R v McGee - [2007] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCGEE & ANOR
[2007] SADC 10
Reasons for Decision of His Honour Judge Robertson
16 February 2007
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY
Applications to quash Information - charge of conspiracy to attempt to pervert the course of justice - claim that offence charged is not known to the law of South Australia - claim that charge should be conspiracy to pervert the course of justice - question whether there is an offence of attempt to pervert the course of justice and an offence of pervert the course of justice - conspiracy to do an unlawful act - unlawful act can be crime at common law or under Statute - Section 256(1) offence of attempt to pervert the course of justice.
Held - Information charges an offence known to law of South Australia.
Criminal Law Consolidation Act 1935 ss256(1), 270, referred to.
Mulcahy v The Queen (1868) L.R.3 HL.306; The Queen v Rogerson (1991-1992) 174 CLR 268, applied.
The Queen v Vreones (1891) 1 QB 360, discussed.
Lipohar v The Queen (1999-2000) 200 CLR 485; R v Grimes (1968) 3 All ER 179; Regina v Andrews (1973) 1 QB 422; R v Rowell (1978) 1 All ER 665; Regina v Machin (1908) 1 WLR 760, considered.

R v MCGEE & ANOR
[2007] SADC 10
Judge Robertson
Criminal

The Defendants, Craig Patrick McGee and Eugene Norman McGee (“Defendants”), are charged on Information with Conspiracy To Attempt To Pervert The Course Of Justice (Common Law and Section 256(1) of the Criminal Law Consolidation Act 1935) (“the Act”). The Particulars of the Offence, as stated in the Information, are that the Defendants, on 13 November 2003, at Kapunda and 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.
Section 256(1) of the Act 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 preceding provisions of this Part is guilty of an offence.
This Section is included in Part VII of the Act, which is entitled “Offences Of A Public Nature”. Part VII was introduced into the Act by amendment in 1992. At the time of the introduction of Part VII into the Act, various old common law offences were abolished.
The initial charge in the Information laid in this Court was a charge of Conspiracy To Pervert The Course Of Justice (Common Law and Section 270 of the Criminal Law Consolidation Act 1935). This was not the charge for which the Defendants were committed to this Court by a Magistrate. The current charge of Conspiracy To Attempt To Pervert The Course Of Justice, was the charge for which they were committed. I gave leave to the Crown to amend the Information to bring it into line with the original charge which was laid in the Magistrates Court Information and Summons, which was the charge, as I said, on which the order for committal to this Court was made.
The Defendants have challenged the Information, as presently amended, in that it is said that the offence contained in the charge is not an offence known to the law of South Australia. The respective applications of the Defendants seek an order quashing the Information on the ground that the Information does not disclose an offence triable in the Courts of South Australia (Lipohar v The Queen)[1]. The current Application which I am considering is the first of a number of challenges brought by the Defendants. To date, neither Defendant has been arraigned.
[1] (1999-2000) 200 CLR 485 at 510 [60]
It is not in dispute that a charge of conspiracy to commit an unlawful act is a common law offence[2]. It is also not in dispute that an unlawful act, for the purpose of the common law of conspiracy, may be a common law offence or a statutory offence. However, it was submitted by Ms Powell QC, Counsel for the Defendant Craig McGee, that whilst the Information charges a Conspiracy To Attempt To Pervert The Course Of Justice (using the language of Section 256(1) of the Act), that is not an offence known to the common law and, thus, it is not an offence known to the law of South Australia. It was her submission that the only offence known to the common law is that of a conspiracy to pervert the course of justice.
[2] Mulcahy v The Queen (1868) L.R.3 HL.306 at 317; The Queen v Rogerson (1991-1992) 174 CLR 268 at 281
I pause here to say that throughout these Reasons I will refer mainly to the submissions of Ms Powell QC. Mr Abbott, Counsel for the Defendant Eugene McGee, during the hearings adopted the submissions of Ms Powell QC. He also made some submissions as an adjunct to the submissions made by Ms Powell QC. For the purposes of economy I will, as I said, refer mainly to the submissions of Ms Powell QC. However, it must be understood that when I refer to the submissions of Ms Powell QC, I am also referring to the submissions adopted by Mr Abbott on behalf of the Defendant, Eugene McGee.
Ms Powell QC acknowledged that in the ordinary course where the offence of conspiracy relates to unlawful conduct which is a statutory offence, then it is appropriate to use the language of the statutory provision as a basis for charging a conspiracy to commit the statutory offence. However, it was her submission that because of the unique historical background of the common law with respect to the offence of perverting the course of justice, that the only common law offence is that of conspiracy to pervert the course of justice. She submitted that it was the only offence recognised by the common law prior to the 1992 amendments to the Act and that the position remained the same after the amendments.
Ms Powell QC submitted that the common law prior to the introduction of Section 256(1) in the Act provided for only one substantive offence, namely that of attempt to pervert the course of justice. It was her submission that there was no common law substantive offence of perverting the course of justice. Ms Powell QC further submitted that the only conspiracy offence at common law is the offence of conspiracy to pervert the course of justice, although the object of the offence was the common law offence of attempt to pervert the course of justice. In other words, it was Ms Powell QC’s submission that there was never a common law offence of conspiracy to attempt to pervert the course of justice.
I have earlier used the expression “substantive offence” when referring to the common law offence of attempt to pervert the course of justice. I have done this because the courts have long recognised that the offence of attempt to pervert the course of justice is a substantive offence in itself, although it is described as an “attempt”. It is not an inchoate offence in the sense that it is an offence to attempt to commit a substantive offence[3]. The offence “ … 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”[4]. As McHugh J said in Rogerson[5], the use of the word “attempt” is misleading.
[3] The Queen v Vreones (1891) 1 QB 360; The Queen v Rogerson (1991-1992) 174 CLR 268
[4] The Queen v Rogerson (per Brennan and Toohey JJ) at 279
[5] At 298
One of the issues which took up considerable time during submissions was whether in the common law there was in addition to the substantive offence of attempt to pervert the course of justice, a substantive offence of pervert the course of justice. It was not in dispute that there was at common law an offence of attempt to pervert the course of justice.
Mr Hinton QC, Counsel for the Director of Public Prosecutions (“DPP”), submitted that there were two offences at common law. He submitted that, as a result, there were also two separate conspiracy offences at common law, namely the offence of conspiracy to pervert the course of justice and the offence of conspiracy to attempt to pervert the course of justice. It was his submission that after the introduction of Section 256(1) of the Act, there remained two conspiracy offences at common law, namely the offence of conspiracy to attempt to pervert the course of justice, the object of that offence being the statutory offence provided by Section 256(1), and the common law offence of conspiracy to pervert the course of justice, the object of that offence being the common law offence of perverting the course of justice. Mr Hinton QC said that, as a result, the charge in the Information is an offence known to the common law.
I have already mentioned that it was the Defendants’ position that there was only one substantive offence known to the common law, being an attempt to pervert the course of justice. Furthermore, that the only conspiracy offence known to the common law was that of conspiracy to pervert the course of justice, the object of which offence was the offence of attempt to pervert the course of justice. Accordingly, it was the Defendants’ submission that whilst conduct aimed at perverting the course of justice contrary to Section 256(1) of the Act may be the object of an agreement between two or more persons, the only offence known to the common law, in those circumstances, is that of conspiracy to pervert the course of justice.
The question whether there are two substantive offences assumed importance because it was the submission of Ms Powell QC that the submission (incorrectly) by Mr Hinton QC that there was a separate common law offence of perverting the course of justice was the basis for the fallacious submission that there were two conspiracy offences known to the common law.
In relation to the issues regarding whether there were two substantive offences at common law and two conspiracy offences, the decision of the High Court in Rogerson[6] played a prominent role in the respective submissions. That appeal arose from convictions of a number of persons for conspiracy to pervert the course of justice.
[6] (1991-1992) 174 CLR 268
Ms Powell QC pointed out that both Mason CJ and McHugh J, when considering the charge of conspiracy to pervert the course of justice did so in the context that the object of that offence was the offence of attempt to pervert the course of justice. Reference was made to the observations of McHugh J where he said[7]:
It follows, as the Court of Criminal Appeal held in this case, that the object of a conspiracy to pervert the course of justice is the substantive offence of attempting to pervert the course of justice.
[7] At 298
Nowhere, submitted Ms Powell QC, did either Justice make any reference to a charge of conspiring to attempt to pervert the course of justice in the context where the object of the conspiracy was the substantive offence of attempt to pervert the course of justice. Nor did they refer to a substantive offence of pervert the course of justice. It was also pointed out that on the facts of Rogerson the acts, the subject of the charge, had only a tendency to pervert the course of justice and, therefore, of a nature relevant to the offence of attempt to pervert the course of justice, but the charge was conspiracy to pervert the course of justice.
Ms Powell QC submitted that Deane J also agreed with the approach taken by Mason CJ and McHugh J that the two offences which correspond with each other is attempt to pervert the course of justice and conspiracy to pervert the course of justice. On one reading of the Judgment that submission may be correct, but whether Deane J did adopt the approach by Mason CJ on this subject is not free from doubt.
On the other hand, Brennan and Toohey JJ expressed the view that there was at common law a substantive offence of attempt to pervert the course of justice and a substantive offence of pervert the course of justice. Brennan and Toohey JJ said in Rogerson[8]:
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.
[8] At 279
Later in their Judgment, Brennan and Toohey JJ again expressed the view that there were two offences when they said[9]:
… 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 decision. 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.
Reference to footnotes omitted.
[9] At 280
It is to be noted in this passage that whilst their Honours refer to two substantive offences, they only refer to the offence of conspiracy to pervert the course of justice.
Mr Hinton QC relied on the observations of Brennan and Toohey JJ in Rogerson to support his submission that there are at common law two offences; one of attempt to pervert the course of justice and one of pervert the course of justice. It followed, said Mr Hinton QC, if there is an offence of perverting the course of justice and an offence of attempt to pervert the course of justice, then there must be two corresponding conspiracy offences.
Ms Powell QC said I should not follow the decisions of Brennan and Toohey JJ because they were out of step with the other judgments in Rogerson. She submitted that there were also other factors which pointed to there not being two separate offences.
In the first place, Ms Powell QC said that in all their research they have not been able to unearth any authority in which there is a reference to an offence of conspiracy to attempt to pervert the course of justice. Furthermore, Ms Powell QC said that the DPP cannot point to any judicial authority where there has been charged an offence of conspiracy to attempt to pervert the course of justice. These propositions were accepted by Mr Hinton QC. Ms Powell QC submitted that this supported the contention that there was only one substantive offence and one conspiracy offence.
The second point raised in support of the Defendants’ contention, arose from the 1992 amendments to the Criminal Law Consolidation Act which included in the new Part VII, Section 256 of the Act. The new Part VII, according to the Second Reading Speech, was introduced to replace centuries of anachronistic common law which came under the general heading of “Offences Of A Public Nature”. In the Second Reading Speech, it was stated that Section 256 of the Act was a codification of the common law offence of attempt to pervert the course of justice. It was submitted by the Defendants that if there was also a separate offence of perverting the course of justice then, surely, Parliament would have dealt with that offence at the same time. It was submitted that it would have been a simple matter of including that offence in Part VII. It was further submitted that the absence of such an offence in Part VII of the Act is an indication that there was no common law offence of perverting the course of justice.
In my view, there is some support in the English authorities for the opinion expressed by Brennan and Toohey JJ in Rogerson that there are two substantive offences known to the common law. In R v Grimes, when considering whether there was a substantive offence of attempting to pervert the course of justice Judge Kilner Brown said[10]:
Certain actions such as cheating or behaving obscenely may not be offences in a private connotation, but once the public is involved, either by agreement with one of its number or more diversely, the law regards such conduct as criminal. Perversion of the course of justice is per se an offence against the public weal. It is recognised as an unlawful act for the purpose of framing a charge of conspiracy to pervert the course of justice and I am of the opinion, whichever way one approaches it, that common law does, and has for many years, recognised an act to pervert the course of justice, or an attempt so to do, as an unlawful act in itself. In my view this count charges an offence which is contrary to the common law and I reject the submission to quash this count.
Emphasis added.
[10] (1968) 3 All ER 179 at 181 [G]
This decision was followed by the Court of Appeal in Regina v Andrews[11] and R v Rowell[12].
[11] (1973) 1 QB 422 at 424
[12] (1978) 1 All ER 665 at 668
In expressing their opinion that there are two substantive offences, Brennan and Toohey JJ in Rogerson relied upon those two Court of Appeal decisions and the following passage in the judgment of the Court of Appeal in Regina v Machin[13]:
The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice. There are specific common law offences such as embracery and personating a juryman. There are statutory offences, for example, the concealing of information for reward about an arrestable offence contrary to Section 5(1) of the Criminal Law Act 1967. On the other hand, as is pointed out in the Law Commission Report on offences relating to interference with the course of justice (Law Com. No.96), the common law recognises a wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course, or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs. We therefore respectfully agree that the use of the word “attempt” in the present context is misleading as was said in Reg. V. Rowell [1978] 1 W.L.R. 132, 138. The word is convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice. To do an act with the intention of perverting the course of justice is not of itself enough. The act must also have that tendency.
[13] (1908) 1 WLR 760 at 766-767

It is to be noted that in all of the English cases, they were dealing with the issue of whether there was a substantive offence of attempt to pervert the course of justice. It is to be further noted that when they referred to the conspiracy offence, they referred to conspiracy to pervert the course of justice.
All of these authorities, which held that there was a substantive offence of attempt to pervert the course of justice, used as their starting point the decision of The Queen v Vreones[14], in which it was held that an attempt to pervert the course of justice was a punishable misdemeanour. What is important, in my view, is that the underlying implication in the Judgment in Vreones is that there was a recognised substantive offence of perverting the course of justice. The issue for decision was whether there was an offence of attempt to pervert the course of justice.
[14] (1891) 1 QB 360 at 367
I have found the question of whether there are two substantive offences known to the common law a difficult one. There are some authorities which tend to suggest there are. If there are, then it would seem to follow logically that there must be two separate conspiracy offences which relate to the respective substantive common law offences. Militating against such a proposition is the absence of any authorities which charge a conspiracy to attempt to pervert the course of justice.
Mr Abbott, in his submissions, submitted that the absence in Section 270(2) of the Act of a reference to conspiracy to attempt to pervert the course of justice adds further strength to the proposition that there is no offence of conspiracy to attempt to pervert the course of justice and, as a corollary to that argument, there is no substantive offence of pervert the course of justice.
Section 270(2) provides:
270 (2) Any person convicted of any of the following common law offences, that is to say, any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert or defeat the course of public justice, shall be liable to be imprisoned for a term not exceeding seven years.
In the end, as will be seen shortly, I have not found it necessary to resolve this difficult question. I am of the view that the applications by the Defendants can be determined by a different route.
In my opinion, the question can be resolved by starting from the position that common law recognises an offence which can generally be described as a conspiracy to commit an unlawful act. That unlawful act can be a crime at either common law or under statute. These propositions were addressed by Brennan and Toohey JJ in Rogerson[15], when they said:
What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object, as Willes J., delivering the opinion of the judges in Mulcahy v the Queen, said:
“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means.”
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. When Willes J. spoke of an “unlawful act”, he was speaking of an act which has not occurred when the conspiracy is formed. He must have meant an act which, if done in circumstances contemplated by the conspirators, would be unlawful. Although acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed, those acts are not themselves elements of the offence. In that sense, it is immaterial whether an act done in pursuance of a criminal conspiracy is, in the event, unlawful, provided the act was intended to be done in circumstances which, had they eventuated, would have made the act unlawful. 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.
Reference to footnotes omitted.
[15] The Queen v Rogerson (1991-1992) 174 CLR at 280-281
In this case, Section 256(1) makes it an offence to attempt to pervert the course of justice. That is the unlawful act. It is that offence which is the object of the conspiracy alleged against the Defendants. Accordingly, in my opinion, the common law recognises the offence of conspiracy to attempt to pervert the course of justice, being the offence contained in Section 256(1) of the Act.
This was the alternative submission made by Mr Hinton QC. It can be seen that I am persuaded by that submission.
In the end, after I called the matter back on for further submissions, it was recognised by the respective Counsel for the Defendants and Counsel for the DPP that there was very little difference between their respective positions. It was accepted by both Counsel for the Defendants that whether the offence is that of conspiracy to pervert the course of justice, or conspiracy to attempt to pervert the course of justice, that the elements of the charge are the same. It was also accepted that the offence, whatever name is given to it, arises as a result of the provisions of Section 256(1) of the Act and the common law. The only difference between the two positions was that the DPP has sought to charge an offence of conspiracy to attempt to pervert the course of justice and the Defendants assert that the correct charge is conspiracy to pervert the course of justice. However, as Ms Powell QC pointed out, that whilst there is only a small difference, the difference is important because the DPP is not, in the amended Information, charging an offence which is known to the law of South Australia.
I do not accept that submission by the Defendants. In my opinion, for the reasons I have expressed, I am of the opinion that the charge contained in the Information is an offence known to the law of South Australia and, as such, is an offence triable in the Courts of South Australia.
The application of each Defendant is refused.