrefois acquit but now have wider application than those pleas in bar.

    Footnote omitted

11. He emphasised that these principles are not to be given a “narrow operation” as their Honours themselves remarked at [52]. However, having carefully considered the reasons in Island Maritime Ltd, I have been unable to find anything that suggests that the relevant principles are to be applied to a finding made in sentencing proceedings.  But, once again, I emphasise that that is not conclusive, because to so reason would be to treat their Honours as doing the very thing they said they were not doing – setting the limits of the application of the principle.

12. The question of whether a finding made in sentencing proceedings can be controverted by the prosecution in later proceedings was considered by the Court of Appeal of Queensland in K; Ex parte Attorney-General (Qld) [2002] QCA 260; (2002) 132 A Crim R 108. In that case K was convicted on a number of counts relating to assaulting and injuring her infant son. In earlier proceedings she had pleaded guilty to offences involving harm to another child. She was sentenced for the earlier offences on the basis that the injuries were not caused intentionally. At the trial under consideration by the Court of Appeal the prosecution had led evidence with a view to proving that the earlier injuries to the other child were deliberate. The Court of Appeal held that the evidence was admissible. McPherson JA, with whom the other members of the Court agreed, said at [18]–[19]:

    [18]   Once his Honour Noud DCJ accepted the plea of guilty by K on 16 April 1999, it operated as a conviction or judgment of her guilt in respect of the charges to which she pleaded: Maxwell (1996) 184 CLR 501 at 508; 87 A Crim R 180 at 184. The same cannot, however, be said of the facts on which the sentencing process took place. In any event, in adducing evidence at the S trial of the injuries inflicted on her daughter and of their likely cause, the prosecution was not seeking to set aside that conviction or to increase the penalty imposed for the offence for which K was sentenced on that occasion; which is not to say that, if misrepresentation were proved to have taken place at the sentencing hearing, it would not have been open to the Crown to set aside the sentence and substitute another and heavier one: see Beldan; Ex parte A-G (Qld) [1986] 2 Qd R 179; (1986) 21 A Crim R 159, recently applied in DPP (Vic) v Burgess [2001] 3 VR 363.

    [19]   The offence to which K pleaded was occasioning bodily harm to her daughter, which is an offence into which intention does not enter as an ingredient. Complete absence of intention to cause harm is, however, capable of going some way in mitigation of the offence when it comes to imposing a sentence. The fact that the Crown was induced or disposed to accept K's explanation for her daughter's injuries for the purpose of sentencing in April 1999 avoided the need for an inquiry or determination by the court to establish the truth of the matter. It was simply an assumption which, in the absence of cogent evidence to the contrary, the Crown was prepared to accept, and on which the court acted, on that occasion for the purpose of sentencing K following her plea of guilty. It represented no obstacle to proof by the prosecution at the S trial that that assumption, as it turned out, may have been unfounded in fact or untrue. In my opinion, the similar fact evidence was both admissible and rightly admitted at the trial of K. Had it been rejected, a serious injustice might have been done to D. Ground 1 of the appeal by K therefore fails.

    It appears that the submission presently advanced was not advanced before the Court of Appeal.  McPherson JA refers in his reasons to Carroll, but his reference is to the decision of the trial Judge which decision was ultimately reversed on appeal.

13. The application of the principle of incontrovertibility to findings made in sentencing proceedings was also considered by the New South Wales Court of Criminal Appeal in Gilham v The Queen [2007] NSWCCA 323; (2007) 178 A Crim R 72. The facts were concisely stated by Spigelman CJ as follows:

    [1]This is an application for leave to appeal, pursuant to s 5F of the Criminal Appeal Act 1912 (NSW), from an interlocutory judgment of Howie J refusing an application by the applicant for a stay of an ex-officio indictment in which the Appellant is charged with the murder of his parents.

    [2]On 28 August 1993 the applicant’s mother, father and brother were stabbed to death.  The next day police charged the applicant with the murder of his brother.  On 5 April 1995, the accused pleaded guilty to a charge of manslaughter of his brother, which plea was accepted in full discharge of the indictment for murder.  The basis of the plea of guilty was that the applicant did kill his brother, but that occurred as a result of provocation resulting from the fact that his brother had killed their parents.

    [3]The principal issue in this case arises from the inconsistency between the new indictment on charges that the applicant killed both his parents and the basis of the plea of guilty to the charge of manslaughter of his brother.

14. The decision of the Court was that the appeal should be dismissed.

15. Their Honours’ reasons contain extensive consideration of the principle of incontrovertibility, the decision in Connelly v Director of Public Prosecutions [1964] AC 1254, and other relevant decisions. For my purposes it is not necessary to deal with what their Honours said, as most of what they said was directed to the circumstance that the inconsistency said to arise was an inconsistency with the basis of the plea of guilty by Mr Gilham to the manslaughter of his brother. On certain grounds argued, there was a difference of approach as between Spigelman CJ and Hulme J on the one hand, and McClellan CJ at CL, Hidden J and Latham J. Once again, that difference is not relevant for present purposes, and did not prevent all five members of the Court agreeing that the appeal should be dismissed.

1. Spigelman CJ made only passing reference to the fact that at the first trial, the Judge who sentenced Mr Gilham had sentenced him on the basis that he was provoked by finding that his brother had killed his parents.  His Honour remarked that he did not regard those findings as “pertinent findings”, referring to the decision of the Queensland Court of Criminal Appeal in K.

2. However, McClellan CJ at CL, with whom Hidden J and Latham J agreed, did consider the significance of the findings made by the sentencing Judge when sentencing Mr Gilham for the manslaughter of his brother.  His Honour said:

   [205]Although sentencing proceedings require the sentencing judge to determine the relevant facts beyond reasonable doubt, it is for a limited purpose.  The available evidence will either have been tendered at the trial, in which case the jury will have returned a verdict, or will be tendered at the sentencing hearing following the acceptance by the prosecution of a plea.  In either case the decision making function of the judge is confined.  If there has been a trial the judge must make findings consistent with the jury’s verdict.  If a plea has been entered, but the relevant facts are in dispute, the findings must nevertheless accord with the plea.  If the facts are agreed the judge’s determination will be confined by that agreement.

   [206]Although the limits of the principle of incontrovertibility have not been settled, informed by the values to which I have referred, I see no reason why facts “found” in the sentencing process should be elevated so that they cannot be controverted in other proceedings.  Those facts are not “found” for the purpose of a finding of guilt or innocence but rather for the purpose of establishing the culpability of an offender where a jury has found him to be guilty of the offence charged or he has acknowledged his guilt of that offence by entering a plea.

   [207]The view that the incontrovertibility principle does not operate in relation to findings of fact in the sentencing process is most readily accepted where, as in the present case, the facts are found without a contested hearing.  In that circumstance the court has not been asked to determine between competing versions of events or make its own finding.  The role of the judge has been confined to acceptance of the evidence agreed by both parties.

   [208]Although it is no longer a relevant consideration this analysis confirms the difficulties which the doctrine of issue estoppel would give rise to if adopted in criminal proceedings.  A concession by the Crown that it was the brother who killed the parents may found an estoppel in civil proceedings.  However, criminal proceedings which include the sentencing process have a distinct character requiring the development of a separate body of principles.  The view which I have come to is consistent with the decision of the Court of Appeal in Queensland in R v K; Ex parte Attorney General (QLD) (2002) 132 A Crim R 108.

3. His Honour’s opinion that different principles apply to sentencing proceedings gains some support from the following observations by Gleeson CJ, Gaudron, Hayne and Callinan JJ in The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [25] where their Honours said:

   [25]   Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.)

   Footnote omitted

4. I agree with the approach taken by McClellan CJ.  The principle of incontrovertibility, as explained by the High Court in Carroll and other cases, is not a narrow one.  Its application to a situation in which a verdict of guilty or not guilty is said to be controverted, may differ from its application to a situation in which the issue is whether multiple prosecutions arising from the same circumstances are said to be an abuse of process.  In the present case Mr Game’s submission focuses on the fact that the prosecution proposes to controvert a finding made in sentencing proceedings.  In my opinion the thread that runs through the reasons in Carroll is the notion of inconsistency between a verdict in earlier proceedings and an assertion made in later proceedings.  While in cases such as Rogers the principle may protect a finding of fact, the underlying notion appears to be the protection or upholding of an earlier verdict.  No such consideration arises in the present case.  Nor is this a case of impermissible multiple prosecutions arising from the same set of circumstances.

5. For those reasons, while recognising that my decision is not determined by existing High Court authority, I agree with McClellan CJ that the relevant principle should not apply to a finding made in a sentencing hearing.  However, I emphasise that I put to one side a finding made in a sentencing hearing which is said to be dictated by the verdict of a jury.  And I recognise also that there might be particular circumstances, not present here, in which a change of approach by the prosecution could give rise to an abuse of process.  In the present case the only circumstance relied upon is that the finding is to be controverted, and that it is a finding that was opposed by the prosecution, and that exposed Mr E McGee to the possibility of a sentence of imprisonment.

6. Having regard to the nature of sentencing proceedings, I consider that a number of practical difficulties would arise if findings made in such proceedings could not be controverted.  As was pointed out in Olbrich (above), there is no joinder of issue in sentencing proceedings in the way in which there is on a trial.  Sentencing proceedings are usually conducted with less formality than a trial.  Specific findings of fact are not always made.  There can be no appeal, as such, against a finding of fact in the course of sentencing, the ultimate issue being whether a sentence is manifestly excessive or inadequate in all the circumstances.  To accept Mr Game’s submission would be, in my opinion, to accept that issue estoppel arises in sentencing proceedings, an approach rejected by the High Court:  see Carroll at [36] above.

7. For those reasons I reject the submission by Mr Game that it is not open to the prosecution, in the proceedings now before the Court to controvert the findings made by the Chief Judge.  As I said earlier, on my understanding of the case it is not necessary for the prosecution to do so, but as the prosecution has indicated an intention to do so it is appropriate to deal with the submission by Mr Game.

8. As to his alternative submission under this head, I do not consider that controverting the findings gives rise to unfairness or oppression.  In saying this I recognise that the finding by the Chief Judge was based on evidence led before him, and was made on an issue that was contested between the prosecution and the defence.  I recognise that the finding was a material matter in considering whether Mr E McGee should be imprisoned.  But I do not consider it to be unfair that that issue should be re-litigated in other proceedings, even though they arise out of the same circumstances.  If, as I consider to be the case, the DPP is at liberty as a matter of law to relitigate the issue, the fact that that is to happen cannot amount to oppression or unfairness calling for a stay.  I find no other matter pointing to that result.  In particular, the fact that a further charge has been brought against Mr E McGee does not invoke considerations of double jeopardy or oppression.  The argument is based not on the fact of the further charge, but on the finding made in the sentencing proceedings.

9. It follows that in my opinion ground one fails.

10. As I noted earlier, Mr Game argued that all factors must be taken into account at the end of the day in considering whether, in all of the circumstances, the further proceedings should be stayed as an abuse of process.  I accept that submission as a matter of principle.  However, I should make it clear that in my opinion there is little to go into the scales under the heading of ground one.  The circumstance that the DPP, on the charge now before the Court, will lead evidence controverting the findings by the Chief Judge, and the circumstance that those findings were material when deciding whether Mr E McGee should be imprisoned, in my opinion provides little to support a finding of oppression or unfairness.

    Ground 3

11. Mr Game submits that the prosecution is bound to fail, and so it is an abuse of process to proceed with it.  This submission is put on two bases.  In addition, Mr Game submits that the matters raised under this head must also be considered along with the other grounds.  That I will do in due course.

12. The first basis of the submission is that the evidence to be relied upon by the DPP cannot prove the charge. A jury could never be satisfied beyond reasonable doubt that the McGees entered into an agreement as alleged in the particulars (see above). Ms Powell QC, for Mr C McGee, supports this submission and put submissions relating to the distinct position of her client. The second basis of the submission is that the circumstances relied upon by the DPP cannot establish an offence against s 256 of the CLCA. That section provides:

    256—Attempt to obstruct or pervert course of justice or due administration of law

    (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.

    Penalty: Imprisonment for 4 years.

    (2)     Where—

    (a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but

    (b)the court is satisfied that the accused is guilty of an offence against subsection (1),

    the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).

    Mr Game submits that the conduct the subject of the charge is made punishable by another provision of Part 7 of the CLCA (the part that contains s 256), and so the attempt to obstruct or pervert the course of justice that is alleged is an attempt that is “otherwise dealt with” in a provision of Part 7.

13. I repeat the concern that I expressed earlier, that the factual basis of the submission is not as clear as it might be.  The submission was put by reference to the manner in which the DPP has indicated it will put its case, with occasional references to aspects of the evidence that would be led.  By this I mean the declarations filed for the purposes of the committal proceedings, which declarations were tendered before the Judge.  The parties proceeded on the basis that it was not necessary to examine the evidence in any detail, perhaps because many of the facts were not in dispute, the real issue being the inferences to be drawn from them.  I take the same approach.

14. Criminal proceedings should be stayed at the outset on the basis that they are bound to fail only if it is clear that the prosecution case will inevitably fail. 

15. In Walton v Gardiner (1992-1993) 177 CLR 378 the High Court considered the power of a court to stay proceedings as an abuse of process. It is not necessary to go into the details of the case. The majority (Mason CJ, Deane and Dawson JJ) said at 392-393:

    The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. …

    Footnote omitted

    Brennan J dissented in the result.  Relevant to the point now under consideration he said that proceedings were incapable of serving a legitimate purpose if they would “inevitably and manifestly fail”:  at 411.

16. The matter was considered in some detail by the Appeal Division of the Supreme Court of Victoria in R v Smith [1995] 1 VR 10. In a helpful and instructive passage, Brooking J said at 14:

    It is not a use of the process of the courts for a purpose alien to the administration of justice under law (Williams v Spautz (1992) 174 CLR 509 at 520) to make an unsuccessful claim if all that can be said is that the claim failed because the plaintiff or prosecution did not make out a case to answer. Process is not abused merely because it is employed without success. The very function of the courts is to hear and determine claims, sound and unsound, and to filter out those which are unsound, not (save in extreme cases, where a stay or other summary order may be appropriate) by declining to deal with them in the usual way, but by hearing and determining them. The same fundamental doctrines govern the rules of pleading and procedure in civil and criminal cases and the court has inherent power to see that its process is not abused by a civil or criminal proceeding without reasonable grounds: Connelly v Director of Public Prosecutions [1964] AC 1254 at 1355-6 per Lord Devlin. Time and again it has been said that it is only in exceptional circumstances that a proceeding, civil or criminal, will be stayed on the ground that it constitutes an abuse of process …

    His Honour went on to say at 15:

    Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail.  So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ at 393 that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. This formulation does not differ in substance from that of Brennan J at 411 (“proceedings which will inevitably and manifestly fail”).

    Byrne J took a similar approach.  He said at 28:

    To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present.  It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but “clearly foredoomed to fail”: or in the words of Brennan J the vice is the institution of proceedings “which will inevitably and manifestly fail”.  …

    He also added some helpful observations, saying (at 28):

    The wisdom of a decision to prosecute or to prosecute for a specific offence is not, properly speaking, a matter for the court:  Barton v R (1980) 147 CLR 75. Furthermore, the decision to prosecute will normally have been made only after a preliminary determination of a magistrate following a committal and a re-assessment of the evidence by an experienced prosecutor upon whom lies special responsibility to ensure that proceedings are instituted only where there is a case apparent on the material. The court traditionally respects the judgment of the Crown in the conduct of the prosecution: R v Apostilides (1984) 154 CLR 563. This is, of course, not to say that the court should abdicate its responsibility to the prosecutor, but rather that regard should be had to these factors in determining the fate of a stay of application.

    Eames J applied the same test at 40.

17. Courts in other jurisdictions have taken the same approach, applying the principle stated by the majority in Walton and adopting the approach taken in Smith:  see R v Leece (1996) 65 FCR 544 at 555; (1986) 86 A Crim R 494 at 504, William el Azzi [2001] NSWCCA 397, (2001) 125 A Crim R 113 at 124; Kok Cheng Tan [2002] WASC 42; (2002) 128 A Crim R 286 at 294; R v Petroulias (No 1) [2006] NSWSC 788; (2006) 177 A Crim R 153 at [71]-[79].

18. The reason why the test for a stay of proceedings on this basis must be a stringent one is apparent.  If it were not, the Court would be interfering with the decision of the DPP to institute proceedings, and would begin to assume the role of a supervisory authority in relation to those decisions.  It is for the DPP to decide whether a charge should be laid, and what charge should be laid.  It is the function of the trial judge to preside over that trial, the jury returning its verdict on the charges (unless it is a trial by judge alone).  The trial of a charge is not to be precluded because, in the opinion of the presiding judge, the case is a weak one, or even because in the opinion of the trial judge the case is likely to fail.  As I said, the function of the Court is to hear the charge, unless there are truly exceptional circumstances that warrant the Court staying the proceedings at the outset.

19. Clearly enough, when applying the test in question, the Court must consider the prosecution case at its best and highest, on the basis that its witnesses are accepted as witnesses of truth (unless there are exceptional circumstances warranting a different approach), and on the basis that all inferences favourable to the prosecution case will be drawn if they can be drawn.  The test that must be met for the grant of a stay is necessarily a stricter test than will apply when the Court considers a submission that there is no case to answer.  That test was summarised by King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at 5 where King CJ said:

    It follows from the principles as formulated in Bilick (supra) in connection with circumstantial cases, that it is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. It is not his concern that any verdict of guilty might be set aside by the Court of Criminal Appeal as unsafe. Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410; Thorp v Abbotto (1992) 34 FCR 366. He is concerned only with whether a reasonable mind could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence.

    There was some criticism before us of the concept of reasonableness in the Bilick test and reference was made to R v R (1991) 57 A Crim R 39. I do not read that case as deciding that there can be a case to answer on circumstantial evidence which is incapable of producing in a reasonable mind a conviction of guilt beyond reasonable doubt. …

20. On an application of the kind now before the Court, the Court must be mindful of the fact that all it has before it are the written depositions.  No witness has given evidence.

21. The fact that the jury might ultimately decide that the circumstantial evidence in the present case does not exclude hypotheses consistent with innocence is not enough for the submission to succeed.  To deal with a submission on that basis is not an appropriate exercise of the Court’s power.  The prosecution should proceed even though the jury could or might decide that all such hypotheses were excluded, and the Court would stay the proceedings only if satisfied that the jury so finding was inevitable.  And, as I have said, this is to be considered not by the Court weighing a quality of the evidence, but on the basis that evidence will be accepted unless patently incredible, and on the basis that all inferences favourable to the prosecution case that could be drawn will be drawn.

1. The submissions of the appellants on appeal must be approached with these principles in mind.

   Elements of the Offence of Conspiracy to Pervert the Course of Justice

2. It is convenient first to set out again the charge against the appellants as finally amended.

   Statement of Offence

   Conspiracy to Attempt to Pervert the Course of Justice. (Common Law and Section 256(1) of the Criminal Law Consolidation Act, 1935)

   Particulars of Offence

   Craig Patrick McGee and Eugene Norman McGee, on the 30^th day of November 2003, at Kapunda or other places, conspired to attempt to pervert the course of justice insofar as they agreed to frustrate, deflect or prevent members of the South Australian Police Force from investigating or adducing evidence of the blood alcohol reading and sobriety of Eugene McGee at the time of the collision between a Mitsubishi Pajero motor vehicle driven by Eugene McGee and a bicycle ridden by Ian Humphrey that occurred on the Kapunda to Gawler Road at approximately 5.05pm on the 30^th of November 2003 by preventing or impeding members of the South Australian Police Force, and in particular those charged with the investigation into the circumstances of the collision, from making contact with Eugene McGee for a period of hours after the collision.

3. It is also convenient to repeat s 256 of the CLCA:

   256—Attempt to obstruct or pervert course of justice or due administration of law

   (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.

   Penalty: Imprisonment for 4 years.

   (2)     Where—

   (a)a person charged with an offence against any of the preceding provisions of this Part is found not guilty of the offence charged; but

   (b)the court is satisfied that the accused is guilty of an offence against subsection (1),

   the court may, if the maximum penalty prescribed for an offence against subsection (1) is the same as or less than the maximum penalty prescribed for the offence charged, find the accused guilty of an offence against subsection (1).

4. The offence of attempting to pervert the course of justice is the doing of some act which has a tendency to, and is intended to, pervert the administration of public justice.[57]

   [57]   Meissner v The Queen (1995) 184 CLR 132 at 148 per Deane J.

5. Relying on R v Rogerson[58] the respondent submitted that the elements of the offence of conspiracy to attempt to pervert the course of justice of the kind alleged against the appellants are:

   (i)     two or more people enter into an agreement to do an act or series of acts;

   (ii)    with the intention thereby of perverting the course of justice; and

   (iii)the act or series of acts intended, if done pursuant to the conspiracy in the circumstances contemplated by the conspirators, would have the tendency to pervert the course of justice.

   I am content to adopt that as a statement of the relevant elements, save only that in this case the prosecution will also have to establish that the “manner” of the perverting of the course of justice alleged is “not otherwise dealt with in the preceding provisions” of Part 7 of the CLCA.[59]

   [58] (1992) 174 CLR 268 at 279-281 per Brennan and Toohey JJ. See also Meissner v The Queen (1995) 184 CLR 132 at 140-141; Healy v The Queen (1995) 15 WAR 104.

   [59]   Criminal Law Consolidation Act 1935 (SA) s256(1).

6. Leaving that element to one side, that means that in the circumstances of the amended information laid against the appellants, the prosecution must establish, first, that on the evening of 30 November 2003 the appellants entered into an agreement; secondly, that their agreement was to frustrate, deflect or prevent the police from investigating or adducing evidence of Mr E McGee’s blood alcohol content and sobriety at the time of the collision between his vehicle and the bicycle of the late Mr Humphrey, and to achieve that object by preventing or impeding the investigating police from making contact with Mr E McGee for a period of hours after the collision; thirdly, that their intention at the time of entering into the agreement was to pervert the course of justice in pending or possible curial proceedings which the appellants had in contemplation;[60] and fourthly, that the conduct which they agreed upon (preventing or impeding the investigating police from making contact with Mr E McGee for some hours) had the tendency or potential to pervert the course of justice.

   [60]   R v Rogerson (1992) 174 CLR 268 at 295 per Deane J.

7. The respondent’s written outline of submissions indicates that the evidential and factual elements of the prosecution case are these:

   1Eugene McGee consumed a quantity of alcohol at the Wheatsheaf Hotel, Allendale North, between approximately 1.00pm and 4.18pm on 30 November 2003;

   2At approximately 5.05pm he struck and killed Ian Humphrey who was riding his bicycle along the Gawler to Kapunda Road;

   3He believed that he had killed the cyclist;

   4He believed his driving may have been impaired by the alcohol he had consumed and, consequently, he may have been responsible for the collision;

   5He did not stop and render assistance to the cyclist;

   6He appreciated that his failure to stop and render assistance, coupled with the possibility that his alcohol consumption and manner of driving caused the collision, led him to being concerned about his personal position and professional reputation;

   7He decided to evade detection by the police and avoid police contact;

   8His aim in so doing was to avoid undergoing blood alcohol or sobriety tests and to avoid being put in a position where he may be required to provide information that could later be used to prosecute him over the death of the cyclist;

   9He realised that he needed assistance – both legal and personal – to achieve his aim;

   10He contacted David Edwardson by mobile telephone for the first time at 5.11pm.  Thereafter there were a series of telephone calls between Eugene McGee and Edwardson until well after 8.00pm;

   11Eugene McGee contacted Craig McGee by mobile telephone for the first time at 5.37pm.  Thereafter there were a series of telephone calls between Eugene McGee and Craig McGee until 6.49pm (at which time Craig McGee telephoned Eugene McGee and engaged in a conversation lasting 60 seconds);

   12Following the first telephone call from Eugene McGee to Craig McGee at 5.37pm, Craig McGee, who was driving to the Riverland, turned his car around and returned to Mrs McGee’s home at Kapunda pursuant to an agreement to meet Eugene McGee there;

   13At approximately 6.50pm Constables Talbot and Adamson attended Mrs McGee’s home looking for Eugene McGee.  Craig McGee lied to the police – denying that he had seen Eugene McGee and denying that he had Eugene McGee’s telephone number;

   14As soon as the police left at 6.57pm Craig McGee telephoned Eugene McGee.  There were two further calls between them at 7.02pm and 7.06pm;

   15Eugene McGee subsequently arrived at his mother’s home at Kapunda and met up with Craig McGee – it was now 2 hours after the collision;

   16Eugene McGee’s damaged Mitsubishi Pajero was left at Mrs McGee’s home (where it was later discovered by a member of the media at approximately 7.50‑8.00pm);

   17Craig McGee drove Eugene McGee through the police road block on the Gawler to Kapunda Road to his home at Collinswood and then to David Edwardson’s home at Norwood;

   18The prosecution contends that the pattern of conduct and the telephone calls made by both accused following the collision, together with lies told by Craig McGee to investigating police, support the inference that the accused conspired to attempt to pervert the course of justice;

   19The prosecution will invite the jury to infer that during the series of telephone calls made by the appellants to one another they entered the conspiracy charged.

8. The respondent’s oral submissions indicated that the prosecution also relies upon some further matters. These include the fact that the police were entitled under s 47E of the Road Traffic Act 1961 (SA), within two hours of the collision, to have required Mr E McGee to have submitted to breath analysis for the purpose of establishing his blood alcohol content; the fact that in criminal proceedings against Mr E McGee arising from the collision, evidence of the result of such a breath analysis would, subject to certain qualifications and in the absence of evidence to the contrary, have constituted evidence of his blood alcohol content at the time of the collision[61] and, thirdly, that by reason of Mr E McGee’s experience as a police officer and as a lawyer, a jury could reasonably conclude that he knew, at relevant times, of the first two matters.  The prosecution case alleges, in effect, an agreement by the appellants to keep Mr E McGee away from the police during the period in which evidence of particular forensic value was available, and that the purpose of the agreement was to prevent that evidence from being obtained.  As has been pointed out by the Chief Justice, the appeals were conducted by reference to the manner in which the prosecution indicated that it would put its case, and without any examination of the witness depositions.

   [61]   Road Traffic Act 1961 (SA) s47G.

   Is the Prosecution Bound as a Matter of Law to Fail?

9. The appellants’ submission that the conduct alleged against them could not, even if proved, amount to a conspiracy to attempt to pervert the course of justice focussed, in effect, on the last of the elements to be proved by the prosecution which were identified earlier in these reasons.  The submission was that the conduct which prevented or impeded the police from making contact with Mr E McGee for some hours after the collision could not have had the tendency or potential to pervert the course of justice because it could not be said that such conduct had the tendency to mislead or deflect the police in their investigations.

10. The submission was put in various ways.  It was said that even if the appellants had entered into an agreement of the kind alleged, Mr E McGee had not done anything unlawful.  His conduct in failing to stop immediately after the collision had been unlawful,[62] but that failure had, it was said, already occurred prior to the time when Mr E McGee is said to have made contact with Mr C McGee (5.37pm).  Having committed that offence, Mr E McGee was under no further obligation to present himself to the police, even if he knew that they were looking for him.  It is not an offence, it was submitted, simply to evade apprehension by the police.[63]  In relation to Mr C McGee, it was said that the prosecution evidence disclosed no more than that he had failed to assist police.  He had not actively misled them or caused them to pursue, unnecessarily, some other line of enquiry.  It is not every interference with a police investigation which amounts to an attempt to pervert the course of justice.  To constitute such an interference, it was submitted that the conduct alleged must, in an active or positive sense, have diverted, misled or frustrated the police.  The conduct alleged against the appellants involved, it was submitted, no more than the passive conduct involved in Mr E McGee not presenting himself to the police.

    [62]   Road Traffic Act 1961 (SA) s43(1).

    [63]   Cf R v Taufahema [2007] HCA 11 at [21]; (2007) 228 CLR 232 at 243 per Gleeson CJ and Callinan J.

11. As was pointed out by Deane J in Meissner v The Queen,[64] defining the offence of attempting to pervert the course of justice as the doing of some act which has a tendency to, and which is intended to, pervert the administration of public justice does not identify the conduct which may satisfy its central element.[65]  The cases show that conduct of quite different kinds may be sufficient but, so far, the courts have refrained from attempting to define in any exhaustive way the reach of the expression “the course of justice” and the concept of “perverting” the course of justice.[66]  In particular, the boundary between conduct which interferes with a police investigation, on the one hand, and conduct amounting to an attempt to pervert the course of justice, on the other, is not clear.

    [64] (1995) 184 CLR 132.

    [65] Ibid at 148.

    [66]   R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ.

12. It is established in Australia that the course of justice (for the purpose of the offences of perverting, or attempting to pervert, the course of justice) does not begin until the jurisdiction of some court or competent judicial authority is invoked.[67]  The High Court has expressly rejected the approach taken in England that the course of justice has been embarked upon if “proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress”.[68]  Thus, in Australia, a police investigation is not, of itself, part of the course of justice.  Accordingly, an interference with, or obstruction of, a police investigation does not, of itself, amount to an attempt to pervert the course of justice.

    [67] Ibid at 283 per Brennan and Toohey JJ.

    [68] Ibid (citing R v Selvage [1982] QB 372 at 381) (Emphasis in R v Rogerson), at 276 per Mason CJ, 293 per Deane J.

13. Nevertheless, conduct occurring in the course of, or in relation to, a police investigation, and before any curial proceedings have been commenced, may amount to an attempt to pervert the course of justice because of its tendency to affect the court’s capacity to do justice in later proceedings arising out of the investigation.  Conduct occurring before the commencement of curial proceedings can have an effect on the course of later proceedings.  If the conduct was engaged in for the effect it will, or would, have on the course of contemplated proceedings then it may constitute this element of the offence of attempting to pervert the course of justice.  In Rogerson, Brennan and Toohey JJ said of the necessary relationship between conduct in relation to a police investigation and subsequent criminal proceedings:

    Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice.  An act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal or from adducing evidence of the true facts is an act which tends to pervert the course of justice and, if done with intent to achieve that result, amounts to an attempt to pervert the course of justice.  It impairs the court’s capacity to do justice in the actual circumstances of the case.[69]  (emphasis added)

    [69] Ibid at 283-284.

14. In the same case, Mason CJ said:

    It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed.  That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible.  In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency …

    Accordingly, I agree with Brennan and Toohey JJ that an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice and can ground the offence of conspiring to pervert the course of justice.[70] (citations omitted) (emphasis added)

    [70] Ibid at 277-278.

15. Also in Rogerson, Deane J said:

    Police inquiries do not, of themselves, constitute “the course of justice” for the purposes of the offence of perverting the course of justice.  It is necessary, in a case involving alleged conduct to divert or frustrate police inquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert.  It is true that one can point to statements in the cases emphasising the closeness of the connexion between police investigations and pending, probable or possible curial proceedings in relation to the subject matter of those investigations.  The closeness of that connexion may, in some circumstances, found a conclusion that conduct aimed at frustrating or misleading police investigations was directed to perverting the course of justice in pending or possible future court proceedings.  Nonetheless, such statements should not be permitted to divert attention from the fact that the offence of conspiring to pervert the course of justice involves conspiring to pervert the course of justice in curial proceedings.  Where a conspiracy to mislead or frustrate police inquiries is involved, the offence of conspiring to pervert the course of justice will not be established unless it appears that a purpose of the conspiracy was, by misleading or frustrating the police investigation, to pervert the course of justice in pending or possible curial proceedings.[71] (citations omitted) (emphasis added)

    [71] Ibid at 293-294.

16. These passages from Rogerson indicate that certain conduct in the course of a police investigation, occurring before the commencement of any proceedings, may amount to an attempt to pervert the course of justice.  Conduct may amount to such an attempt if it has a tendency to deflect the police from prosecuting a criminal offence,[72] or to deflect the police from adducing evidence of the true facts,[73] or to mislead or frustrate the police investigation[74] or to frustrate or deflect the course of curial proceedings.[75]  Of course, in each case the offence is committed only if the accused persons have the requisite intention to pervert the course of justice in pending or possible curial proceedings.

    [72] Ibid at 284 per Brennan and Toohey JJ.

    [73] Ibid. See also Mason CJ at 278.

    [74] Ibid at 294 per Deane J.

    [75] Ibid at 277-278 per Mason CJ.

17. Although the courts have not attempted an exhaustive definition of the elements of the offence of attempting to pervert the course of justice, some categories of conduct have been recognised as being sufficient to constitute the relevant action.  Conduct which positively misleads the police, provided that the requisite intent exists and provided that the conduct agreed upon would have the requisite effect on contemplated curial proceedings, may amount to an attempt to pervert the course of justice.  The example given by Brennan and Toohey JJ in Rogerson illustrates this proposition:

    A coven of criminals who agree to commit a crime and to mislead the subsequent investigation so that an innocent person will be prosecuted for the crime-to-be-committed are guilty not only of a conspiracy to commit the crime but also of a conspiracy to pervert the course of justice by inducing the institution of a false prosecution.[76] (Emphasis added)

    [76] Ibid at 281. See also Deane J at 293.

18. Further illustrations are seen in two of the authorities cited by Brennan and Toohey JJ in Rogerson, namely, R v Sharpe and Stringer[77] and Cane v The Queen.[78]  Although Brennan and Toohey JJ disagreed with the reasoning in these authorities, they did regard them as having been correctly decided.[79]  In R v Sharpe and Stringer, Stringer’s vehicle had struck and injured a cyclist.  Stringer did not stop at the scene.  Later that day he told Sharpe of what had happened.  They agreed to say nothing about it and to return home by a different route.  Sharpe later went to the scene but did not say anything about what he knew.  When questioned by police about some repairs to his car, Stringer told some untruths.  Stringer then asked a third person to support his false account.  The Court of Criminal Appeal held that a conspiracy to destroy evidence of the commission of a crime, to get persons to conceal a crime, and to attempt to mislead a police officer amounted to the offence of conspiring to defeat the ends of public justice. 

    [77] (1937) 26 Cr App R 122.

    [78] [1968] NZLR 787.

    [79]   R v Rogerson (1992) 174 CLR 268 at 283.

1. In Cane the defendant was charged with wilfully attempting to defeat the course of justice by telling a police officer that another person had been driving a motor car at a relevant time when he in fact had been the driver.  It was held that while a suspect is not obliged to incriminate himself when questioned by the police, the telling of the lie implicating another in the relevant act would amount to an attempt to defeat the course of justice.[80] 

   [80]   Cane v The Queen [1968] NZLR 787 at 790-791. See also Jamieson v The Queen (unreported, judgment of the Court of Criminal Appeal (SA) (20 March 1991)); R v Allan [1995] 2 VR 468.

2. It will not be every false statement made in the course of a police investigation which constitutes the element of the offence.  Persons who falsely deny their own involvement in an offence, but who do not mislead the police, do not commit the offence.  To hold otherwise would impinge upon a suspected person's right to silence.  See, for example, Rice v Connolly[81] and R v Spezzano.[82]  As was pointed out by Martin JA in the latter case, whether a particular false statement to a police officer investigating a crime made by a suspect from motives of self‑protection will attract criminal liability depends on the nature of the false statement and the particular circumstances in which it was made.[83]

   [81] [1966] 2 QB 414.

   [82] (1977) 76 DLR (3d) 160.

   [83] Ibid at 169.

3. The authorities also indicate that the destruction or concealment of evidence may constitute conduct forming an element of the offence of attempting to pervert the course of justice.  In R v Rafique[84] the circumstances were that, after an accidental shooting, the defendants panicked.  They threw the gun and cartridges away and abandoned their car.  They were convicted of the offence of doing acts tending and intended to pervert the course of public justice.  It was their conduct in destroying or concealing potential exhibits which constituted the relevant conduct.  The Court of Appeal accepted that the defendants had a right to silence and a privilege against self-incrimination, but did not accept that those rights extended to entitling them to destroy or conceal potential exhibits with impunity.[85]  As noted above, in R v Sharpe and Stringer the conduct of the defendants in destroying some of the evidence was also regarded as sufficient to constitute this element of the offence.

   [84] [1993] 4 All ER 1.

   [85] Ibid at 7.

4. The reasoning in these cases can be seen to have been influenced by the acceptance in the English authorities that a police investigation which may result in curial proceedings is itself part of the course of justice.  Nevertheless, it is difficult to see in principle that the result would have been different had a more confined view of the course of justice been adopted. 

5. Finally, the authorities have recognised another category of cases which is relevant presently.  They are the cases in which the defendants have conspired to prevent the arrest of a person suspected of a criminal offence.  In R v Thomas[86] the defendants had given the registration numbers of two unmarked police cars to a person who was under police observation and who was suspected of committing a bank robbery.  The prosecution case was that the information had been given to the suspect so as to enable him to avoid arrest.  The Court of Appeal accepted that the doing of an act calculated to assist another to avoid arrest, knowing that he is wanted by the police as a suspect, falls into the category of offences of perverting the administration of public justice.  The Court of Appeal rejected a submission that interference of this kind was a criminal offence only if the interference with the course of justice was sought to be effected by some dishonest, corrupt or threatening means.  In Rogerson, Brennan and Toohey JJ regarded Thomas as having been correctly decided, (although disagreeing with that part of the reasoning of the Court of Appeal which turned on the view that the police investigation by itself was part of the course of justice).[87]

   [86] [1979] 1 QB 326.

   [87]   R v Rogerson (1992) 174 CLR 268 at 283.

6. In the present case, the amended particulars do not allege expressly an agreement to engage in conduct to mislead the police, to conceal evidence, or to prevent the arrest of Mr E McGee.  The allegation of an agreement to frustrate, deflect or prevent the police investigation does not necessarily involve an agreement to mislead the police.  Similarly, the allegation of an agreement to frustrate, deflect or prevent the police from investigating or adducing evidence of Mr E McGee’s blood alcohol content and sobriety does not necessarily involve an agreement to conceal evidence, and the allegation of an agreement to prevent the police from making contact with Mr E McGee involves lesser conduct than would be involved in an attempt to prevent Mr E McGee being arrested.

7. However, at its heart, the prosecution case is an allegation of an agreement by the appellants to prevent the police, in a prosecution which may arise from the collision, from adducing evidence concerning a very relevant matter, namely, the sobriety of Mr E McGee.  The prosecution alleges an agreement, in effect, to prevent or frustrate the police attempts to make contact with Mr E McGee during the relatively limited period in which evidence of particular forensic value concerning his blood alcohol content and sobriety could be obtained.  Put slightly differently, the prosecution case involves an allegation of an agreement to prevent or frustrate the police from making contact with Mr E McGee until such time as relevant evidence or, at the least, the opportunity to garner relevant evidence, had been lost.

8. Allegations of this kind are, in my opinion, analogous to the recognised categories of conduct mentioned earlier.  There is of course a difference between destroying and concealing evidence, on the one hand, and allowing evidence which is only temporarily available to be lost, on the other.  But in each case, the effect (if the attempt is successful) is the same: by reason of the impugned conduct relevant evidence is put beyond the reach of the police and cannot be adduced in court.  Again, there is a difference between preventing the police from making contact with suspects so as to arrest them, on the one hand, and preventing the police from making contact with drivers so as to require them to submit to a compulsory breath analysis, on the other, but I am unable to conclude that that is a relevant difference for present purposes.  Finally, conduct involved in frustrating, deflecting or preventing the police from investigating a driver’s blood alcohol content may not be markedly different from conduct which misleads the police.

9. Further, as I understand the amended Information, it alleges an agreement by the appellants to engage in more than mere passive conduct.  The allegation is that the appellants agreed to frustrate, deflect or prevent the police in the specified way by preventing or impeding them making contact with Mr E McGee.  It does not seem to be confined to an allegation of an agreement to engage only in passive conduct to obtain the desired effect.

10. In these circumstances, I am not satisfied that it can be concluded at this stage that, even if the prosecution does establish its factual propositions, the conduct charged against the appellants will not amount to a conspiracy to attempt to pervert the course of justice.  I acknowledge the inter-relationship between this issue and the appellants’ submission that the prosecutor will not in any event be able to exclude a reasonable hypothesis consistent with innocence. That inter-relationship confirms my conclusion that it cannot be concluded at this stage that the prosecution is foredoomed to fail for the reason identified in the issue numbered 3(a) at the commencement of these reasons.

11. I agree with the reasons of the Chief Justice concerning the question of whether the evidence available to the prosecution will be sufficient to make out the charge in the information. I also agree with his reasons concerning the appellants’ submissions that the “manner” of the attempt to pervert the course of justice has been dealt with in earlier provisions of the CLCA, so that s 256 of the CLCA cannot be invoked by the prosecution.

    Addendum

12. Since circulating the above reasons in draft, I have been provided with the draft reasons of Gray J.

13. The question of whether the common law offence of perverting the course of justice continues to exist in this State was not addressed in the parties’ submissions.  I would prefer to defer consideration of that question until it arises directly for determination.

14. Both the appeals and the case stated proceeded on the basis that the Information alleged a common law conspiracy to commit the offence established by s 256 of the CLCA. It is that offence which the appellants submitted (both in this Court and in the District Court) was not known to the law of South Australia. It was not suggested by the parties or by the District Court Judge at any stage that the Information could or should be construed as alleging a conspiracy to commit the common law offence of perverting the course of justice. The views of the District Court Judge and of the parties as to the offence charged appear in the following passages of the judgment:

    In this case, Section 256(1) makes it an offence to attempt to pervert the course of justice. That is the unlawful act. It is that offence which is the object of the conspiracy alleged against the Defendants. Accordingly, in my opinion, the common law recognises the offence of conspiracy to attempt to pervert the course of justice, being the offence contained in Section 256(1) of the Act.

    …

    In the end, after I called the matter back on for further submissions, it was recognised by the respective Counsel for the Defendants and Counsel for the DPP that there was very little difference between their respective positions.  It was accepted by both Counsel for the Defendants that whether the offence is that of conspiracy to pervert the course of justice, or conspiracy to attempt to pervert the course of justice, that the elements of the charge are the same.  It was also accepted that the offence, whatever name is given to it, arises as a result of the provisions of Section 256(1) of the Act and the common law.  The only difference between the two positions was that the DPP has sought to charge an offence of conspiracy to attempt to pervert the course of justice and the Defendants assert that the correct charge is conspiracy to pervert the course of justice.  However, as Ms Powell QC pointed out, that whilst there is only a small difference, the difference is important because the DPP is not, in the amended Information, charging an offence which is known to the law of South Australia.[88] (emphasis added).

    [88]   R v McGeeand Anor [2007] SADC 10 at [35], [37]; [(2007) 247 LSJS 95 at 101-102.

15. The respective submissions of the parties on the appeal were based on the same understanding of the offence alleged. 

16. I also note that the Information has been amended from time to time. One amendment substituted s 256(1) for s 270 of the CLCA in the statement of the offence.[89] Section 270[90] specifies, amongst other things, the maximum penalty for the common law offence of conspiracy to pervert the course of public justice.  The making of the amendment is inconsistent with an intention by the prosecution to allege a conspiracy to commit the common law offence of perverting the course of justice.

    [89]   The statement of offence in the original information was: Conspiracy to Pervert the Course of Justice (Common Law and s 270 of the Criminal Law Consolidation Act (1935)).

    [90] Section 270 of the CLCA provides:

    270-Punishment for certain offences:

    (1) Any person convicted of any of the following common law offences, that is to say:

    (b) keeping a common bawdy house or a common ill-governed and disorderly house;

    (c) any cheat or fraud punishable at common law,

    shall be liable to be imprisoned for a term not exceeding  two years.

    (2) Any person convicted of any of the following common law offences, that is to say, any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert or defeat the course of public justice, shall be liable to be imprisoned for a term not exceeding seven years.

17. In these circumstances, my reasons have addressed only the offence presently alleged against the appellants.

    Conclusion

18. For these reasons and those given by the Chief Justice I would dismiss each of the appeals.