R v OM

Case [2011] NSWCCA 109

Court of Criminal Appeal

New South Wales
Case Title: Regina v OM
Medium Neutral Citation: [2011] NSWCCA 109
Hearing Date(s): 4 May 2011
Decision Date: 17 May 2011
Jurisdiction:
Before:

Whealy JA at [1]
McCallum J at [56]
Schmidt J at [57]
Decision:

Appeal is dismissed.

Catchwords:

CRIMINAL LAW - Appeal seeking to set aside interlocutory order - no order made - no jurisdiction to set aside preliminary ruling - providing false information to police - whether capable of constituting offence of acting with intent to pervert the course of justice - scope of offence - whether common law concept narrowed by Einfeld's case - whether error by primary judge could be corrected.
Legislation Cited:

Crimes Act 1900 ss 195(1)(a), 312, 319
Crimes (Appeal and Review) Act 2001 s 107(2)
Criminal Procedure Act 1986 ss 5C, 5F(2), 17
Evidence Act 1995 s 192A
Cases Cited:

Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31; 189 A Crim R 192
R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304
Director of Public Prosecutions v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46 at [54] - [59]
R v Rogerson (1992) 174 CLR 268; 60 A Crim R 429
R v Subramanian [2002] NSWCCA 372
R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [9] - [14] per Spigelman CJ, Dunford and Kirby JJ agreeing
Dao v R [2011] NSWCCA 63 per Spigelman CJ at [1] - [6], Allsop P at [74] - [76] and Simpson J at [121] - [126]
Cheiko v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]
Texts Cited:
Category: Principal judgment
Parties:

Director of Public Prosecutions (Crown)
OM (Respondent)
Representation
- Counsel:

Counsel:
L Babb SC (Crown)
D Campbell SC (Respondent)
- Solicitors:

Solicitors:
Solicitor for Public Prosecutions (Crown)
N Hanna (Respondent)
File number(s): 2009/2283160042009/228316005
Decision Under Appeal
- Court / Tribunal:
- Before: Finnane DCJ
- Date of Decision: 31 January 2011
- Citation:
- Court File Number(s) 2009/228316
Publication Restriction:

Judgment

  1. WHEALY JA: This is an appeal brought by the Director of Public Prosecutions (" the DPP ") against a decision of his Honour Judge Finnane of the District Court on 31 st January 2011. The DPP appeals pursuant to section 5C of the Criminal Appeal Act 1912 (NSW) or, in the alternative, pursuant to section 5F(2) of the Criminal Appeal Act .

Background

  1. The respondent, OM, is charged with the following three offences:

Count 1 : That on 28 th December 2008 at Wolli Creek in New South Wales, the respondent did intentionally damage property, namely a motor vehicle, the property of Easter Star Pty Ltd.

Count 2 : That between 5 th January and 1 st February 2009, the respondent caused Mohit Sundarjee to provide false and misleading information to police with intent to pervert the course of justice.

Count 3 : That between 5 th January and 5 th July 2009, the respondent caused Farah Ullah to provide false…

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AGLC
R v OM [2011] NSWCCA 109
Case
[2011] NSWCCA 109
Decision Date

CaseChat Overview and Summary

The case of R v OM involves an appeal against an interlocutory order made by the primary judge, which sought to quash two counts in the indictment. The appellant, OM, is arguing that the primary judge erred in his interpretation of the law regarding the offence of acting with intent to pervert the course of justice. The appeal was heard in the Court of Criminal Appeal. The central issue before the Court was whether the primary judge had the jurisdiction to set aside the interlocutory order and whether the appellant's actions could be considered an offence under section 319 of the Crimes Act 1900 (NSW). The Court also needed to determine if the common law concept of perverting the course of justice had been narrowed by the Court of Criminal Appeal's decision in Einfeld.

The Court began by examining the nature of the order made by the primary judge. It noted that the order was not a final determination and did not involve the admissibility or use of evidence. The Court emphasised that it was necessary to look at the substance of the order rather than its form. The Court then turned to the issue of jurisdiction, concluding that it did not have the power to set aside the interlocutory order as it did not possess the necessary element of finality. The Court further examined the appellant's argument that the primary judge misunderstood the Einfeld decision. The Court found that the appellant's interpretation of Einfeld was incorrect and that the decision did not limit the scope of the offence of perverting the course of justice in the way the appellant had suggested. The Court held that the primary judge's decision was correct, and therefore, the appeal was dismissed.

In conclusion, the Court of Criminal Appeal dismissed the appellant's appeal and affirmed the primary judge's decision. The Court found that it did not have jurisdiction to set aside the interlocutory order and that the primary judge had correctly interpreted the law regarding the offence of acting with intent to pervert the course of justice. The Court's decision clarifies the scope of the offence and confirms that the common law concept has not been narrowed by the Einfeld decision. The final orders of the Court were that the appeal be dismissed and the interlocutory order of the primary judge be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Babb highlighted the fact that the application before his Honour, as framed, and in terms of section 192A, raised no question concerning the admissibility or use of evidence, the operation of the Evidence Act or any other law in relation to the evidence proposed to be adduced. Nor did it relate to the giving of leave, permission, or a direction under section 192. On the point of jurisdiction, Mr Babb referred to decisions establishing that, when characterising an order, it is necessary to look to its substance rather than its form (namely, R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304; Director of Public Prosecutions v PM [2006] NSWCCA 297; 67 NSWLR 46 at [54] - [59]). In this regard, the appellant emphasised what was said by the primary judge in his judgment (extracted above): "essentially what I am being asked to do is to quash two counts on an indictment". In the alternative, the appellant based his appeal on section 5F(2) Criminal Appeal Act :- Senior Counsel argued that, if it were not, in effect, a quashing order, his Honour's ruling might properly be seen as a permanent stay of the proceedings on counts 2 and 3. As such, it would plainly be an interlocutory order permitting appellate intervention. The appellant then raised two related grounds of appeal, first, that his Honour erred in finding that the evidence sought to be adduced by the Crown was not capable of establishing a prima facie case of doing an act with intent to pervert the course of justice, and secondly that, as a consequence, his Honour erred in ordering, in effect, that counts 2 and 3 in the indictment be quashed. At the heart of this appeal, it will be seen, is the primary Crown allegation that his Honour misunderstood the Court of Criminal Appeal's decision in Einfeld . The appellant argued that Einfeld goes no further than holding that section 319 of the Crimes Act does not extend to conduct that is intended to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any law of the State. It did not state, as found by the primary judge, that conduct which obstructs or deflects a police investigation can never constitute a charge under section 319 unless curial proceedings are on foot. To this extent, Mr Babb argued Einfeld recognised the continued applicability of the decision of the High Court in The Queen v Rogerson [1992] HCA 25; CLR 268. Mr Babb pointed to the facts alleged in the present case, particularly the conversation between the respondent and Ms Ullah, quoted in paragraph [5] above. These were plainly capable, senior counsel argued, of establishing, on a prima facie basis, the offences alleged by the Crown. Mr Campbell SC, for the respondent, placed his main emphasis on the jurisdictional point, submitting that this Court had no power under sections 5C or 5F(2) of the Criminal Appeal Act to allow the appeal. Mr Campbell argued that neither the quashing of two counts in the indictment, nor a permanent stay of proceedings, had ever been sought by the respondent. Nor did the primary judge make rulings or orders to that effect. All that was sought, it was submitted, was, in effect, an advance advisory ruling under section 192 of the Evidence Act from the trial judge as to the weight or effect of the evidence proposed to be adduced by the Prosecutor. To this end, the primary judge's conclusion did not have the necessary element of finality. There was nothing to prevent the Crown from proceeding to trial with the three counts still in the indictment. There was nothing to prevent the Crown from attempting to persuade the primary judge to depart from his earlier conclusion (the subject of this appeal). Senior Counsel submitted that, had his Honour remained of this view, he would have directed a verdict of acquittal on counts 2 and 3 at the conclusion of the Crown case. If that had happened, Mr Campbell submitted, no avenue of appeal would have been open to the Crown in relation to the directed verdict. (Although not necessary for the decision in this case, this last submission appears to overlook the provisions of section 107(2) Crimes (Appeal and Review) Act 2001 (NSW)).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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