R v McGee - [2008] SADC 8

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCGEE & ANOR
[2008] SADC 8
Reasons of His Honour Judge Robertson
14 February 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Charge of conspiracy to pervert the course of justice - principles applicable.
Applications for a permanent stay - abuse of process - general principles.
Principle of incontrovertibility - pleas of guilty for failing to stop and failing to render assistance in earlier criminal proceedings - determination of facts made by sentencing judge in sentencing proceedings - Crown seeking to challenge those findings in these proceedings - whether the principle of incontrovertibility applies - alternatively, whether prosecution is vexatious, oppressive and unfair.
Extensive publicity relating to earlier Trial and sentencing of Applicant, Eugene McGee - further extensive publicity arising from the Kapunda Road Royal Commission - some of the publicity disparaging and adverse of Applicant, Eugene McGee - question whether there is a substantial risk the Applicants will not receive a fair trial as a result of pre-trial publicity - principles applicable - application for a permanent stay.
Prosecution of charge of conspiracy to pervert the course of justice - permanent stay sought on basis prosecution is foredoomed to fail - principles applicable - Crown case relies upon circumstantial evidence - inferences sought to be drawn by the Crown - whether the prosecution is foredoomed to fail.
Application for a permanent stay - allegation that Crown not followed rule of practice by charging conspiracy and not substantive offence - whether an abuse of process.
Held: Applications for permanent stay of prosecution refused.
Criminal Law Consolidation Act 1935 ss19A(1), 243, 256, 270; Road Traffic Act 1961 ss43(1), 45, 47E(1); Criminal Law (Sentencing) Act 1988 s6, referred to.
The Queen v Rogerson (1991-1992) 174 CLR 268; Jago v The District Court of New South Wales (1989-1990) 168 CLR 23; Williams v Spautz (1991-1992) 174 CLR 509; Walton v Gardiner (1992-1993) 177 CLR 378; Rogers v The Queen (1994) 181 CLR 251; Island Maritime Limited v Filipowski (2006) 226 CLR 328; The Queen v Carroll (2002-2003) 213 CLR 635; Gilham v The Queen (2007) NSWCCA 323; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209; Cheung v The Queen (2001) 209 CLR 1; Moevao v Department of Labour (1980) 1 NZLR 464; The Queen v Glennon (1991-1992) 173 CLR 592; The Queen v Smith (1995) 1 VR 10; Meissner v The Queen (1995) 184 CLR 132; Barca v The Queen (1974-1975) 133 CLR 82; The Queen v Debelis (1983-1984) 36 SASR 1, applied.
The Queen v Gilham NSWSC: Unreported Judgment (Howie J) delivered 21 March 2007; Kingswell v The Queen (1985) 159 CLR 264; R v Palaga (2001) 80 SASR 19; Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46, distinguished.
The Queen v Vreones (1891) 1 QB 360; The Queen v Murphy (1985) 158 CLR 596; Mulcahy v The Queen (1868) 3 LR HL 306; Mraz v The Queen (No.2) (1956-1957) 96 CLR 62; The Queen v Storey (1977-1978) 140 CLR 364; Garrett v The Queen (1977-1978) 139 CLR 437; The Queen v Hoar (1981-1982) 148 CLR 32, considered.

R v MCGEE & ANOR
[2008] SADC 8
THE FOLLOWING PARAGRAPHS ARE THE SUBJECT OF A SUPPRESSION ORDER AND HAVE BEEN EXCISED:
·PARAS 219-223 (INCLUSIVE)

Judge Robertson
Criminal
The Charge

The Applicants are charged with Conspiracy To Attempt to Pervert The Course of Justice. The Information charging the Defendants was filed in this Court in October 2006. Initially, the charge was Conspiracy To Pervert The Course Of Justice. That charge was founded upon the common law and Section 270 of the Criminal Law Consolidation Act 1935 (“CLCA”). On 16 February 2007, I granted leave for the Information to be amended to charge Conspiracy To Attempt To Pervert The Course Of Justice. The amended charge is founded upon the common law and Section 256(1) of the CLCA.
The Applications
On 29 September 2006, the Applicant, Eugene Norman McGee (“Eugene McGee”), filed an Application seeking an order that the prosecution of the charge laid in the Information be stayed as an abuse of the process of the Court. On the same day, the Applicant, Craig Patrick McGee (“Craig McGee”), also filed an Application seeking an order that the prosecution of the Information be stayed as an abuse of process. Each of the Applicants relies on a number of grounds in support of their Applications. I will deal with each of those grounds shortly. However, before doing so, I need to recount the history which preceded the present charge being laid. I also need to consider some additional matters before dealing specifically with the Applications.
Earlier Charges Against Eugene McGee
On Sunday, 30 November 2003, a Mitsubishi Pajero four wheel drive motor vehicle driven by Eugene McGee on the Kapunda to Gawler Road collided with a cyclist, Ian Humphrey, who was cycling in the same direction. As a result of the collision, Ian Humphrey was killed. Eugene McGee did not stop after the collision.
Following the collision, Eugene McGee was charged on an Information filed in the Magistrates Court, on 18 December 2003, with three offences. The first offence was causing death by dangerous driving, contrary to Section 19A(1) of the CLCA. The second offence was that he failed to stop his vehicle following a collision in which death was caused to another person, contrary to Section 43(1) of the Road Traffic Act 1961. The third offence was that Eugene McGee failed to immediately render assistance, being the driver of a motor vehicle when a collision occurred causing the death of another person, contrary to Section 43(1) of the Road Traffic Act 1961.
Eugene McGee pleaded not guilty to the charge of Causing Death By Dangerous Driving. He pleaded guilty in the Magistrates Court to the second and third charges of Failing To Stop After A Collision and Failing To Render Assistance.
On 6 August 2004, Eugene McGee was committed to stand trial in the District Court on the charge of Causing Death By Dangerous Driving.
The Trial and Sentence of Eugene McGee
On 4 April 2005, the charge of Causing Death By Dangerous Driving was tried in this Court before Chief Judge Worthington and a Jury. On 15 April 2005, the Jury delivered a verdict of not guilty of the charge of Causing Death By Dangerous Driving, but guilty of an alternative and lesser charge of Driving Without Due Care, contrary to Section 45 of the Road Traffic Act 1961.
On 28 April 2005, the Chief Judge heard sentencing submissions from Defence Counsel and Counsel representing the Director of Public Prosecutions (“DPP”) in relation to the three offences of Driving Without Due Care, Failing To Stop After A Collision and Failing To Render Assistance. Later, on that same day, the sentencing judge pronounced the sentences. For the offence of Driving Without Due Care, Eugene McGee was fined eight hundred dollars and disqualified from holding or obtaining a driver’s licence for six months. With regard to the other two offences, a single penalty of a fine of two thousand three hundred dollars was imposed. Eugene McGee was also disqualified from holding or obtaining a driver’s licence for a period of twelve months. The licence disqualifications were ordered to be concurrent.
Kapunda Road Royal Commission
The trial of Eugene McGee had attracted significant media attention. There was also a substantial amount of publicity in the media following the sentences. The Premier of the State of South Australia, and the Attorney-General, made public comments relating to the proceedings.
On 3 May 2005, the Premier announced in Parliament that the Government of the State of South Australia had decided to establish a Royal Commission to examine certain matters arising from the collision on 30 November 2003, in which Mr Humphrey was killed, including the investigation by the Police and the conduct of the DPP in prosecuting Eugene McGee.
The Royal Commission was established by Letters Patent issued on 5 May 2005, in which Mr Greg James QC was appointed Royal Commissioner. Following a series of hearings, the Royal Commissioner presented his Report on 15 July 2005.
Relevant Law Relating to the Charge
I mentioned earlier that the charge of Conspiracy To Attempt To Pervert The Course Of Justice is founded on common law and Section 256(1) of the CLCA. That section provides:
256(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 proceeding provisions of this Part is guilty of an offence.
Penalty: Imprisonment for 4 years.
The statutory offence of Attempting To Pervert The Course Of Justice is a substantive offence. In other words, it is not an inchoate offence in the sense of it being an offence of an attempt to commit a crime. The common law offence of Attempt To Pervert The Course Of Justice was always recognised as a substantive offence;[1] likewise, the statutory offence. As McHugh J said in The Queen v Rogerson,[2] the word “attempt” in the context of the common law charge (and I state, in the statutory charge) is misleading.
[1] The Queen v Vreones (1891) 1 QB 360; The Queen v Murphy (1985) 158 CLR 596 at 609
[2] (1991-1992) 174 CLR 268 at 297
Conspiracy is an offence known to the common law. A conspiracy is an “ … agreement of two or more to do an unlawful act or to do a lawful act by unlawful means”.[3] As Brennan and Toohey JJ said in Rogerson:[4]
What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object, … . As the “very plot” is the actus reus of the offence, the offence is complete before any further unlawful act is done or any further lawful act is done to carry the unlawful object into effect.
[3] Mulcahy v The Queen (1868) 3 LR HL 306 at 317
[4] Rogerson at 280-281
The following observations of Brennan and Toohey JJ in Rogerson are also apposite in the present context, albeit they are referring to common law offences:[5]
At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence. It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice. A conspiracy to pervert the course of justice, like any other conspiracy to commit an offence, is an inchoate offence in the sense that it is complete without the doing of any act save the act of agreeing to pervert the course of justice. Such an agreement imports a common intention among the conspirators that an act be done by somebody which will have the effect of perverting the course of justice.
[5] Rogerson at 279-280
In this case, the charge of conspiracy refers to an alleged agreement between the Applicants to act in such a manner which, if the act or acts were actually undertaken, would be an offence pursuant to the terms of Section 256(1) of the CLCA.
The observations regarding the meaning of the phrase “the course of justice” and the word “pervert” by Brennan and Toohey JJ in Rogerson[6] are also of valuable assistance in understanding the charge which has been laid in this case:
Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice. Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned. To define the intent required in a case of a conspiracy to pervert the course of justice, the law of conspiracy must be examined.
References to footnotes have been omitted.
[6] Rogerson at 280
Emphasis added.
It is settled law that a conspiracy to attempt to pervert the course of justice may be entered into, though no curial proceedings have been commenced or even contemplated (other than by the conspirators).[7] It is also accepted that a police investigation is not, in itself, part of “the course of justice”. However, an act calculated to hinder or deflect a police investigation from adducing evidence of true facts, is an act which has a tendency to pervert the course of justice. This was explained by Brennan And Toohey JJ in Rogerson:[8]
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.
Emphasis added.
[7] Rogerson at 281; 283
[8] Rogerson at 283-284
Particulars of the Offence
The initiating Information charging the Applicants was filed in the Magistrates Court on 29 August 2005. The Particulars of the offence charged were provided by the DPP in a letter to the Solicitor for Eugene McGee, dated 21 December 2005. The Particulars furnished on this occasion differ substantially from those Particulars contained in the initiating Information in this Court. I set out hereunder the Particulars set out in the letter from the DPP:
The following particulars of the charge are provided:
Eugene McGee and Craig McGee on 30 November 2003 at Kapunda or other places conspired to attempt to obstruct or pervert the course of justice or the due administration of the law by obstructing the investigation by members of the South Australia Police into the death of Ian Humphrey in that Eugene McGee and Craig McGee agreed to conceal Eugene McGee’s location, or to withhold information as to his location, or to withhold information which might assist members of South Australia Police from exercising the powers conferred by s47E Road Traffic Act to require Eugene McGee to submit to an alcotest or breath analysis or both within two hours of the impact between a Mitsubishi Pajero driven by Eugene McGee and a cycle ridden by Ian Humphrey which occurred on the Gawler to Kapunda Road at about 5.50 pm on Sunday, 30 November 2003.
Whilst the matter remained in the Magistrates Court, further Particulars were provided by the DPP to the Solicitors for the Applicant, Craig McGee, in a letter dated 1 May 2006, which differed from those to which I have referred. I set out hereunder those Particulars:
The following particulars are provided:
Eugene McGee and Craig McGee on 30^th November, 2002, at Kapunda or other places, conspired to pervert the course of justice in that:
1.For the purposes of facilitating Eugene McGee’s endeavours to evade any police officer engaged in the investigation referred to in paragraph 2 herein, they agreed that Craig McGee would act or refrain from acting in several ways, hereinafter referred to as the “agreed acts”, including but not limited to, travelling to the home of Mrs Marjorie McGee at Kapunda, making himself available to convey Eugene McGee to such locations and in such manner as Eugene McGee may direct, concealing the whereabouts of Eugene McGee, withholding information as to the whereabouts of Eugene McGee, withholding information which might assist in determining the whereabouts of Eugene McGee, informing Eugene McGee of the presence of police officers at the premises of Mrs. Marjorie McGee or other places and providing comfort and assistance to Eugene McGee.
2.The agreed acts were calculated to, and were intended by Eugene McGee and Craig McGee to impede any police officer engaged in the investigation into the impact between the Mitsubishi Pajero driven by Eugene McGee and the cycle ridden by Ian Humphrey in his or her endeavours to ascertain the whereabouts of Eugene McGee and to then exercise the powers conferred by S47E Road Traffic Act 1921 to require Eugene McGee to submit to an alcotest, or breath analysis, or both within two hours of the said impact.
3.The agreed acts had the tendency to and were intended by Eugene and Craig McGee to deflect or compromise any applications which might be made to a court of competent jurisdiction arising out of the said impact and to deny any court of competent jurisdiction hearing any charge preferred against Eugene McGee arising out of the said impact knowledge of all of the true circumstances of the said impact, including evidence as to any concentration of alcohol which might have been present in Eugene McGee’s blood at any time up to two hours after the said impact, or both.
Emphasis added.
These Particulars broadened the scope of the alleged conspiracy to that of an agreement to deny a Court knowledge of all of “the true circumstances” of the collision.
The Information charging the conspiracy, filed in this Court, contained the following Particulars of the Offence:
Craig Patrick and Eugene Norman McGee on the 30^th day of November 2003 at Kapunda or other places, conspired to attempt to obstruct or pervert the course of justice or the due administration of law by obstructing the investigation by members of the South Australian Police into the death of Ian Humphrey.
The hearing of the Applications for a stay of the prosecution commenced on 17 July 2007. On 9 July 2007, the DPP provided a fresh set of Particulars in the following terms:
The accused are charged with conspiring to attempt to pervert the course of justice. The aim of the conspiracy was to frustrate or deflect any possible criminal prosecution arising from or to deflect or hinder police or prosecuting authorities from adducing evidence of the true facts of, the collision between the Mitsubishi Pajero motor vehicle driven by Eugene McGee and a bicycle ridden by Ian Humphrey that occurred on the Gawler to Kapunda Road on 13 November 2003.
Emphasis added.
There was now a further and different set of Particulars than those which were furnished earlier by the DPP.

Early in the course of the hearing, Mr Rapke QC, Senior Counsel for the Crown, confirmed that this fresh set of Particulars were the relevant Particulars upon which the Crown relied to proceed with the charge contained in the Information.
The hearing of the Applications continued until 20 July 2007, when the hearing was adjourned until 22 August 2007.
I was concerned with the width of the Particulars furnished by the DPP on 9 July 2007. I formed the view that they were not appropriate, as they were far too wide. On the resumption of the hearing on 22 August 2007, I raised my concerns with Mr McArdle QC, who, by then, was Senior Counsel for the Crown. As a result of directing my concerns to Mr McArdle QC, and following submissions from Counsel, Mr McArdle QC furnished amended Particulars. Those Particulars are now set out hereunder:
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 Particulars of the offence contained in the Information was amended on 3 September 2007 to substitute these Particulars.
On 15 October 2007, the hearing resumed and proceeded on the basis of the Particulars set out in the amended Information.
As a result of the earlier wide Particulars being substituted for more specific and, in my opinion, more appropriate Particulars, Mr Game SC, Senior Counsel for Eugene McGee, was required to make submissions to directly address the issues now raised by the final set of Particulars. Some of the submissions made in earlier hearings by Ms Powell QC, Senior Counsel for Craig McGee, and Mr Game SC, were no longer relevant because of the amendments to the Particulars.
It is difficult to comprehend why the DPP did not frame the Particulars finally settled upon on 22 August 2007, from the outset. The Particulars supplied on 9 July 2007, in such wide terms, has caused difficulties in these Applications. On the face of it, the “true circumstances” and the “true facts” brought into account the entire circumstances of the collision and the events that preceded and followed the collision. Judging from the list of witnesses furnished by the DPP, and the width of the Particulars, it would seem that initially the DPP was proposing to revisit all of the evidence in the previous Trial of Eugene McGee, together with additional evidence from a Professor Tennant and a Professor Goldney and two further witnesses, namely, Antony Zisimou and John Zisimou. These wide Particulars were at odds with the Crown case, as it was outlined by Mr McArdle QC, during submissions. Mr McArdle QC confirmed that it was the Crown case that the conspiracy was that the Applicants agreed to keep Eugene McGee out of the hands of the Police for a sufficient period of time to hinder or deflect the Police from investigating his blood alcohol level through an alco-test, and his general appearance [T.319.10].
In referring to the alco-test, Mr McArdle QC was referring to the provisions of Section 47E(1) of the Road Traffic Act 1961, which relevantly provided that if a member of the Police Force believed, on reasonable grounds, that a person while driving a motor vehicle has been involved in an accident, he may require that person to submit to an alco-test or breath analysis or both. Sub-section(2) of Section 47E provided that the alco-test or breath analysis must be performed within two hours after the accident.
Mr Tavener, who appeared for the Crown subsequently to Mr McArdle QC, confirmed that it was the Crown case that there was an agreement between the two Applicants to do such things as to prevent or impede the Police from making contact with Eugene McGee for a period of hours after the collision, for the purpose of frustrating or preventing the Police from investigating the sobriety of Eugene McGee, including his blood alcohol reading [T.377.7].
I have spent a little time on the question of the various Particulars furnished by the Crown because it is a matter of concern that it took so long to eventually settle on the terms of the Particulars. If the Particulars had been presented from the outset in such a manner as to be consistent with the Crown case outlined by Mr McArdle QC and Mr Tavener, then Ms Powell QC and Mr Game SC would not have been required to address some of the issues raised initially in the hearing. If appropriate Particulars had been furnished in the first place, then the time taken for the hearing of these Applications would have been considerably lessened.
I now turn to consider the relevant legal principles relating to an application to stay proceedings on the basis of an abuse of process.
Principles Relevant to a Stay of Proceedings
The power to order a stay of proceedings is discretionary. The power should be exercised sparingly and only in exceptional circumstances. In Jago v The District Court of New South Wales, Mason CJ explained the use of the discretionary power in the following terms:[9]
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed.
Also in Jago, Gaudron J said:[10]
The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise a jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person making the jurisdiction to have it exercised … . Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (N.S.W.) v. Watson, “sparingly, and with the utmost caution”.
A reference to a footnote has been omitted.
[9] (1989-1990) 168 CLR 23 at 31
[10] At 76
[11] (1991-1992) 174 CLR 509 at 529
Similar views were expressed in Williams v Spautz.[11]
In considering an application for a stay of a prosecution on the basis of an abuse of process, a Court needs to undertake a balancing exercise of the various competing interests. This balancing exercise was explained in the joint Judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner:[12]
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
A reference to a footnote has been omitted.
[12] (1992-1993) 177 CLR 378 at 395-396
Whether a permanent stay is granted depends on whether the interests of justice or the administration of justice demands it. It is only after the balancing exercise is undertaken that an appropriate decision can be reached.
Grounds in Support of the Applications
There are a number of grounds relied upon by the Applicants in support of their respective Applications. I propose to deal with each ground separately. For the most part, the Applicant, Craig McGee, relied upon the submissions made on behalf of Eugene McGee, although separate submissions were made by Ms Powell QC, from time to time, on Craig McGee’s behalf.
First Ground –The Incontrovertibility Issue
(i) Summary of the Ground
The first ground of each Application is composed of two parts. The first part relies upon what has become known in the criminal law as the principle of incontrovertibility. It is submitted by the Applicants that the Crown in these proceedings is seeking to challenge and controvert final determinations of fact made by Chief Judge Worthington in the sentencing proceedings of Eugene McGee. The Applicants submit that it is an abuse of process for the Crown in these proceedings to seek to controvert those determinations of fact.
The second part of this ground is an alternative submission. It only becomes relevant if the Applicants are not successful on their primary submission. It is submitted that the Crown in seeking to re-litigate facts in these proceedings, which facts are the subject of the final determinations made by the Chief Judge in the sentencing proceedings, in that it is vexatious, oppressive and unfair and, accordingly, is an abuse of process.
(ii) Submissions on Behalf of the Applicants and the DPP on the Principle of Incontrovertibility
The Crown case, as outlined by Mr Tavener, Counsel appearing for the DPP, is that the agreement between the two Applicants was to do such things to prevent or impede the Police from contacting Eugene McGee for a period of time after the accident, for the purpose of avoiding being required to undertake an alco-test or breath analysis and to avoid having the state of his sobriety investigated. Mr Tavener acknowledged that part of the Crown case is that Eugene McGee left the scene of the collision and remained out of contact in the period following, for the purpose of avoiding being required to undergo an alco-test or breath analysis, or both, by the Police and to avoid having the state of his sobriety investigated by the Police. Further, the Crown case is that Eugene McGee contacted Craig McGee, by telephone, shortly after the collision to obtain his agreement to assist him with those objectives and that he obtained Craig McGee’s agreement to so assist him.
It is submitted on behalf of both Applicants that the Crown, in these proceedings, is seeking to controvert final judicial determinations of fact which the Chief Judge made in the sentencing proceedings of Eugene McGee. It was submitted that the Chief Judge, in sentencing Eugene McGee for the offences of Failing To Stop and Failing To Render Assistance, made a determination that Eugene McGee experienced a psychiatric condition known as “Dissociation” at the time of the collision and that his dissociative state interfered with his capacity to behave in an ordinary or appropriate manner. It was further submitted that the Chief Judge determined that the effect of that dissociative state was consistent with Eugene McGee being unable to bring himself to stop and face what he had done. These determinations led to the Chief Judge finding a mitigating factor with regard to the offending of Eugene McGee, namely, that his conduct in committing these offences was out of character. The Chief Judge then proceeded to sentence Eugene McGee, taking into account that mitigating factor.
It was submitted by Ms Powell QC, Counsel for Craig McGee, and Mr Game SC, Counsel for Eugene McGee, that, in accordance with principle, the Chief Judge’s determinations were incontrovertibly correct and, as a result, the Crown cannot now seek to have them re-litigated in this prosecution for the purpose of controverting them. Accordingly, it was submitted that the prosecution is an abuse of the Court’s process and it should be permanently stayed.
The High Court decision in Rogers v The Queen[13] was cited in support of this submission. For the present, it is suffice to say that the principle now known in the criminal law as the principle of incontrovertibility, arose from the joint Judgment of Deane and Gaudron JJ. The joint Judgment, and that of Mason CJ, will need to be considered shortly.
[13] (1994) 181 CLR 251
It was the contention of the Crown that the principle of incontrovertibility applied only to jury verdicts. It was submitted that the principle does not extend to determinations of fact made in the course of sentencing proceedings.
(iii) Later Submissions
During the course of writing my Reasons, the decision of the Court of Criminal Appeal of New South Wales in Gilham v The Queen[14] came to my attention in early December 2007. The decision was delivered by the Court of Criminal Appeal on 26 November 2007. The last day of hearing of these Applications was 16 October 2007. As part of the decision, a majority of the Judges determined that the principle of incontrovertibility has no application to facts found by a sentencing judge in sentencing proceedings.[15] As a result, I reconvened the hearing and on 22 January 2008, I heard submissions relating to that decision (and some other matters).
[14] (2007) NSWCCA 323
[15] Per McClellan CJ at CL 55-56 [203] to [208]
It was submitted on behalf of the Applicants in the reconvened hearing that the determination in Gilham, that the principle of incontrovertibility has no application to findings of fact in sentencing proceedings, was obiter. Mr Game SC also submitted, on the facts, the decision is distinguishable. He submitted that whilst it is accepted that the principle of incontrovertibility does not apply to all determinations of fact in sentencing proceedings, the principle does apply to determinations of fact in sentencing proceedings which are central to that process and which are made following a hearing on the merits. Mr Game SC submitted that this was the case here. At the earlier hearing, the submission regarding the application of the principle was pitched in wider terms. However, in the final hearing, the submission was refined to the position I have described.
As a result of all of this, I have decided to proceed in the following manner. In the first place, I propose to consider the decision in Rogers and determine if it establishes the principle contended for on behalf of the Applicants. That exercise will necessarily involve a consideration of the later decision of the High Court in The Queen v Carroll,[16] in which the decision in Rogers was considered. Following this exercise, I will then consider the decision of the New South Wales Court of Criminal Appeal in Gilham.
[16] (2002) 213 CLR 635
(iv) The Decision in Rogers v The Queen
The Judgments in Rogers deal with complex principles in the criminal law. The decision by the majority was that there had been an abuse of process and the prosecution should have been stayed. Mason CJ and Justices Deane and Gaudron comprised the majority. Justices Deane and Gaudron delivered a joint Judgment. Mason CJ delivered a separate Judgment. As will be seen shortly, those Justices who comprised the majority reached their final decision by separate routes. Brennan J and McHugh J, who were in dissent with respect to the final decision, delivered separate Judgments.
I commence my examination of the decision in Rogers[17] by briefly referring to the facts. In 1989, the Appellant, Rogers, was tried in the District Court of New South Wales on four counts of armed robbery. The Crown sought to rely upon confessional statements in three records of interview. It was determined by the Trial Judge, during a Voir Dire hearing, that the records of interview were not admissible as the Crown had not proved that Rogers had made the confessional statements voluntarily. At the Trial, Rogers was convicted of two counts of armed robbery and acquitted of the other two.
[17] (1994) 181 CLR 251
In 1992, Rogers was charged in the District Court with another eight armed robberies. At Trial, the Crown sought to rely upon four records of interview said to contain confessional statements. Three of those records of interview were the same as those ruled inadmissible by the Trial Judge in the 1989 Trial. Rogers sought an order that the proceedings be permanently stayed as an abuse of process. The basis of the application for a stay was the unfairness in allowing the Crown to re-litigate the issue relating to the confessional statements which had been ruled upon by the Trial Judge in the previous Trial. The 1992 Trial Judge refused the stay and the Court of Criminal Appeal upheld the Trial Judge’s decision. An appeal was made to the High Court.
I turn first to consider the joint Judgment of Deane and Gaudron JJ. They posed the question for consideration in the following terms:[18]
Clearly, the present case is not concerned with the plea of autrefois acquit, the unassailable nature of an acquittal or the need to avoid inconsistent verdicts. Nor is the case one which calls for any consideration of the rule against double jeopardy: the offences with which the accused is presently charged are distinct offences, unrelated to those on which he was indicted in 1989. The only question is whether the principle which ensures the incontrovertible character of judicial decisions precludes the tender of the records of interview as proposed by the prosecution.
Emphasis added.
[18] Rogers v The Queen at 278
Deane and Gaudron JJ answered that question in the following manner:[19]
Strictly, the 1989 ruling on voluntariness was concerned only with those parts of the records of interview relevant to the offences for which the appellant then stood trial. However and as already indicated, the statements which the prosecution wishes to tender in the appellant’s forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions”. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is no claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.
The course proposed by the prosecution amounts to an abuse of process.
A reference to a footnote has been omitted.
[19] Rogers at 280
Emphasis added.
The issue which arose for consideration during the course of submissions in these proceedings was whether the principle laid down by Deane and Gaudron JJ, which has now become known as the principle of incontrovertibility, is confined to verdicts of acquittal (or conviction) or whether it has wider application to other judicial decisions which are final judicial determinations of fact. Whilst the initial submission made on behalf of the Applicants was that the principle applied to final judicial determinations of fact generally, has now been confined to those final determinations of fact made following a hearing on the merits by a tribunal of fact, the fundamental issue between the parties still remains for determination.
Mr Game SC in support of his submission relied, in the first place, upon the terms of the question for consideration outlined by Deane and Gaudron JJ in Rogers, which I referred to above:[20]
The only question is whether the principle which ensures the incontrovertible character of judicial decisions precludes the tender of records of interview as proposed by the prosecution.
He pointed to the wide expression “ … the principle which ensures the incontrovertible character of judicial decisions …”. He also directed attention to one of the statements in the passage, in which Deane and Gaudron JJ provided the answer to the question, namely, “The challenge is one which invites the scandal of conflicting decisions”[21], and submitted that the observation must be a reference to conflict between the decision on the voluntariness of confession on the Voir Dire hearing in 1989 and the challenge to that decision in the 1992 proceedings. He submitted that the ratio of the decision of Deane and Gaudron JJ in Rogers is that where a final judicial determination of fact is made – in that case on the issue of voluntariness – that determination is incontrovertible, and to seek to controvert it in later criminal proceedings is an abuse of process by the Crown.
[20] At 278
[21] At 280

Mr Game SC’s attention was directed to the observations of Deane and Gaudron JJ contained in the passage in which they answered the question posed, namely: “ … a determination (in the later proceedings) that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989 …”. I suggested to Mr Game SC that a proper reading of the conclusion of Deane and Gaudron JJ in Rogers is that whilst the issue was the challenge in the 1992 proceedings to the 1989 ruling on voluntariness, such a challenge, in substance, was directed to undermining the verdicts of acquittal in those proceedings, and it was those verdicts which were held to be incontrovertible.
Mr Game SC responded by submitting that the relevance of the reference to the verdicts of acquittal, in the observations of Deane and Gaudron JJ, was to emphasise what their Honours had expressed earlier in the Judgment, namely, that the determination on voluntariness by the Trial Judge in the Voir Dire hearing became final upon the verdicts of acquittal being delivered. In this regard, he referred to the observations of Deane and Gaudron JJ, where they stated:[22]
It was put on behalf of the respondent that there is nothing conclusive about a ruling as to the admissibility of evidence which, it was said, involves no final determination of any issue of fact or law. That is so. But this case is concerned with the determination of an issue of fact, namely, voluntariness, on which the admissibility of confessional material depends. It was also put that a voir dire examination does not result in a conclusive determination of voluntariness for it can be reconsidered at any time during the trial. Again that is so, but it becomes final once a verdict is returned and it remains final unless the verdict is quashed or set aside. Moreover, its character as a final determination does not depend on whether there is a right of appeal: leaving aside the limited circumstances in which a court can vacate its own judgment, a judicial decision is final and binding unless quashed or set aside on appeal; it is necessarily final if there is no right of appeal.
[22] Rogers at 278-279
Mr Game SC submitted that the only relevance of the verdict was that upon it being delivered it made the earlier Voir Dire ruling final. He submitted that from that moment, the ruling became incontrovertible. He said that it was the conclusion of Deane and Gaudron JJ that in seeking to controvert the incontrovertible final judicial determination of fact (the question of voluntariness) in the later prosecution, that the Crown engaged in an abuse of process.
Whilst Mr Game SC did not refer to the Judgment of Howie J in the New South Wales Supreme Court in The Queen v Gilham[23], in this context, there is support for his submission in that Judgment. His Honour was of the opinion that the principle of incontrovertibility applied to the decision of the Trial Judge on the question of voluntariness made in 1989. He said:[24]
In Rogers incontrovertibility was conferred on a finding made by a trial judge after a hearing on the merits of an issue in respect of which he was the tribunal with jurisdiction to determine that question. The decision that the records of interview were not voluntary became incontrovertible after the verdict of acquittal was entered. It was held that to permit another judge to make a contrary finding on the same issue resulted in an abuse of process because it tended to bring the administration of justice into disrepute.
[23] The Queen v Gilham NSWSC; unreported Judgment (Howie J) delivered 21 March 2007
[24] At 38 [131]
I propose to now examine the joint Judgment of Deane and Gaudron JJ, further. One of the matters which the High Court considered in Rogers was whether the doctrine of issue estoppel in civil proceedings had application in criminal proceedings. Previously, there had been some acceptance in the High Court of the limited application of issue estoppel in the criminal law, although there also had been some opposition to it.[25] The circumstances in Rogers were suitable for a further consideration of the question. It had every appearance of an issue estoppel case.
[25] Mraz v The Queen (No.2) (1956- 1957) 96 CLR 62; The Queen v Storey (1978) 140 CLR 364
It was during their consideration of the question of whether issue estoppel had a place in the criminal law that Deane and Gaudron JJ drew attention to the Latin maxim “res judicata pro veritate accipitur” (the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct). After referring to other Latin maxims said to be fundamental to a judicial system, including the maxim which has become known as the rule against double jeopardy, Deane and Gaudron JJ said:[26]
There is, however, another related principle, likewise fundamental, which is embodied in the Latin maxim res judicata pro veritate accipitur. That maxim gives expression to a rule of Roman law which has since been recognized as part of our common law. It expresses the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct. The same idea was expressed in Coke’s Institutes in terms of the “incontrollable credit and veritie” of the records and memorials of the judges of the courts of record, which “admit no averment, plea or proofe to the contrarie”. That principle is not only fundamental, it is essential for the maintenance of public respect and confidence in the administration of justice.
References to footnotes have been omitted.
[26] Rogers v The Queen at 273
Later in their Judgment, their Honours concluded that there was further scope for the application of the principles laid down by these maxims, beyond that of autrefois acquit and other rules relating to verdicts delivered in previous trials:[27]
As already indicated, the conclusive aspect of autrefois acquit or that aspect of it which maintains the incontrovertible character of judicial decisions derives from the principle embodied in the maxim res judicata pro veritate accipitur. Its preclusive aspect, or that aspect which prevents the re-litigation of matters already determined in favour of the accused, derives from the same principles as issue estoppel, as is the principle embodied in the maxim nemo debet bis vexari pro eadem causa which, in its application to criminal proceedings, has become known as the rule against double jeopardy.
It is clear from the decision in Mraz v. The Queen [No.2] that autrefois acquit does not exhaust the operation in criminal proceedings of the principles embodied in the maxims res judicata pro veritate accipitur and nemo debet bis vexari pro eadem causa. In that case a verdict of (not guilty of murder but) guilty of manslaughter where, on the prosecution case, death occurred in the course of the accused committing rape (thus, invoking the felony-murder rule) necessitated an acquittal when the accused was later charged with rape. The fact that there is scope for the further operation of those principles appears also from the rule that the prosecution cannot go behind an acquittal and the requirement that interrelated verdicts be logically consistent. Even when these matters are taken into account along with the pleas of autrefois, logic does not compel the conclusion that the principles are thereby exhausted.
References to footnotes have been omitted.
[27] Rogers v The Queen at 277
These observations in the Judgment were followed by a rejection of issue estoppel as having a place in the criminal law. Their Honours considered that any development with regard to those principles could be addressed by the discretionary remedy of abuse of process. They concluded:[28]
It has been said that there is a need for the development of reasonable and workable rules in this area of the law and that one difficulty in that regard is “[t]he lack of an adequate terminology”. In our view, neither that consideration nor the need to consider individual cases which fall outside the pleas of autrefois and which are not covered by the doctrines that have developed with respect to the unassailable nature of an acquittal and the need for consistency, justifies the importation of issue estoppel into criminal proceedings. And that is so notwithstanding that, in our view, issue estoppel is not a true estoppel but a manifestation of the principles directed to ensuring the incontrovertible character of judicial decisions and the finality of litigation.
Issue estoppel would not only overlap with the plea of autrefois acquit and with the doctrines that have already developed, but its importation into the realm of criminal proceedings could well impede the development of coherent principles which recognize and allow for the distinct character of such proceedings. The preferable course, in our view, is to accept that the principles which operate in this area are fundamental and that the pleas and the developed doctrines relating to the unassailable nature of acquittals and the need for consistency may not exhaust their operation.
References to footnotes have been omitted.
[28] Rogers v The Queen at 278
Emphasis added.
I have spent some time directing attention to passages in the Judgment of Deane and Gaudron JJ in Rogers for the purpose of identifying the context in which Deane and Gaudron JJ posed the question referred to earlier in these Reasons. For present purposes, it is not necessary to repeat the quotation. I need to only simply state that their Honours acknowledged that the principles of autrefois acquit, the unassailable nature of an acquittal, the need to avoid inconsistent verdicts or double jeopardy were not in issue. As they said:[29]
The only question is whether the principle which ensures the incontrovertible character of judicial decisions precludes the tender of the records of interview as proposed by the prosecution.
[29] Rogers v The Queen at 278
It should be noted that each of the principles that their Honours indicated did not apply in the particular circumstances of Rogers were all principles referrable to a prior verdict.
A new circumstance had arisen in Rogers. The issue was whether the Latin maxim, which is now identified as the principle of incontrovertibility, had work to do in circumstances where there had been a final determination of fact, namely, that the statements had not been made voluntarily in a prosecution which ended with verdicts of acquittal, and that decision was being challenged in subsequent proceedings.
In my opinion, the earlier reasoning in the joint Judgment in Rogers, to which I have referred, makes it clear that their Honours were considering the incontrovertibility principle in the context of verdicts of acquittal. The question was whether the prosecution in the later proceedings seeking to controvert the 1989 proceedings, was seeking to undermine the verdicts of acquittal, which were incontrovertible. Their Honours concluded that it was, when they said the challenge to the 1989 determination in the 1992 proceedings “ … would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989 …”.[30]
[30] Rogers v The Queen at 280
The conclusion I have reached, that the principle of incontrovertibility, as applied in Rogers, was directed to verdicts of acquittal finds some support in the observations of Gummow and Hayne JJ in their joint Judgment in Island Maritime Limited v Filipowski:[31]
“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.
A reference to a footnote has been omitted
[31] (2006) 226 CLR 328 at 343 [41]
Emphasis added.
The authorities cited in support of the proposition were Garrett v The Queen[32]; Rogers v The Queen[33] and The Queen v Carroll[34]. It was the Latin maxim, “res judicata pro veritate accipitur”, in particular, which played an important role in the conclusions of Deane and Gaudron JJ in Rogers.
[32] Garrett v The Queen (1977-1978) 139 CLR 437 at 445
[33] Rogers v The Queen (1994) 181 CLR 251 at 277-278
[34] The Queen v Carroll (2002) 213 CLR 635
I should mention that I have focussed, in what I have said, on verdicts of acquittal. However, it needs to be understood that whilst verdicts of conviction were not relevant to the issue in Rogers, it is settled law that the principle of incontrovertibility also applies to them.
I mentioned earlier that in addition to the decision in Rogers, the decision in The Queen v Carroll[35] would need to be considered. Rogers was discussed in that decision. In my opinion, Carroll makes it plain that the decision of Deane and Gaudron JJ in Rogers was founded on the principle of incontrovertibility, as it applied to verdicts of acquittal.
[35] Citation
However, before turning to Carroll, I need to refer to the Judgment of Mason CJ in Rogers. Mason CJ rejected the proposition that the doctrine of issue estoppel has application in the criminal law. The Chief Justice agreed with Deane and Gaudron JJ that the prosecution in the 1992 proceedings seeking to use the records of interview were a direct challenge to the 1989 judicial determination by the Trial Judge. In this regard, his Honour said:[36]
I agree with the reasons given by Deane and Gaudron JJ. for concluding that the prosecution’s tender of the records of interview constituted a direct challenge to the 1989 determination and was therefore an abuse of process. The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object, in that it is not that party’s genuine purpose to obtain the relief sought in the second proceedings. The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories. Likewise, it would be a mistake to treat the discussion in judgments of particular circumstances as necessarily confining the concept of abuse of process.
A reference to a footnote has been omitted.
[36] Rogers at 255
It was Mason CJ’s view that re-litigation in subsequent proceedings of an issue already decided in earlier criminal proceedings is inconsistent with principle and an abuse of process. He said:[37]
In the present case, a weighing of these considerations inevitably compels the conclusion that a stay should be ordered. The public interest in securing the convictions of the appellant is clearly outweighed by other relevant considerations. The tendering of the confessions by the prosecution was vexatious, oppressive and unfair to the appellant in that it exposed him to re-litigation of the issue of the voluntariness of the confessional statements in the records of interview. This issue had already been conclusively decided in the appellant’s favour because the confessions sought to be tendered – although relating to different crimes – were made at the same time and in exactly the same circumstances as the confessions that were the subject of the voir dire. Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings is not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue. These considerations necessarily prevail over any competing public interest in the securing of convictions against the appellant.
[37] Rogers at 256-257
Mason CJ does not refer to the principle of incontrovertibility. He concluded that the conduct of the Crown in seeking to re-litigate the voluntariness issue in the 1992 proceedings was vexatious, oppressive and unfair and, therefore, the prosecution should be stayed.
In my opinion, it is important to observe that Mason CJ’s Judgment should be seen in the context that re-litigation of the issue of voluntariness, sought by the Crown in the 1992 proceedings, challenged a finding in the earlier criminal prosecution which resulted in verdicts of acquittal.
(v) The Decision of The Queen v Carroll
In this case, Carroll was charged with perjury. The charge arose from evidence he gave in his murder trial that he had not killed a little girl who was murdered. Carroll had been found not guilty of murder in the previous trial. The issue in this trial was whether he had committed perjury in giving evidence that he had not killed her. It was acknowledged by the Crown during submissions that the perjury trial, in which he had been found guilty, had been conducted, in practical effect, as a re-trial for murder. The appeal before the High Court related to the dismissal of the Trial Judge of an application to stay the prosecution for perjury as an abuse of process. It was held by the High Court that the prosecution should have been stayed because it sought to controvert the earlier verdict of acquittal for murder.
In a joint Judgment, Gleeson CJ and Hayne J identified that the application in Carroll for a stay of the prosecution was grounded on the principle of incontrovertibility stated in Rogers. Their Honours said:[38]
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.
A reference to a footnote has been omitted.
[38] (2002-2003) 213 CLR 635 at 647-648 [35]
Emphasis added.
Shortly after this passage, their Honours went on, by reference to authorities, to further explain the principle of incontrovertibility:[39]
The principle is stated in various ways. In Garrett v The Queen, Barwick CJ, with whose reasons Stephen, Mason and Jacobs JJ agreed, described it as being that “the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict” (emphasis added). Reference to calling in question and tending to overturn give the principle great width: … .
In Connelly v Director of Public Prosecutions Lord Pearce said:
“A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas.” (Emphasis in original.)
His Lordship was speaking in a context in which the reference to a discretion was related to the inherent jurisdiction of a court to prevent oppression and abuse of process. By hypothesis, in a case of the kind his Lordship had in contemplation, the laying of a charge would constitute oppression and abuse of process, when viewed in the light of the considerations of double jeopardy which underlie a plea of autrefois acquit, even though such a plea is not available.
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.
References to footnotes have been omitted.
[39] (2002-2003) 213 CLR 635 at 648-649 [37] to [40]

Finally, Gleeson CJ and Hayne J emphasised that the principle of incontrovertibility applied where there has been a verdict of acquittal arising from a previous trial of a defendant. This is made plain in the following passage:[40]
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.)
In Rogers, a majority of the Court held that for the prosecution to tender in evidence at a later trial records of interview which had been held inadmissible in an earlier prosecution for other offences would constitute a direct challenge to the earlier determination of admissibility – a determination which, if not final when made on the voir dire, became final once verdicts of acquittal were returned. That being so, the majority held that the tender would be an abuse of process. In Rogers, there had been a finding by the trial judge in the first trial that the records of interview were not made voluntarily. There was, therefore, a positive finding to which it could be said that effect should be given. The abuse of process identified by the majority could, therefore, be said to lie in the prosecution seeking to relitigate that finding and have the trial judge at the second trial conclude that the record of interview was not shown to have been made involuntarily.
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 consideration that may be relevant in dealing with them cannot be rigidly confined. …
To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.
References to footnotes have been omitted.
[40] At 650-651 [45] to [48]
Emphasis added.
In their joint Judgment in Carroll, Gaudron and Gummow JJ, after referring to the decisions of Rogers and Garrett, said:[41]
We agree with the remarks of the Chief Justice and Hayne J in the present case respecting the decisions in Rogers and Garrett. Those authorities support the proposition that a prior acquittal itself cannot subsequently be controverted; it is unnecessary here to decide whether they support any wider proposition.
[41] (2002-2003) 213 CLR 635 at 663 [93]
(vi) Conclusion
The submission on behalf of the Applicants is that the decision in Rogers supports the proposition that the principle of incontrovertibility has application to the determinations of fact by Chief Judge Worthington in the sentencing proceedings.
In my opinion, the joint Judgment of Deane and Gaudron JJ stands only for the proposition that a prior acquittal cannot be subsequently controverted. The fact that in Carroll the decision in Garrett v The Queen[42] is mentioned as standing alongside Rogers, supports this conclusion. As I stated earlier, the Judgment of Mason CJ does not specifically address the principle of incontrovertibility.
[42] (1977-1978) 139 CLR 437
Accordingly, I reject the submissions that the decision in Rogers is authority for the proposition that the principle of incontrovertibility applies to the determinations of fact made by the Chief Judge.
(vii) Should the Principle of Incontrovertibility be Extended?
The conclusion I have reached does not bring the curtain down on the issue whether the principle of incontrovertibility applies to the determinations of fact made by Chief Judge Worthington in the sentencing proceedings. In Carroll, Gleeson CJ and Hayne J observed:[43]
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.
[43] At 650 [45]
Gaudron and Gummow JJ in Carroll also said that it was unnecessary to state whether Rogers stands for any wider proposition than verdicts of acquittal, are incontrovertible.
I mentioned earlier that the Applicants refined their earlier submission that the incontrovertible principle applied to any final judicial determination of fact, when I heard further submissions on 22 January 2008. It was then the submission, on behalf of the Applicants, that the principle of incontrovertibility applies to all final judicial determinations of fact which were made following a hearing on the merits by the tribunal of fact. In making this submission, the Applicants relied upon the observations of Howie J (NSW Supreme Court) in The Queen v Gilham[44]. It was the decision of Howie J which was considered on appeal by the New South Wales Court of Criminal Appeal in the decision of Gilham v The Queen[45].
[44] NSWSC; unreported Judgment (Howie J) delivered 21 March 2007 p43 [142]
[45] (2007) NSWCCA 323
In The Queen v Gilham, Howie J said:[46]
In the passage quoted above from Carroll Gleeson CJ and Hayne J left open the limits of the principle of incontrovertibility. I would limit it, at least in the absence of any statutory provision to the contrary to a decision following a hearing on the merits by the tribunal of fact.
[46] NSWSC; unreported Judgment (Howie J) delivered 21 March 2007 p43 [142]
It was submitted on behalf of the Applicants that the determinations of fact by Chief Judge Worthington in the sentencing proceedings were final and occurred following a hearing on the merits by a tribunal of fact. Accordingly, it is submitted that the incontrovertible principle applies and that it is an abuse of process on the part of the Crown to seek to controvert those findings in the present proceedings.
It needs to be said from the outset that Howie J’s observations would appear to be founded upon his observations mentioned earlier, that Rogers held that the principle of incontrovertibility applied to the Voir Dire decision of the Trial Judge in 1989, and that it was then an abuse of process to seek to controvert that decision in later proceedings. I do not share that view. I mentioned earlier that, in my opinion, the decision in Rogers is confined to applying the incontrovertible principle to verdicts of acquittal. As I have said, in my opinion, the decision in Carroll makes this clear.
Whilst Rogers is not authority for the proposition submitted by the Applicants that a final judicial determination of fact made following a hearing on the merits by a tribunal of fact cannot be controverted, the question remains whether the principle can be extended to apply to final determinations of fact made in those circumstances.
I said earlier, that in my opinion, the principle of incontrovertibility, as expressed in Rogers, arises in the context of a verdict of acquittal following a Trial. It is founded on the Latin maxim translated as the need for decisions of courts, unless set aside or quashed, to be accepted as incontrovertibly correct. The principle stands alongside other principles such as autrefois acquit (or convict), the unassailable nature of an acquittal, the need for consistency and the rule against double jeopardy, all of which have application in circumstances where there has been a prior verdict. Should, then, a principle of incontrovertibility be extended to a final determination of fact made after a hearing on the merits?
In support of his contention that the principle of incontrovertibility applies to the final determinations of fact of Chief Judge Worthington, which it is said were made following a hearing on the merits, Mr Game SC referred to the decisions of Kingswell v The Queen[47] and R v Palaga[48].
[47] (1985) 159 CLR 264
[48] (2001) 80 SASR 19
Kingswell stands for the proposition that where an aggravating factor is not an element of the offence, but the Crown seeks to rely upon it, then, as a rule of practice, it should be pleaded in the indictment and, if necessary, as an alternative charge. These circumstances are to be contrasted where the circumstances said to aggravate the offence are only relevant to the exercise of the discretion by the sentencing judge.[49]
[49] Kingswell at 280
In Palaga, a circumstance of aggravation, not being an element of the offence, was not pleaded in the Information by the Crown. The sentencing judge proceeded to sentence on the circumstance of aggravation. It was held that the Judge was correct to do so, and there had been no miscarriage of justice arising from the Judge adopting this course.
Those authorities were cited to highlight that in situations similar to Palaga, the circumstances of aggravation could be determined by the Jury (and would have been had they been pleaded), or the Judge (as was the case). It was submitted that it would be illogical to conclude that facts making up aggravating circumstances, when determined by the Jury, would be subject to the principle of incontrovertibility, but the same circumstances, if determined by the Judge in the sentencing proceedings would not be the subject of the principle of incontrovertibility.
In my view, the determination of the issue of whether the principle of incontrovertibility should be extended is found in examining the development of this principle and other principles, such as autrefois acquit, double jeopardy and the unassailable nature of an acquittal. They all have their roots in the Latin maxims which were identified in the passage in the Judgment of Gummow and Hayne JJ in Filipowski[50], to which I referred earlier. These maxims are said to be “ … fundamental to any civilized and just judicial system”.[51] These principles go to the very heart of the criminal justice system.
[50] At 343 [41]: also see: Carroll per Gaudron and Gummow JJ at 66 [86]
[51] Rogers v The Queen per Deane and Gaudron JJ at 273
As the principles are so fundamental to the criminal law, including the principle of incontrovertibility, there would need to be clear warrant to extend the application of a principle of incontrovertibility, which is currently confined in its application to verdicts of acquittal and conviction, to all final determinations of fact made by a tribunal of fact following a hearing on the merits. I am not convinced that there is a warrant to take that step. There is nothing in principle to indicate it should be so extended.
In addition to the reasons I have outlined, the very issue in these proceedings is a strong indication that the principle of incontrovertibility should not be extended to determinations of fact made following a hearing on the merits by a tribunal of fact. On the face of it, determinations of fact following a Disputed Facts hearing arising in the course of a sentencing process, would qualify for the application of the principle. Those findings of fact following a Disputed Facts hearing are made by a tribunal of fact following a hearing on the merits.
Because Section 6 of the Criminal Law (Sentencing Act) 1988 provides that a Judge is not bound by the rules of evidence in determining a sentence, a Judge in a Disputed Facts hearing may admit evidence which would not be admissible in a criminal prosecution and rely on that evidence in the fact finding for the purpose of sentencing. Surely, fact finding of that nature could not wear the mantle of being incontrovertible. But it would wear that mantle if the principle of incontrovertibility was extended to final determinations of fact made following a hearing on the merits. The facts determined in the Disputed Facts hearing would have been made following a hearing on the merits. In my opinion, this example demonstrates the fallacy in the proposition that the principle of incontrovertibility applies to final determinations of fact following a hearing on the merits.
The submission by the Applicants that the principle of incontrovertibility applies to facts determined following a hearing on the merits by a tribunal of fact, should not be accepted. Accordingly, the principle of incontrovertibility does not apply to the determinations of fact made by the Chief Judge.
Finally, there is another hurdle which appears to stand in the way of the Applicants’ submission that the Chief Judge’s final determinations of fact are incontrovertible. I have had occasion, earlier, to refer to the New South Wales Court of Criminal Appeal of Gilham v The Queen[52] and the decision of the majority that the principle of incontrovertibility has no application to facts found by a sentencing judge in sentencing proceedings. I now turn to consider that decision in more detail.
[52] (2007) NSWCCA 323
(viii) The Decision in Gilham v The Queen
The facts in Gilham were that in August 1993, Gilham’s mother and father were murdered. The next day, Gilham was charged with the murder of his brother. In 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 plea of guilty to manslaughter was entered on the basis that Gilham killed his brother, but did so as a result of provocation brought about by the fact that his brother killed his parents. In February 2006, the Director of Public Prosecutions charged Gilham with the murder of his parents. Gilham applied for a permanent stay on a number of grounds. This was refused at first instance. He appealed to the New South Wales Court of Criminal Appeal.
The principle of incontrovertibility was an important issue in the appeal. One matter that required the Court’s consideration was whether any findings of fact in the earlier sentencing proceedings of Gilham for the offence of manslaughter attracted the incontrovertibility principle.
During the course of his Reasons, McClellan CJ at Common Law rejected the notion that facts determined in sentencing proceedings attract the incontrovertibility principle and, thus, cannot be controverted in subsequent criminal proceedings. With regard to this issue, McClellan CJ at Common Law said[53]:
[203] The remaining question is the consequence, if any, of the “findings” made by the sentencing judge. Howie J was of the view that although the sentencing judge had sentenced, as he was required to do, having regard to the agreed facts, this did not mean that he found them to be true. The facts agreed and provided to the sentencing judge indicated that the applicant came upon his brother who was in the process of igniting the body of their mother having previously stabbed both of them many times causing their deaths. Those facts necessarily excluded the applicant from being the killer of the parents.
[204] However, there was no verdict acquitting the applicant of the killing of his parents. Furthermore, he has never been in any sense “in jeopardy” for the alleged killing by him of his parents. The sentencing judge was precluded from considering that possibility by the agreed facts.
[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] QCA 260; (2002) 132 A Crim R 108.
[53] Gilham v The Queen (2007) NSWCCA 323 at 55-56 [203] to [208]
I should mention that the New South Wales Court of Criminal Appeal sat five Judges on this Appeal. Hidden J and Latham J agreed with the Reasons of McClellan CJ at Common Law. Both Chief Justice Spigelman and Hulme J gave separate Reasons. Neither of the latter Judges specifically addressed the question of whether the principle of incontrovertibility can apply to findings of fact in sentencing proceedings.
I do not accept the submission by Mr Game SC that the observations of McClellan CJ at Common Law were obiter. The facts upon which the sentencing judge sentenced Gilham, and whether they could be controverted, was one of the issues which stood for determination in the proceedings. I agree that the circumstances in Gilham are distinguishable from the present, in the sense that the sentencing judge sentenced on an agreed set of facts, whereas in the proceedings before the Chief Judge, the facts determined by him were in dispute. However, that difference does not affect the decision that the principle of incontrovertibility does not apply to facts found in the sentencing proceedings.
McClellan CJ at Common Law (in paragraph 206) expressed the view that the principle of incontrovertibility is only relevant to facts “found” in the course of determining guilt or innocence and, on that basis, he rejected the notion that the principle applied to facts “found” in the course of sentencing. The conclusion I reached a little earlier in these Reasons is consistent with that conclusion.

I earlier stated the principles that applied to the offence of Conspiracy To Attempt To Pervert The Course Of Justice. However, it is a worthwhile exercise to re-state some of the principles again in the context of considering this ground. In Rogerson, Brennan and Toohey[95] stated that an agreement that an act be done, which has a tendency to impair the capacity of a court to do justice, is the actus reus of a conspiracy to pervert the course of justice (or, in this case, a conspiracy to attempt to pervert the course of justice). They also stated that to establish a conspiracy to pervert the course of justice (or, in this case, a conspiracy to attempt to pervert the course of justice) “ … it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect.[96] Brennan and Toohey JJ said in that context, “ … knowledge and intent relate to the acts and circumstances contemplated by the conspirators …”.[97] These observations highlight that there are two intentions which need to be proved in a conspiracy to attempt to pervert the course of justice namely, first, an intention to enter into an agreement by the alleged conspirators and, secondly, an intention of the alleged conspirators to carry out an act or acts which, if carried out would, to their knowledge, have a tendency to pervert the course of justice. Brennan and Toohey JJ in Rogerson addressed the latter intention in the following manner:[98]
In the present case, we are concerned with an alleged conspiracy to do an unlawful act, namely an act that would have the effect of perverting the course of justice. The prosecution had to prove that the conspirators intended that, if the relevant act was done pursuant to the conspiracy and in the circumstances contemplated by the conspirators, it would have the effect of perverting the course of justice.
[95] Rogerson at 280
[96] Rogerson at 282
[97] Rogerson at 282-283
[98] Rogerson at 281
This latter intention was also referred to by Brennan and Toohey JJ in Rogerson, when they were discussing how an act occurring during a police investigation may have a tendency to pervert the course of justice, albeit that a police investigation of itself is not part of the course of justice. They said:[99]
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.
Emphasis added.
[99] Rogerson at 283-284
It was explained by Dawson J in Meissner v The Queen, that it is immaterial whether any interference with the administration of justice actually occurs. His Honour said:[100]
It is the tendency of conduct to pervert the course of justice coupled with the intention to do so which provides the substance of the offence and it is immaterial whether any interference with the administration of justice actually occurs.
A reference to a footnote has been omitted.
[100] (1995) 184 CLR 132 at 156-157; see also: McHugh J in Rogerson at 298
In Rogerson, Brennan and Toohey JJ said that the intention could be proved by two routes. If the act, the subject of an agreement, by its nature has a manifest tendency to pervert the course of justice, then proof of the agreement itself would probably be sufficient. If the act is not of such a nature, then proof of intention by other evidence, will need to be undertaken. Their Honours said:[101]
Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator’s knowledge of the nature of the relevant act is of critical importance. An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice. An agreement that such an act be done made among persons who do not know that the act has such a tendency and who do not intend it to have that effect is not a conspiracy to do an unlawful act. To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect.
[101] Rogerson at 282
In this prosecution, it is the Crown case that both intentions (to enter into the agreement and to do acts to pervert the course of justice) can be inferred from proven facts or circumstances.
(iii) The First Submission – Evidence Cannot Prove The Offence
The submission on behalf of the Applicants is that on the evidence available, the Crown cannot prove beyond reasonable doubt that there was any agreement reached between Eugene McGee and Craig McGee, following the collision, in which there was a common intention to do an act or acts to pervert the course of justice. In other words, a jury could never draw inferences from the evidence to be presented by the Crown to be satisfied beyond reasonable doubt that Eugene McGee and Craig McGee entered into an agreement that they would take steps to ensure that Eugene McGee remained out of Police contact in order to avoid Eugene McGee being required to undertake a blood alco-test or breath analysis, and to avoid having the state of his sobriety being investigated by the Police. It is not in dispute that the Crown case is a circumstantial one and that to prove its case the Crown will need to have the jury draw inferences from proven facts.
It was the Crown’s submission that it will be open to the jury, on the evidence to be presented, to draw the inference that Eugene McGee left the scene of the collision with the intention of remaining out of contact in order to avoid being required to undergo an alco-test or breath analysis and to avoid having the state of his sobriety investigated after the collision. Furthermore, it is said that it will be open to the jury to draw the inference that in one or more of the telephone calls between Eugene McGee and Craig McGee held after the collision, the first being at about 5.30 P.M. and the last a little after 7.00 P.M., and most likely the call in excess of five minutes made at 5.37 P.M., that Eugene McGee sought to enlist the assistance of Craig McGee to assist him in his objectives. Furthermore, it is submitted that it will be open to the jury to draw the inference that Craig McGee agreed to assist, and between them they agreed that they would take steps to ensure Eugene McGee remained out of contact with the Police in order to avoid Eugene McGee being required to undertake an alco-test or a breath analysis, or to avoid having the state of his sobriety being investigated by the Police.
The Crown submits, from the following facts drawn from the evidence, that the jury can draw the inferences required to find each Applicant guilty of the charge:
·      During a luncheon that took place between 1.00 P.M. and 4.18 P.M. on 30 November 2003, Eugene McGee consumed alcohol.
·      At approximately 5.08 P.M., a car being driven by Eugene McGee collided with a cyclist on the Kapunda to Gawler Road.
·      Eugene McGee continued to drive after he struck the cyclist.
·      Eugene McGee remained at a place or places unknown from the time of the collision until some time about 7.40 P.M. on Sunday, 30 November 2003.
·      There were a number of telephone calls between Eugene McGee and Craig McGee between 5.37 P.M. and 7.06 P.M. on Sunday, 30 November 2003.
·      An arrangement was made between Eugene McGee and Craig McGee to meet at their mother’s house at Kapunda some time after the collision.
·      Craig McGee’s return to his mother’s home at some time in the evening of 30 November.
·      Eugene McGee’s return to his mother’s home some time after 6.50 P.M. on Sunday, 30 November.
·      Craig McGee, later in the evening, in his motor vehicle, transported Eugene McGee past a Police road block on the Kapunda to Gawler Road.
·      The knowledge of Eugene McGee, as a criminal lawyer, of the requirements of alco-testing following a collision and the relevance of a driver’s state of sobriety in that situation.
As I mentioned earlier, the Crown case relies upon circumstantial evidence. The jury cannot return a verdict of guilty “ … unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”.[102] I have taken that quote from the joint Judgment of Gibbs, Stephen and Mason JJ in Barca v The Queen. It is worthwhile setting out the entire passage in which that quote is contained:[103]
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are “such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused”. Peacock v. The King: To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be “the only rational inference that the circumstances would enable them to draw”: Plomp v. The Queen; see also Thomas v. The Queen. However, “an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence.” (Peacock v. The King). These principles are well settled in Australia.
References to footnotes have been omitted.
[102] (1974-1975) 133 CLR 82 at 104
[103] At 104
Mr Game SC submitted that it would be open to a jury to infer one or more reasonable hypotheses consistent with innocence from the evidence to be presented, and that if that is the case, the jury would be bound to find each Applicant not guilty of the offence charged. That may be so. He submitted that a problem confronting the Crown case is that whilst there is evidence that Eugene McGee was an experienced criminal lawyer who had knowledge of the requirements of alco-testing and breath analysis and the relevance of alcohol consumption of a driver of a motor vehicle arising from a collision where injury or death occurred, there is an absence of any evidence that Craig McGee had any such knowledge. Craig McGee was a school teacher. That may be so. That is clearly a relevant factor that the jury is likely to consider during their deliberations and may present as a difficulty, as Mr Game submitted. However, in the end, matters such as these are for the jury’s considerations.
Before I leave this submission, I should refer to a submission outlined in the written submissions on behalf of Eugene McGee. It was submitted that the nature of the act (or acts) said to have been contemplated for the purpose of perverting the course of justice needs to play an active role in diverting, misleading or frustrating the Police. It was submitted that if the act is not “active” in nature, then no offence is committed under Section 256 of the CLCA. Examples of acts which were “active” in nature were presented. Those examples included the presenting of a false story to the Police in Rogerson regarding the source of the money in the bank account, for the purpose of deflecting the Police investigation. Another example put forward was where a passenger and driver swap seats following an accident and both state to the Police that the passenger was the driver of the vehicle at the time.
It was submitted that even if it is assumed that Eugene McGee and Craig McGee entered into an agreement alleged by the Crown, the agreement related to conduct which was passive in nature. It was further submitted that “non assistance” does not constitute an offence under Section 256. Further, the submission made on behalf of the Applicants is that it is not an offence under the Section to remain out of contact or “staying away” knowing that the Police were likely to be seeking contact and, therefore, an agreement to maintain the remaining out of contact or “staying away” is not conspiracy to commit an offence.
I do not accept this submission. If it is assumed that there was an agreement of the nature alleged by the Crown then, in my opinion, such an agreement would constitute a conspiracy to attempt to pervert the course of justice. Conduct designed to avoid contact with the Police for the purpose of avoiding being required to undergo an alco-test or breath analysis, or to avoid the Police investigating the state of sobriety of a driver is conduct which “ … has a tendency to deflect the police … from adducing evidence of the true facts[104] and would constitute an offence under Section 256. Whether such conduct is labelled “positive” conduct or not, is not relevant.
[104] Rogerson at 284
There may be difficulties in the Crown case, as Mr Game SC submitted. I make no comment in this regard. It is not appropriate for me to make any observations regarding the strength or otherwise of the Crown case at this stage. For the Applicants to succeed on this ground, they need to establish that the Crown case is foredoomed to fail. The Applicants need to satisfy me that it is plain beyond argument that the prosecution is foredoomed to fail. I am not satisfied, for the reasons I have given.
Accordingly, the Applicants fail with respect to this submission.
(iv) Second Submission – Wrongly Charged under Section 256
The second submission under Ground Three is that the prosecution is foredoomed to fail because the conspiracy charge by the Crown should have relied upon Section 243 of the CLCA, and not Section 256. Section 256(1) provides:
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.
Emphasis added.
The reference to “this Part” is a reference to Part 7 (Offences of a Public Nature) of the CLCA.
Mr Game SC submitted that the words in Section 256 “ … in a manner not otherwise dealt with in the preceding provisions of this Part …” mean that a person does not commit an offence of obstructing or perverting the course of justice under Section 256, if the offender’s conduct brings it within one of the specific offences set out earlier in the Part. It was the submission on the part of the Applicants that, on the Crown case, any charge of conspiracy should have relied upon Section 243 and not Section 256.
Section 243 of the CLCA provides:
243    A person who –
(a)     fabricates evidence or alters, conceals, or destroys anything that may be required in evidence at judicial proceedings; or
(b)     uses any evidence or thing knowing it to have been fabricated or altered,
with the intention of –
(c)     influencing a decision by a person whether or not to institute judicial proceedings; or
(d)     influencing the outcome of judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time),
is guilty of an offence.
Penalty: Imprisonment for 7 years.
It was Mr Game SC’s submission that the case alleged by the Crown is a conspiracy to conceal Eugene McGee’s blood alcohol and his state of sobriety. He argues that what is being alleged is that the agreement was to conceal the state of Eugene McGee’s blood and also his personal state or appearance. In those circumstances, the proper charge is a conspiracy to conceal evidence relying upon Section 243 and the common law. Mr Game SC submitted that Eugene McGee’s blood and his appearance were real evidence, in the same way as any other real evidence such as documents or a knife or a gun is evidence.
The Crown submitted that on a proper construction of Section 256, it provides a separate offence to those offences which are set out in the Sections which precede it. It was submitted that the words in the Section “ … in a manner not otherwise dealt with in the preceding provisions of this Part …”, do not mean that an offence only arises under the Section if the circumstances do not fit an offence under any preceding provision. The Crown submits that it is within the Prosecution’s discretion whether it lays a charge under Section 256 or any of the preceding Sections in Part 7.
I agree with the Crown’s submission. The relevant words are provided to ensure that a person cannot be guilty of a specific offence contained in the earlier provisions of the Part and the more general offence contained in Section 256 arising out of the same circumstances. This construction is supported by the terms of sub-section(2) of Section 256, which provides that where a person is found not guilty of a charge laid under any preceding provision, the person may be found guilty of an offence under Section 256. In other words, the offence under Section 256 is an alternative to a charge laid under a preceding provision. In my opinion, the Crown was entitled to lay the charge in the Information relying upon the offence provided by Section 256.
I should add that, in any event, I am not satisfied that in failing to stop and remaining out of contact could be construed as concealing evidence within the meaning of Section 243 of the Act. The blood in Eugene McGee’s body and his physical body are not the same as real evidence, as suggested by Mr Game SC.
The Applicants fail on this submission.
(v) Third Submission – Too Remote from the Course of Justice
As I understand this submission, it is similar in nature to the “passive” conduct submission I mentioned earlier. Previously, I referred to the observation of Brennan and Toohey JJ in Rogers[105], where they said that although Police investigations into possible offences do not form part of the course of justice, an act which has a tendency to deflect the Police from adducing evidence of the true facts is an act which tends to pervert the course of justice.
[105] At 283-284
Mr Game SC submitted that the allegation is that the Applicants agreed to take steps to prevent the Police from making contact with Eugene McGee. It is submitted that to simply take steps to prevent the Police making contact is too remote from the course of justice, in the sense that the agreement did not involve taking active steps to impede the investigation.
I mentioned earlier that conduct or acts done to avoid the Police making contact to achieve the objects of avoiding being required to undertake an alco-test or breath analysis, and to avoid having the state of his sobriety investigated by the Police, has a tendency to deflect the Police from adducing the true facts. Such conduct, standing alone, would constitute an offence under Section 256 of the CLCA.
The argument that such conduct could not be considered part of the course of justice is rejected.

The Applicants fail on this submission.
Fourth Ground – Conspiracy Charged Instead of Substantive Offence
It is submitted that on the evidence to be presented, the Crown could have charged each of the Applicants with the substantive offence of Attempting To Pervert The Course Of Justice, contrary to Section 256 of the CLCA instead of the current charge of Conspiracy. The Applicants refer to the rule of practice that where the evidence indicates that there has been the commission of a substantive offence by two or more people, then they should be each charged with that offence and not with a conspiracy to commit the offence. The Applicants submit that the Crown in failing to follow the rule of practice is an abuse of process.
In The Queen v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ said:[106]
If the Crown’s belief was that it had effective charges for the substantive offence then it should have proceeded with those charges and sought on conviction an order for forfeiture which the Court would have been authorized to make. If there had been some real basis for doubting that the offence had been committed the Crown may perhaps have been justified in alleging an attempt or a conspiracy. Generally speaking, it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed.
[106] (1981-1982) 148 CLR 32 at 38
In like terms, Wells J in The Queen v Debelis said:[107]
The rule of practice adverted to (which, to my understanding, has not yet become a rule of law) is to the effect that where the Crown intends, in the course of a prosecution, to prove, if it can, that two or more defendants jointly committed a substantive offence, it is wrong to charge a conspiracy to commit the same offence. But the rule of practice rests upon the identity of the substantive offence with the very offence that is the object of the conspiracy.
[107] (1983-1984) 36 SASR 1 at 3
The short answer to the submission is that even if it is accepted that the evidence available is sufficient to prove the Applicants have committed the substantive offence under Section 256, it is not an abuse of process for the Crown to lay the charge of conspiracy. The rule is a rule of practice only. It is within the prosecutorial discretion to charge conspiracy. It is not suggested that the Crown had an improper or ulterior purpose for adopting such a course.
The Crown submitted that there were good reasons for not charging the substantive offence under Section 256. It is unnecessary to outline those submissions. As I said, the submission cannot succeed as it is not an abuse of process to charge conspiracy, even if there is evidence, which would have permitted charging the Applicants with an offence under Section 256.
This ground fails.
Fifth Ground – The Rolled Up Ground
The final submission on behalf of the Applicants is that it was submitted that if the Court finds that all of the grounds raise some unfairness or oppression in the prosecution, but none of the grounds creates a degree of unfairness or oppression sufficient to stay the proceedings, then the Court is entitled to take the cumulative effect of any unfairness or oppression found and, on that basis, order a stay of proceedings.
At the hearing on 22 January 2008, a further submission was added. It was submitted that the manner in which the Crown has conducted the prosecution “ … has contributed to the overall oppression”. The Applicants point to the time which has elapsed since the commencement of the prosecution. They also submit that the changes to the Crown case, over a period of time, have added to the oppression. I will deal with this submission in first instance.
The Information and Summons instituting this prosecution was filed in the Magistrates Court on 29 August 2005. From then to the present, is a long time. However, apart from the Crown’s failure to properly particularise its case, there is no evidence which suggests there has been delay on the part of the Crown in progressing the prosecution to trial.
Some delay must have been caused as a result of the Crown not providing proper Particulars of its case. I have referred earlier in these Reasons to the Crown’s failure to provide adequate Particulars in a timely fashion. The Crown, in the course of providing seven sets of Particulars, has altered its case. For example, the Crown case which the Applicants now face is markedly different than the case presented in the Particulars furnished on 9 July 2007. The Crown’s inability to furnish appropriate Particulars until the hearing in August 2007 has been less than satisfactory.
In my opinion, each of the earlier four grounds stands alone. In other words, each ground stands or falls alone. A particular ground cannot gain any strength from any other ground.
As a result of the view I take, the submission regarding delay does not take the matter any further. In any event, whilst I recognise that there must have been some delay brought about by the Crown failing to provide appropriate Particulars of the charge, as I said, there has been no evidence that other conduct of the Crown has caused delay in bringing the matter for trial.
This ground fails.
Summary
Each of the Grounds which the Applicants have presented in support of their respective Applications have failed. Accordingly, the respective Applications for a permanent stay of the prosecution are refused