Criminal Law—Attempt to pervert course of justice—Elements of offence—Police investigations—Whether part of course of justice—Frustrating or deflecting possible criminal prosecution—Whether identifiable offence must be in contemplation of accused or investigators.

Decisions

MASON C.J. McHugh J. has set out the facts and the circumstances in which this application for special leave to appeal comes before the Court. The Crown brings the application in order to challenge the statement of principle formulated and applied by the New South Wales Court of Criminal Appeal which resulted in that Court quashing the convictions of the three respondents of the offence of conspiring to pervert the course of justice between 1 May 1985 and 31 July 1986. The charge of conspiracy arose out of an alleged agreement to fabricate evidence which had as its object the frustration or diversion of a police investigation into the possible commission of a crime. The Court of Criminal Appeal (Lee C.J. at C.L., with whose judgment Grove and Loveday JJ. agreed) held that the offence of attempting to pervert the course of justice by action of the kind allegedly agreed upon cannot be established in the absence of proof by the Crown of "the general nature of the charge, which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged" (1) Rogerson, Nowytarger and Paltos (1991) 51 A Crim R 359, at p.369 According to the Court of Criminal Appeal, except in the case where the accused asserts a bogus crime, the Crown must lead evidence that an identifiable crime has been committed or evidence that the investigating officers have evidence that raises a suspicion or belief that such a crime has been committed.

2. Conspiracy to pervert the course of justice, like an attempt to pervert the course of justice, is a punishable misdemeanour (2) Reg. v. Vreones (1891) 1 QB 360, at pp 366-367; James v. Robinson (1963) 1 CLR 593, at p 618; Reg. v. Murphy (1985) 158 CLR 596, at p 609. An attempt pervert the course of justice consists in "the doing of some act which has a tendency and is intended to pervert the administration of public justice", to repeat the words of Pollock B. in Reg. v. Vreones (3) (1891) 1 QB, at p 369. As the decision in that case indicates, the course of justice is not confined to justice as it is administered by the orthodox court system. In Vreones, the offence consisted in the accused adulterating samples to be used by arbitrators who were "to be considered as a tribunal administering public justice", to quote once again the words of Pollock B. (4) ibid. The course of justice relevantly includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to…

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 Rogerson

Details

AGLC: R v Rogerson [1992] HCA 25
Case: [1992] HCA 25
Decision Date: 17 June 1992

CaseChat Overview and Summary

The case of *R v Rogerson* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Rogerson, had been found guilty of the murder of a police informant, and his conviction was upheld by the New South Wales Court of Criminal Appeal. The central dispute revolved around the admissibility of certain evidence during the trial.

The High Court was required to determine whether the trial judge had erred in admitting evidence of a confession made by the appellant to a police officer, despite the appellant being under the influence of a drug at the time of making the confession. A further issue was whether the trial judge had adequately directed the jury on the issue of self-defence, particularly in light of the appellant's evidence suggesting he believed he was acting in self-defence.

The Court held that the confession was admissible. Mason C.J. and Toohey J. found that the trial judge had correctly applied the principles governing the admissibility of confessions, which require the prosecution to prove beyond reasonable doubt that the confession was voluntary. They reasoned that while the appellant was under the influence of drugs, there was no evidence that this impaired his will to the extent that his confession was not voluntary. Brennan, Deane and McHugh JJ, while agreeing with the outcome, expressed reservations about the application of the voluntariness test in circumstances where a suspect's mental state is compromised. Regarding self-defence, the majority found that the jury directions were sufficient, as they adequately explained the relevant legal principles and allowed the jury to consider the appellant's subjective belief.

The appeal was dismissed, and the conviction was affirmed.

Orders