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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McGee

Details

AGLC: R v McGee [2007] SADC 10
Case: [2007] SADC 10
Decision Date: 16 February 2007

CaseChat Overview and Summary

The case of R v McGee involves the respondents, who were charged with conspiracy to attempt to pervert the course of justice. The respondents sought to have the charges quashed on the basis that the offence they were charged with did not exist under the law of South Australia. Specifically, they argued that the appropriate charge should have been conspiracy to pervert the course of justice, rather than conspiracy to attempt to pervert the course of justice. This case required the court to determine whether there was an offence of attempt to pervert the course of justice and whether an offence of pervert the course of justice existed separately. Additionally, the court had to consider whether conspiracy to do an unlawful act could encompass a crime that was either at common law or under statute, and whether section 256(1) created an offence of attempt to pervert the course of justice.

The court found that the offence of attempt to pervert the course of justice was indeed recognised under South Australian law. The court relied on section 256(1) of the Criminal Law Consolidation Act 1935 (SA), which explicitly criminalises the attempt to pervert the course of justice. The court further explained that conspiracy to do an unlawful act could indeed include crimes that were either at common law or under statute, thereby confirming that the charge of conspiracy to attempt to pervert the course of justice was valid. The respondents' argument that the charge should have been for conspiracy to pervert the course of justice was rejected, as the court held that the attempt to commit such an offence was also a punishable act under the statute.

As a result of this decision, the court dismissed the respondents' applications to quash the charges against them. The court held that the offence of attempt to pervert the course of justice was indeed recognised and enforceable under South Australian law, and that the charge of conspiracy to attempt to pervert the course of justice was valid. The court's ruling confirmed that the respondents would face trial for the charges brought against them.

Orders