Reg v Rogerson

[1991] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S143 of 1990

B e t w e e n -

THE QUEEN

Applicant

and

ROGER CALEB ROGERSON

First Respondent

MORRIS ENRICO NOWYTARGER

Second Respondent

NICHOLAS JOHN PALTOS

Third Respondents

Application for special

leave to appeal

MASON CJ

Rogerson 91 6/11/91

BRENNAN J

DEANE J

TOOHEY J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 NOVEMBER 1991, AT 9.47 AM

(Continued from 5/11/91)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Hughes.

MR HUGHES:  If Your Honours please. The first submission we

would put to Your Honour, continuing on from what I
was endeavouring to put yesterday, is that in a

case where the alleged attempt or conspiracy in

relation to the course of justice consists in the

telling in part of an agreement to tell a full

story to police, it is incumbent upon the Crown on

the authorities to establish: one, that there was,

at the time of the alleged conspiracy, the

agreement, a police investigation on foot; two, to

establish that the accused were aware of facts

which might or did amount to a crime; not aware

that a crime had been committed, but aware of the

facts that would amount to a crime.

TOOHEY J: 

Mr Hughes, does that mean that when some of the

cases speak of unlawful activity and illegal
activity, they mean criminal activity?

MR HUGHES: 

Yes, Your Honour. That is the plain inference,

in our respectful submission, to be drawn from the

cases. Now there must be on foot a course of

justice consisting at the very least into a police

investigation into supposed or suspected criminal

activity. The high-water mark of the English

cases, Your Honours, is Thomas, (1979) 1 QB 327,

which is on the list of authorities. That was the

case in which the accused, knowing that the

confrere was under police investigation and that

his movements were being followed, tipped him off,

as it were, as to the registration numbers of the

unmarked police cars that were tailing the

confrere.

Now, the inference one gets from reading that

case that it was implicit in the judgments that the

accused, at least, suspected that there was some

sort of criminal activity that was being

investigated by the police, by the means of

following the suspect in cars that did not have

police identification.

Selvage, (1982) 1 QB 372, emphasizes the

essentiality of there being a course of justice by
excluding from the ambit of the crime of attempting

to pervert the course of justice, or conspiring so to attempt, an agreement between several people to

procure that endorsements of convictions on driving

licences be expunged in the road traffic office, so

that people with convictions would appear to any

police who stopped them and who examined the

licence as not having convictions, or to any

court.Now, the decision of the Court of Appeal in

that case excludes such conduct from the ambit of

conspiracy to pervert the course of justice because

Rogerson 92

it was not sufficiently related to a curial

proceeding.

In Murphy, in this Court, 158 CLR 596, at

page 609, there is	a reference to several cases at
the bottom of the	page, including Kane, a
New Zealand case.	The Court said, the last three
lines on 609:

In Reg v Kane the court held -

that is the New Zealand Court of Appeal

that a person commits the offence of

attempting to pervert the course of justice

if, when a crime has occurred and the police

are investigating it, he is guilty of conduct

aimed at preventing or obstructing a

prosecution which he contemplates may follow.

Those words suggest, in my submission, that it is

essential for the prosecution, in terms of proving intent, to establish that the alleged conspirators

knew at the time when they hatched their agreement

that there was on foot a police investigation that

would, or at least might, lead to a prosecution,

and knew the facts which might constitute the

crime.

TOOHEY J:  Mr Hughes, you may well be right in what you say

of the authorities, but it does seem curious that

there has to be some recognition that a prosecution

may follow. If persons commit an offence and then

set about covering their tracks in some way, either

by manufacturing documents which are complete shams

and throw an entirely false light on the

transaction, is there any offence committed in

those circumstances?

MR HUGHES:  We would say no, consistently with the

authorities, but we would say even if we are wrong,

we can go to the evidence in this case and show

that the Crown failed to establish by any of the

evidence led in their case that the accuseds made

this agreement during the currency of the police

investigation and with a view to obstructing it,

and made any agreement in which a police

investigation was even adverted to.	I will need to
go to the evidence for that;	I did so in part
yesterday.

McHUGH J:  Mr Hughes, suppose two bank robbers decided to

burn the get-away car to obliterate any fingerprint

or other identification evidence, does that amount

to a conspiracy to pervert the course of justice?

MR HUGHES:  No, it does not.

Rogerson 93 6/11/91

MCHUGH J:	Why is that?
MR HUGHES:	Because the course of justice has not started.

That is the answer I would give to Your Honour.

There must be a course of justice consisting in at

least a police investigation.

TOOHEY J: And yet, in that sort of case it is inevitable

there is going to be a police investigation.	You
can imagine other more subtle circumstances in

which it is possible that the tracks had been so

well covered that the police were never alerted to

the commission of an offence. But in the sort of

illustration Justice McHugh just gave you, could it

realistically be said that there must be evidence

that an investigation is likely to follow?

MR HUGHES:  Maybe one could retreat a step and say that if

it be shown in the Crown case that the accused,

when they made their agreement, charged as a

conspiracy, adverted to the likelihood of a police

investigation, that might be enough. I would

contest that on the authorities but let me retreat
to that position for the purposes of argument.

Then I would go to the evidence in this case - which I must do briefly - to show that that was

not, on the evidence, any part of the purpose of

this conspiracy.

I have referred Your Honours, yesterday, to

the evidence of Karp, at pages 122 and 139. The

two points that emerge from that are that

Nowytarger did not arrive until late; and the

evidence does not establish what part of the
conversation, if any, he heard or participated in.

I will not go over that ground, again.

McHUGH J: But this argument throws all its weight on the

proposition that the offence is committed by the

initial agreement, but why was it not open to the

jury to conclude that the parties had continued to

agree at later stages when the police investigation

was on foot?

MR HUGHES: Well, that is not the way the Crown presented

the case.

McHUGH J: No.

MR HUGHES:  That is not the way the Crown fought the case.

Now, on that it needs to be borne in mind, in my

submission, that there is no evidence as to when

Nowytarger became aware of a police investigation

until the point of time at which he was

interviewed. There is evidence that, at some

unspecified times, Superintendent Strong sought to

Rogerson 94 6/11/91

interview him but there was no specificity as to

dates. My learned friend the Solicitor will

correct me if he thinks I am wrong, but Strong's
evidence is quite non-specific.

Nowytarger was not interviewed until 7 March, and what we would say is that there is no evidence

that Nowytarger knew specifically, prior to then,

that there was a police investigation. Rogerson, I
think I am right in saying, was interviewed - the

reference to the date of the interview of

Nowytarger is at page 69 in volume I. Rogerson was

interviewed in October.

Now, if the Crown relies upon a conspiracy - and really, this is not the way the case was

conducted at trial but if the Crown relies on a

conspiracy between Rogerson and Nowytarger to give

false stories in records of interview to the

police, that is not the conspiracy charged, which

was a quardipartite conspiracy, made at the

restaurant, to fabricate a contract.

So the Crown cannot sustain this conviction on

the basis of a supposed conspiracy between my

client and Rogerson to tell lies to the police in

their records of interview.

DEANE J: The charge was a conspiracy between May 1985 and

July 1986.

MR HUGHES:  Yes, but between four persons, Your Honour.

DEANE J: But was there anything to indicate that the

conspiracy did not continue while each of them was

misleading the police?

MR HUGHES: It is a question of what conspiracy. Our point,

Your Honour, is this, and the facts are vital:

there was no conspiracy to mislead the police in a

police investigation arrived at in the restaurant

interview.

DEANE J:  I follow that, but was what your client said to

the police admitted in evidence against the other

accused, because if it were, it could only be on

the basis that there was a continuing conspiracy at

that time.

MR HUGHES:	Yes, but the continuing conspiracy as made in the restaurant. Your Honour, Rogerson's record of
interview was admitted against objection, against
my client, and I think vice versa.
TOOHEY J:	Mr Hughes, the emphasis, it is true, has been on

the restaurant conversation, but do the particulars

of overt acts which I raised yesterday suggest that

Rogerson 95 6/11/91

the conspiracy is said to derive from other

incidents as well?

MR HUGHES:  I have been given a copy of the overt acts,

which have all the charm of novelty to me because I

have not seen them before. They were not -

TOOHEY J:  But you are putting it on the basis, and it may

well be the correct basis, that the only conspiracy

alleged was that arrived at at the restaurant.	Is
that in fact the extent of the conspiracy alleged against the respondent?

MR HUGHES:	As I understand it, whether in the overt acts or, more importantly, in the way the trial was
conducted, the conspiracy alleged was the agreement
made in the restaurant, and the overt acts
consequentially relied on as evidence of that
conspiracy.  I think the learned Solicitor was
proposing to hand to Your Honours the particulars
of the overt acts. Perhaps it might be appropriate
for him to do that now so that Your Honours see them.

MASON CJ: Yes.

MR MASON:  Your Honours, what we have done is to attach

those to a submission, so if the Court is prepared

to take the whole lot I am prepared to hand it in,

and I will give copies to my friends, of course.

MASON CJ: Thank you.

MR HUGHES:  I am pausing while Your Honours read it. I hope

Your Honours do not mind me doing that. In my

submission, the fair reading of those particulars

is that the conspiracy is the conspiracy said to

have been hatched at the restaurant meeting, and

that the overt acts subsequent to that event are

relied upon as evidence of that conspiracy and of

no other, not, for instance, a bipartite bilateral

conspiracy between Rogerson and Nowytarger

subsequent to the restaurant meeting.

I have referred to the evidence of Karp about

the restaurant meeting and to a passage of

cross-examination at page 139. I should also refer

to some other evidence given by Karp at page 191,

volume I, Your Honours. This was under

cross-examination by Mr Baker who appeared for

Paltos. At line 15:

Q. As at 19 July 1985 do you your.self have

no knowledge whatsoever of any police

investigation contemplated in respect of any

accounts in respect of Mr Rogerson did you?

Rogerson 96 6/11/91

A.	Not at that stage.
Q.	Because at that stage the position is, is

it not, that the only problem that had been

discussed with you was the fact that bank

officers were investigating a bank manager and

there was a problem over money, is that right?

A.	Yes, along those lines.
Q.	That was the situation that was put to

you, according to you, when you were

approached to see if you could assist; that's

right, isn't it?

A.	Yes.
Q.	It was only much later that you learned

anything about any proposed police

investigation?

A. That's correct.

So we would ask Your Honours to take that evidence

into account, together with the evidence at

pages 122, 123 and 139.

Furthermore, and I shall refer Your Honours to

this, in his dock statement, my client at page 793,

volume III, line 25 said this, Your Honours -

perhaps I should start at line 15 to get the

context:

I returned to my office and I rang Roger.	I
asked that he meet me that evening.	I met him
at the Bayswater Brasserie that evening.	we

discussed the situation and as a result of the
discussions we thought it would be essential

that we formalise the arrangement that we had

with Karp. Karp had still not come up with

this contract so Roger did not have Karp's phone number with him and I didn't. Roger	thought that Paltos would be playing cards
nextdoor. He, Roger that is, went to get
Paltos, Mr Paltos and brought him back to the Brassierie.
Paltos rang Karp and asked him to come to the Brasserie. The result of these conversations
we informed Karp of the situation we were in
and that there, I believe there was no tax payable on moneys received on the capital gain
of a car as long as it was a hobby. Karp
agreed to draw up and formalise the deal we had going so that we could show our contract
to the Taxation Department if necessary, if
asked.

Rogerson 97 6/11/91

Now, of course, that was only a statement but, in

our submission, it has to be put alongside the

evidence and it had to be evaluated by the jury in

the context of Karp's evidence. The hypothesis, we

say, left open, and not excluded by that material,

was the agreement to falsify the documents, was

designed to deal with questions that might be asked

in a taxation investigation rather than deflecting

or heading off or diverting a police investigation.

There is no evidence so far as Nowytarger is concerned that he knew at the time of the

restaurant meeting, or at any specific time

thereafter until he was interviewed on 7 March,

that there was a police investigation on foot.

DEANE J:  Mr Hughes, can I divert you from your argument for

one moment, because I am having a little bit of

difficulty in fitting what is involved here into

its proper context. Perhaps wrongly, I had read
the judgment of the Court of Criminal Appeal as

saying in effect this, "There are a lot of problems

in this case. We don't have to resolve them

because conspiracy to pervert the course of justice

can't be made out unless you identify a specific

course of criminal activity, and here no specific course of criminal activity was identified. That

being so, the case failed and we don't have to

worry about all these other matters."

MR HUGHES:  Yes.

DEANE J: It seems to me that the respondents are not

attacking the Court of Criminal Appeal's decision

on that basis, but are attacking the decision on a

number of other grounds which, if the Court of

Criminal Appeal is wrong and if the case were held to be one in which leave should be granted, would

go back to the Court of Criminal Appeal to be

resolved. I can follow for my part the force of

your approach if we are still talking about whether

leave should be granted, but I have trouble in

fitting it into the case if one approaches it as,

"The question of leave has been put to one side for

the moment."

MR HUGHES:	Your Honour, let me say at once that I see the reason for Your Honour's difficulty. What I am
really trying to say by way of advancing reasons is
that if the Court of Criminal Appeal went too far
in circumscribing the limits of the offence of
conspiring to pervert the course of justice, nevertheless the appeal should not be allowed and
the conviction restored because the result arrived
at by the Court of Criminal Appeal was right,
albeit for reasons that were partly wrong. I hope
that helps to ameliorate the difficulty.

Rogerson 98 6/11/91

DEANE J: It does except, in one sense, for us to resolve

that would mean that we would have to deal with all

the things, including Miss Jones's - - -

MR HUGHES:  I do not want to wish upon this Court, by

anything I say, such a course because I appreciate

that if the Court takes the view that the Court of Criminal Appeal went too far in circumscribing the limits of the offence it is not for this Court - it

is not part of the proper task of this Court to go

into the whole matter as if it were sitting as a

Court of Criminal Appeal. Therefore, it has to be

said that I am guilty of straying back into the

special leave area.

DEANE J:	I was not criticizing you for any straying.
MR HUGHES:	It is difficult to erect a Chinese wall between

the two parts of the case. Chinese walls, in one's

commercial experience, are seldom very successful

and probably not in the forensic area. But I

freely avow that that is a difficulty with the

argument, although we would say not a fatal

difficulty.

DEANE J:  You have answered my question, thank you.

BRENNAN J:  Mr Hughes, could I, before you go back to your argument, ask two further questions. One takes you

back a little in your argument and it is this: if

a conspiracy should be entered into between A and

B, who are about to engage in a course of criminal

conduct, let it be assumed between members, say, of

a maffia club, and the agreement is that "We shall,

whenever the police investigation takes place into

our intended criminal activities, mislead them.",

is that agreement an agreement to pervert the

course of justice?

MR HUGHES:	No, Your Honour, on the authorities it is not Appeal. There are passages in Selvage which would and I particularly rely on Selvage in the Court of	support a negative answer to that question. Can I
just give Your Honours those references? That is
(1982) 1 QB 372. Your Honours, I will not read the
passages; they are at page 379, towards the bottom
of the page; page 381, at the top of the page;
and the same page, 381, at the bottom of the page.

BRENNAN J: Now may I ask my second question, which is: if

a conspiracy or an agreement be innocent of its

criminal purpose at the time of its formation, that

is that there is then no intention to pervert the

course of justice, but the implementation of the
agreement in the course of time will, as the

parties then know, pervert the course of justice,

does the persistence by the parties in performing

Rogerson 99 6/11/91

the conspiracy then amount to a conspiracy to

pervert the course of justice?

MR HUGHES:  It may, but it would not be the initial

conspiracy, it would be a new conspiracy.

BRENNAN J:	Why is that?
MR HUGHES:	Because the conspiracy, to use the terminology

of this case, that was formed in the restaurant was

a conspiracy on our case for a limited purpose, but

certainly a purpose unrelated to a police

investigation. If it was anything it was a

conspiracy to defraud the Taxation Commissioner and

would be a conspiracy under Commonwealth law,
section 86 of the Commonwealth Crimes Act. That is

a conspiracy that is different in content from a

conspiracy to pervert the course of justice. If,	as a result of further acts the conspiracy became a
conspiracy to pervert the course of justice, then
that is not the original conspiracy, it is a new
conspiracy. If it was a conspiracy between different parties then it is not the conspiracy on
which the Crown went to the jury.

BRENNAN J:  Why does one not regard the original conspiracy

or agreement as the actus reas and the subsequently

formed intent as the mens rea?

MR HUGHES:  Because the actus reas in conspiracy includes as

one of its essential elements, and I rely on

Freeman's case for this, "on the proof of intent in a sense that the conduct contemplated by the

agreement was conduct contemplated in the knowledge

of the facts that would make that conduct illegal".

That is citing from page 308 of Freeman's case.

BRENNAN J:	It does not seem to me to be taking it perhaps as far as you need to go, but that is because the
question I put to you is a novel one, it seems to
me, and that is that - - -
MR HUGHES:	I appreciate it is novel, but I do not have the

cases at my immediate command in terms of

recollection, Your Honour, but there are cases, at

least one case I know in this Court, where an

appeal in a conspiracy case was ultimately upheld

because the conspiracy on analysis of which the

accused were convicted was a conspiracy not -

Gerakiteys.

Your Honour, the problem may be novel, but in

terms of principle I would submit that my answer

might stand scrutiny. I hope so.

BRENNAN J: Thank you.

Rogerson 100 6/11/91

MR HUGHES:  Now, I just want to try to collect my thoughts

before I sit down to see if there is anything I

have not covered and I think what I have not

covered is this: it was argued below in the

Court of Criminal Appeal that the Crown, on the

whole of the evidence, had not excluded the

hypothesis that the conspiracy, if any, was a

conspiracy other than a conspiracy to pervert the
course of justice. That topic, we say, was
relevant because of the considerations to which I
have adverted as to the possible object of any

conspiracy, namely a conspiracy to hoodwink the tax

department, which would bring in Commonwealth law,

section 86(l)(c) of the Crimes Act, and it is quite

clear that even though, as the learned

Solicitor-General submitted yesterday, State police

have power to arrest for offences against laws of

the Commonwealth or suspected offences against laws of the Commonwealth, that proposition is beside the

real point given that this conspiracy, as charged,

whatever else was unclear about the Crown case, was

a conspiracy to pervert the course of justice and

not a conspiracy to offend against Commonwealth

law. It was incumbent upon the Crown to exclude

the hypothesis that the object of the alleged

conspiracy was other than to pervert the course of

justice. That is the last point mentioned in the,

as it were, contingent part of our outline - I do

not want to take Your Honours to it - but it really

falls within the division of the case that would

fall to the lot of the Court of Criminal Appeal to

decide, if Your Honours take the view that the

Court of Criminal Appeal went too far in its

limitation of the ambit of the defence.

May I finally - one always says "finally" and

then finds oneself saying something more, but I
think it is finally - make this submission to

Your Honours: that the reason why, if the Court of Criminal Appeal did go too far in

stressing the need for the Crown to establish an

identifiable offence is that they may have had in

mind this dichotomy between Commonwealth and State

law.

BRENNAN J: What is the significance of the dichotomy

between Commonwealth and State law?

MR HUGHES: Well, a conspiracy to defraud the Commonwealth

was never charged, and it is a different conspiracy

from a conspiracy to pervert justice.

BRENNAN J: It is not suggested that the conspiracy to defeat justice in the course of administering

Commonwealth law is any the less a conspiracy to

defeat justice?

Rogerson 101 6/11/91

MR HUGHES:	No, but I suppose the point starts with the analysis that I have endeavoured to make of the
evidence.  I am only trying to explain, if
explanation be needed, the emphasis that the court
below placed on the need to identify an offence.

TOOHEY J: Are you suggesting, Mr Hughes, that the

apprehension must be, in this particular case, of

an investigation into an offence against State law?

MR HUGHES:	Yes, I am, but what I am really saying is that there is no evidence that these accused apprehended
any investigation at all.

TOOHEY J: No, I understand that argument, but if there was

some apprehension of an investigation, generally,

without anyone adverting to the specific nature of

the investigation, are you suggesting that if the

apprehension went perhaps to some offence against

the Commonwealth, against the law of the

Commonwealth, that that could not constitute a

conspiracy in this present case?

MR HUGHES:  Yes, in the particular circumstances of this

case.

TOOHEY J:  By that, do you mean the way in which the case

was presented?

MR HUGHES:  The way in which the case was presented and the

way in which the evidence unfolded, Your Honour. way the Crown conducted it, Your Honours. They

said they did not have to prove the source of the

money and that the mere fact that lies were told

about its origin could only establish beyond

reasonable doubt that the source was illegal. They

sought to lard that case up by introducing the

evidence of Miss Jones. And that was at the root

of all the troubles. But again, I am straying back

into special leave, so I am exceeding my proper
function.	I will not go over that ground again.

Those are the submissions we would make to the

Court.

MASON CJ: Thank you, Mr Hughes. Yes, Mr Richter.

MR RICHTER:  If Your Honours please, whilst broadly in

agreement with the submissions made by our learned

friend, Mr Hughes, we would seek to take up some of

the issues that have been debated by him, where we

say that we would put it somewhat differently.

The issue of State jurisdiction as against

Commonwealth jurisdiction is critical, not so much

in the way the case was conducted but from the

existence of the case commencing as it does at

Rogerson 102 6/11/91

trial level with the indictment. It is a State

indictment alleging a purposive agreement to

pervert the course of justice in right of the State

of New South Wales, not justice globally.

BRENNAN J: Where does that come from?

MR RICHTER:  It comes from the fact that it is a State

charge. If it was otherwise it would be laid under

the Commonwealth Crimes Act as a conspiracy to

pervert the course of justice as it was in

Murphy's case.

McHUGH J: But it is a common law offence?

MR RICHTER:	It may be the common law offence but if it is a Commonwealth matter, if it is an attempt to pervert
the course of justice in right of the judicial
power of the Commonwealth, then it is an offence which would be laid under the Commonwealth Crimes
Act.

McHUGH J: Would it be a common law offence in New South

Wales for two persons to agree in New South Wales

to do some act which was an offence against the law

of Queensland?

MR RICHTER:  In a different context though, it may be in the

sense of an overt act having taken place, yes, that

goes to different issues. Doot v The DPP and those

types of considerations in relation to which court

has jurisdiction but, in our respectful submission,

if, for example, the agreement was to pervert a

course of justice in a Commonwealth court then the

Commonwealth Crimes Act would have primacy in that

context, because the object is to pervert the

course of justice of the Commonwealth.

TOOHEY J: But that is a very refined submission, is it not?

MR RICHTER:	It is, but it goes in this way - - -
TOOHEY J: But it seems to suggest that the persons who are

charged must be shown to have directed their

attention, not only to the conduct which might give

rise to a police investigation, but whether the

charge, if a charge is laid, will be laid under a

Commonwealth Act or a State Act.

MR RICHTER:  No, they do not need to turn their minds to

that, they just need to turn their minds to facts

which might go to a course of justice, hence the

importance of identifying the course of justice.

If the course of justice which is said to be

perverted, for example, is to mislead the tax man

and to defraud the Commonwealth, the accused do not

need to have adverted to the question of

Rogerson 103 6/11/91

jurisdiction and to say to themselves, "We are

going to corrupt the Commonwealth course of

justice", that is simply a matter which

characterizes the jurisdiction, or rather the

course of justice, from a legal point of view which

it is intended to pervert.

BRENNAN J: If I understand your argument correctly, they

need at least to understand the operation of

section 109 of the Constitution - - -

MR RICHTER:	They would not?
BRENNAN J:	- - - because on your argument, it needs to be

such that they would not be charged under the

Commonwealth Act which is intended to cover the

Commonwealth field.

MR RICHTER:  They would not, with respect. If the course of

conduct and the facts are identified as an

agreement to defraud the Commonwealth, if, for

example, the facts indicate an agreement to defraud

the Commissioner of Taxation, the participants in

the agreement do not need to identify jurisdiction,

do not need to have advertence to section 109, do

not need to have advertence to any of the legal

matters, but an analysis of the course of justice

which is sought to be perverted will say that this

is an agreement to pervert the course of justice in

right of the Commonwealth, of the Commonwealth's

judicial power. It would be appropriate to lay a

charge under the Commonwealth Crimes Act and not

some State provision. That would be the

appropriate thing, as it was in Murphy.

BRENNAN J: What do you mean by appropriate; that it is not

competent to prosecute under the State provision?

MR RICHTER: It would not be - - -

BRENNAN J: And if not, why not?
MR RICHTER:	Presumably because of section 109 which covers

the field in terms of conspiracies to defraud the

Commonwealth.

McHUGH J:  I am just having some difficulty following this.

Section 39 of the Judiciary Act invests State courts with federal jurisdiction.

MR RICHTER:  Yes, Your Honour.

McHUGH J: So why is there not an interference with the

with a Commonwealth prosecution? The State courts	State justice if you do something which interferes
are invested - - -

Rogerson 104 6/11/91

MR RICHTER:  It may raise the question that what the

unlawful act was was some attempt to defraud the

Commonwealth and that the agreement is to pervert

the course of justice in relation to the defrauding

of the Commonwealth. Arguments may arise as to

whether the only appropriate charge which invokes

the court's jurisdiction is of a conspiracy to

pervert the course of justice under the Crimes Act.

If that be so, the court's jurisdiction is invoked

by the laying of an indictment charging the offence

of conspiracy to pervert under the Commonwealth

Crimes Act and is invoking federal jurisdiction,

whereas in this case what is being invoked is State

jurisdiction.

I do not really want to labour the point other than to say that it highlights the need to identify

the course of justice, and it is that which is at

the heart of a conspiracy to pervert the course of

justice. It is just one of the sort of arguments

that arise which points to the need to say, "What

is the course of justice which is being perverted", and that is the problem which troubled the Court of

Criminal Appeal.

The fact is that the judgment of the Court of

Criminal Appeal, in our respectful submission, has

to be looked at in its context and on the facts.

If the Court of Criminal Appeal is laying it down

as a principle of law, that one needs to prove the

unlawful act in order to be able to succeed on a

conspiracy to pervert the course of justice which

is founded on an agreement to cover up that

unlawful act, if the Court of Criminal Appeal is

specifying that as an element in its own right,

then we would say it went too far.

But our submission is that that is not what

the Court of Criminal Appeal is doing. The Court

of Criminal Appeal is highlighting the need to

identify a course of justice for the very reason

one and has to advert to that course of justice.	that the agreement alleged has to be a purposive
The present case was a - - -

McHUGH J: But the question is: what is the course of

justice? I notice the current edition of Archbold

says perverting the course of justice is simply

contempt of court under another name.

MR RICHTER: Well, in our respectful submission, that is an

excessive generalization. That is an excessive

generalization because one can have an agreement to

pervert the course of justice prior to the laying

of any charges, for example.

Rogerson 105 6/11/91

McHUGH J: Yes, but one can have contempt of court without

the laying of any charges, because as Lord Diplock

pointed out in the Leveller case there can be

interference with a justice in relation to a

particular case, or interference with the general

administration of a course of justice.

MR RICHTER:  But there has to be some general administration

on foot which is the object of the purpose.

McHUGH J: Not necessarily on foot; a trial is over.

Everybody has gone home, and some employer sacks a

juror because he was absent from work, in contempt

of court.

MR RICHTER: It is nevertheless, with respect, a specific

instance where one can say, "This is the course of

justice that is being attacked. It is

identifiable."

McHUGH J: That is not the rationale of it. The rationale

is doing that sort of thing deters jurors from

doing their duty, so it affects the administration

of justice in a general way.

MR RICHTER: Well, the whole rationale for a conspiracy to

pervert the course of justice being a crime is that
it affects the judicial system, or may affect the

judicial system in a bad way, and therefore we have

to have that crime. But the offence cannot simply

be one of somehow affecting the administration of

justice globally unless one is able to pinpoint

what it is about the administration of justice that

it is agreed to pervert. So that is why the

particularity is required, and when I say

particularity I do not mean the nomination of a

specific charge, such as trafficking in drugs or

murder as against manslaughter, but rather the

general identification of the course of justice

which it is said it is sought to pervert.

Our submission is really this: that what the

Court of Criminal Appeal was doing was underlining

and underscoring the essential need to identify

what course of justice is it that the accused are alleged to have agreed to pervert. The reason it

expresses itself in terms of the need to prove some

unlawful source for the money is because this is a

circumstantial case. In the absence of admissions,

in the absence of evidence which says, "Mr Paltos

said that his intent was to divert a police

investigation so that ultimate curial proceedings

might be perverted" - in the absence of admissions,

the only thing that the Crown could rely on was
circumstance. In this particular case it had to
establish the circumstance of the unlawfulness of

the source of money, not as an element, but because

Rogerson 106 6/11/91

from that establishment and from an establishment

of the fact that the accused knew, a jury might

then draw the inference that their common intent

was to pervert those potential or possible curial

proceedings.

McHUGH J:  I do not follow what the importance of this

unlawfulness has got to do with it. Supposing an

investigation had been started and they were going

to be charged, even though they were totally

innocent and they had fabricated these documents,

it would still amount to a conspiracy to pervert

the course of justice, would it not, if they were

conspiring to give false evidence?

MR RICHTER:  Indeed, if it could be shown that they did so

for the purpose of possibly affecting the potential

proceedings that would follow.

McHUGH J: Is not the real issue here to identify the

beginning of the course of justice?

MR RICHTER:  If one says, as we do, in our submissions, that

one must identify the course of justice, it in some

sense imports the need to say, "Where does it begin

and where might it end?", but only·to that extent.

McHUGH J:  I mean, having regard to some of the evidence in

this case, relating to the merits, it does not seem

to me you are on very strong ground unless you can
take yourself outside the course of justice~ Once

you get inside the course of justice it seems to me

you are in real difficulty.

MR RICHTER:  We take ourselves outside the course of

justice, with respect, because, for example, the

question that His Honour Mr Justice Brennan asked
of Mr Hughes relating to whether an agreement to

mislead the police whenever an investigation takes

place might amount to a conspiracy to pervert the

course of justice.	Mr Hughes's answer was no, on a
particular basis; our answer to it is no, but on a

somewhat different basis; on the basis that the

investigation, qua investigation is not the course

of justice. It may become part of a course of

justice and it may be in the minds of the

conspirators necessarily a part of a course of

justice if what they have in mind is the perversion

of potential future proceedings. The investigation
is part of the course of justice but is not the

course of justice per se. And that, in our

respectful submission, is a critical distinction

that has to be made.

McHUGH J: But I have never heard of anybody being charged,

for example, with perverting the course of justice

Rogerson 107 6/11/91

because immediately after a crime they have burnt

the evidence or destroyed the evidence.

MR RICHTER: That is right, because they cannot have in mind

the notion of perverting a future hearing, because

what they have in mind is that there will not be a

future hearing at all and that is why it is not the

perversion of a course of justice and that is why

the interference with the investigation does not

amount to attempting to pervert the course of

justice, because there is no proximity, there is no

intent which affects what the course of justice

has to be seen as the adjudicatory phase. The	actually is. The course of justice, in one sense,
investigation is tacked on to it as part of the
course of justice, because it necessarily leads
into it.

TOOHEY J: So you get a reward for success, do you?

MR RICHTER:  No, you may - - -

TOOHEY J: The more successful the cover up, the greater the

prospect of having a defence to a charge of

conspiring to pervert the course of justice.

MR RICHTER:  No, with respect. It is not a matter of

success; it is a matter of analysing what the

intent required is.

BRENNAN J: Well the more successful the intent?

MR RICHTER: Well, with respect, the legislature can take

care of that, but in terms of the definition of

what it is that one has to intend, in attempting to

pervert the course of justice, the intent obviously

cannot simply be to pervert an investigation -

andSelvage's case, of course, in our respectful

submission, highlights that. It is because of the

formulation of the case. Now our learned friend,

the Solicitor, says that if somehow this

application does not succeed, a whole lot of

corrupt police officers may not be dealt with. friend was talking about the burking of charges -

and I had not understood that word either, until it

was explained - there are obvious charges to lay.

Police officers cannot accept bribes; there are

specific and substantive offences for the taking of

bribes or for conspiracies to take bribes. There are other offences such as hindering police. The

conduct that Your Honour Mr Justice Toohey adverted

to is taken care of by a charge such as "hindering

police in the execution of their duty" and there

may indeed be a conspiracy to hinder police in the

execution of their duty.

Rogerson 108 6/11/91

Now I am not quite certain what the equivalent provision to that crime is in New South Wales.	In
Victoria there is an offence of hindering the
police in the execution of their duty.	I am quite

certain, and the nods indicate that my certainty is

in fact right, that there are such provisions in

New South Wales. So that where the destruction of

evidence takes place, in the way that Your Honour

Mr Justice Toohey has raised, it does not mean that

the offender gets away with it; he can be charged

with hindering police or with some other offence,
but what he is not doing, unless he adverts to the
course of justice, he is not attempting to pervert

the course of justice because his intent is not

there.

McHUGH J: They are two different things, are they not?

There is the actus reas, which is the objective

interference, and the intent. You seem to be

concentrating on the intent but I would have

thought there was an anterior question as to when
the course of justice starts. That was the

position in Selvage, was it not? The court held

that the course of justice had not commenced.

MR RICHTER:  Yes, Your Honour. The beginning of the course

of justice is a fairly elastic sort of process. It

does not even have to commence with a police

investigation. It may in fact commence earlier.

It may in fact commence with all the things that

are necessary and necessarily lead up to or are

involved in the process that may ultimately result

in curial proceedings. The term "investigation" is

itself an elastic term. It may expand, it may

contract, it may include a whole lot of things that

one would not normally consider as investigatory.

And so, yes, there is a need to identify when it

commences, but that exercise can only be performed

when one looks at what the course of justice is in

terms of the potential ultimate proceedings.

That is why yesterday we raised the

submission: if one takes a hypothetical

investigation where a police officer says to

himself, "I'm not charging anyone, I'm just

conducting an investigation into whether or not a

crime was committed, whether A committed the crime,

but no charges will flow, whatever my findings

are". If he does that, there is no course of

justice. There may be a situation where a person

who is the subject of that investigation who, once

that investigation was set in force, if that person

destroys evidence, he not knowing that the
policeman has limited himself in the way that he
has, if he destroys evidence with the object of

perverting an ultimate hearing, for example, he may

well, subject to arguments about impossibility, be

Rogerson 109 6/11/91

guilty of attempting to pervert the course of

justice although, formally speaking, there is no

course of justice. That is why it raises the

question of impossibility. But we would say in

that sort of case there would be no course of

justice.

Now, with respect, the intent is all important

in one sense, coming back to what Your Honour

Justice McHugh has said. The intent is all

important, because it is the intent that tells us

whether or not what the parties agree to goes to a

course of justice or does not. If all that - - -

McHUGH J: That is so in conspiracy cases, but what about

cases of attempt to pervert the course of justice

or simply perverting the course of justice?

MR RICHTER:  The same thing applies, with respect, the same

thing applies, if the intent has nothing to do with
ultimate adjudicatory processes and we include, of
course, in the course of justice things like
coronial inquiries, royal conunissions, boards of

inquiry as well as court proceedings. If the

intent has nothing to do with affecting those, then

the questions with attempt to pervert the course of

justice are different ones. They relate to ·

whether, in attempting to pervert the course of

justice, an intent to do so is in fact required,

and advertence there is required. But that is not
a question that arises in relation to conspiracy

because the conspiracy is, by definition, purposive

and its purpose is to affect those curial

proceedings.

And those are, in our respectful submission,

vital distinctions and they arise in this case,

also, in this way because coming from a question
that was raised yesterday about Mr Rogerson being a
police officer, and Mr Rogerson knowing that he

would have to answer questions to an

investigation - an internal investigation - would

not be able to claim privilege against

self-incrimination, the end result of the analysis

of that question that was posed yesterday is that

Mr Rogerson, in his own right, may well be guilty

of attempting to pervert the course of justice.

But unless there is evidence that that is the

collective purpose, the conunon agreed purpose, the

others are not. So to say that there is no

conspiracy to pervert the course of justice there

does not mean that Mr Rogerson is not, in his own

right, or may not in his own right, be guilty of an

attempt to pervert the course of justice, vis-a-vis

the Police Disciplinary Board.

Rogerson 110 6/11/91

We would seek, also, to address the issue that

has arisen now in relation to the subsequent

emergence of the conspiracy and so far as Paltos is

concerned, in our respectful submission, those
considerations cannot apply to him because there is
nothing to indicate the subsequent reformulation of
the conspiracy as far as he was concerned.

As far as the notion of reformulating the conspiracy to misrepresent at a time when an

investigation came into existence for a certain

purpose is concerned, the fact that Mr Nowytarger

and Mr Rogerson make answers to the police mean

that they know that there is an investigation, of

course, and this is in March. They know that there

is an investigation and they make certain answers

to the police. Had Mr Paltos done the same, the

argument may well have arisen, "Well, there must

have been a reformulation of the original agreement

at some stage or, indeed, the original agreement

may well have encompassed the notion that the

police will be lied to". But Paltos does not, he

does not give to the police the account relating to

the Bentley. If one looks at page 70, line 9, when

Mr Strong sees Paltos on 26 March, he says this to

him:

I said to the accused Paltos, "I am

Det Inspector Strong, this is Det Sgt Moeller.

We are investigating some bank accounts

operated by Det Sgt Rogerson."	He said, "What
has that got to do with me?	I said, "Will you
listen to this tape recording?"	We then

played a tape recording to the accused

Mr Paltos and after that had been played to him I said to him, "We are going to ask you

some questions which you are not obliged to

answer -

et cetera. There is the caution.

He said. "Yes, I don't recall the

conversation." referring to the tape

recording. I said, "I will supply you with a

transcript of the tape". He was then handed a transcript of the tape and he appeared to read

it. He said, "I don't recall the

conversation. It's got nothing to do with me"

or words to that effect. I said, "Do you wish to make a written statement in connection with

this and any statement you do make may later

be used in evidence." He said, "No".

So as far as Paltos is concerned, the notion

that there is a furtherance of some agreement by

actions taken by him subsequently which refer back

to some required earlier formulation that the

Rogerson 111 6/11/91

police investigation is in fact to be side-tracked
because of potential proceedings, does not apply to

him and he stands on his own in that way.

As far as the tape is concerned, there was

some discussion of the tape yesterday in which, in
our submission, the tape is quite equivocal and

would not have been sufficient to found an argument

that Mr Paltos knew that the money was drug money,

because the highest that can be said about the tape

is that he is suggesting that whoever it is that

has been tipped off may think that it is drug

money.

But the answer to it lies at page 191 of the cross-examination of Karp to which our learned

friend, Mr Hughes, adverted. The questions at

line 14 to 26 put paid to the notion of the tape

being in any way probative of that which the Crown ultimately had to prove, because 19 July, which is

referred to at line 14 of course, is the date of

the tape. That is the day on which the secret tape

recording was made. As far as Karp is concerned:

As at 19 July 1985 do you yourself have no knowledge whatsoever of any police

investigation contemplated in respect of any

accounts in respect of Mr Rogerson did you?

A Not at that stage.

Q. Because at that stage the position is, is

it not, that the only problem that had been

discussed with you was the fact that bank

officers were investigating a bank manager and

there was a problem over money.

That passage of course confirms the construction that we sought to put on the tape, in our

respectful submission, and it comes on that day -

that is 19 July, the day of the tape. To that

extent, the evidence of Paltos' involvement really

ends on that day, on the 19th.

The reason we raise that is that our learned friend, who has supplied details with the list of

overt acts plus the additional written

submissions - we have now had an opportunity of

looking at that. Your Honours will notice that the

taped conversation of course on 19 July is not

pleaded as an overt act at all, because it is not.

If anything, it is no more than an admission

against interest by Paltos. It is not pleaded as

an overt act. In terms of overt acts, Paltos cuts out after the original introduction. That was his function.

Rogerson 112 6/11/91

Rather than take the Court later to our

learned friend, Mr Mason's new written submission,

we would seek to correct some of the things that he

has got in there, which are no doubt oversights.

On page 2, paragraph (e), in the case against

Paltos, it says:

Paltos' evidence of the start of the meeting

in the restaurant when he said:  "Roger has a

problem with some money" and Rogerson said:

"I need to explain how the monies arrived in

the account" .

Of course, "Paltos' evidence" should read "Karp's

evidence" - Karp's evidence when Paltos said. But

it takes it out of context, because it omits a

portion of the evidence at page 122 which is pretty

crucial. It says:

"Roger has got a problem with some
money ..... Rogerson said ••... "! need to explain
how the monies arrived in the account."

What it omits is the fact that when Paltos contacts Karp, he in fact says, and this is at page

122 on line 12:

Q. What did he say -

this is Paltos to Karp.

A. "Can I see you, it's urgent. It is nothing

to do with any trouble, it is important.

So the material there is not quite in that way that

Roger has a problem with some money. He has a

problem with some money, but put into context it is

a problem which is not really trouble, and fits in

with the notion that Karp gives at 191 that it is a

bank officer who is under investigation and has to

give an account.

These matters so far as Paltos is concerned

are of crucial importance. In his unsworn

statement which is at page 660 he, of course, says

that as far as he was concerned he thought it was a

tax problem and there is nothing in the material to

indicate that he is conspiring to pervert any

course of justice, let alone the course of justice

in right of the State of New South Wales or New

South Wales course of justice; it is just not

there.

The basic proposition is, therefore, that

first of all, the course of justice has to be

identified in any case where a conspiracy to

pervert it is alleged. The second basic

Rogerson 113 6/11/91

proposition is that an investigation, per se, is not the course of justice but may become part of the course of justice. So far as Paltos is

concerned, there was never any evidence that could

raise a case against him of an apprehension of

had in mind to pervert by the introduction of Karp	future adjudicatory or court proceedings which he
to Rogerson.
The crucial question so far as the Court of Criminal Appeal's judgment is concerned is whether
a fair analysis of that judgment in the context of
the case to which it related indicates error and,
in our respectful submission, it does no such
thing. Certain passages which were pointed out
have to be set in the context of what it was that
the Court of Criminal Appeal was considering there,
and we indicated, in our submission, that it is a
circumstantial case and in order to get a circumstantial case in those circumstances off the
ground it is essential, where there is no direct
evidence of what the accused knew, to demonstrate
that there was some unlawfulness that might be the
subject of curial proceedings and that by inference
from other circumstances the respondent Paltos must
have intended to affect those proceedings.

It is only in this way that the existence of

an identified course of justice by way of saying

the Crown has to be able to point to an unlawful

act and demonstrate it, that it becomes important,

because the subsequent passages in the Court of

Criminal Appeal's judgment, subsequent to the ones

that were impugned as disclosing that sort of error

in fact put it in context and put it in context

quite well; and those passages in particular, at

page 1208 to 1210 are important because they

highlight exactly what it is that the Crown has

decreed and indicate quite clearly that the proof

of an unlawful act is not a separate and required

element at all, but that it was only an element

that is needed - or rather, not an element, it was

a matter of proof that was required in this case because of the circumstantial nature of the case

because if that could not be demonstrated then

there was nothing from which a jury could draw the

inference that there was an intent to pervert the

course of justice.

The passage in the judgment - and we would

rely on the whole of the passage from page 1208 to

1210 - concludes at 1210 with this proposition:

In short, he will contemplate the actuality of

proceedings arising directly from evidence

obtained by the police in their inquiry

establishing that an offence has been

Rogerson 114 6/11/91

committed. The charge of attempting to

pervert the course of justice will not lie
before proceedings are brought unless there

are identifiable proceedings capable of being

pointed to and related, even though

hypothetically, to evidence that some offence

against the law has been or may have been

committed.

That identification is clearly raised in the context of it having to be identified so that an accused's intent can attach to it because if it is

not identified one is not able to say what an

accused's intent attaches to, if it is in no way

identified. And we appreciate the concept of the

general administration of criminal justice that

Your Honour Mr Justice McHugh raised. But in the

context of a trial that broad concept of the general administration of justice is more an

academic formulation for the teaching of what it is

that the administration of justice is because in

the concrete case it has to be identified.

In the concrete case, one cannot simply say,

"You're a corrupt person.", one has to

particularize it in some way. One has to say why

you are corrupt. What is it that you are doing

which is corrupt? And that is why the global

concept of the administration of justice is not

sufficient where one lays a conspiracy.

The other passages in the judgment which are of importance to that proposition are at page 1211,

in particular the first paragraph on that page

referring to Selvage:

Those words do not express the matter as

definitively as I have just done, but they are

intended, in my view, to be understood as
stressing that, in a charge of attempting to

pervert the course of justice involving a

police investigation, it is not sufficient

merely to say of the appellants that, by

telling lies to the police, they indicate that

they have done something unlawful which could,

if it were known, result in proceedings

brought against them; there must, when

attempting to pervert the course of justice is

charged, be positive evidence put forward to

point to the kind of proceedings, in the sense 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 with attempting to pervert the

course of justice.

Rogerson 115 6/11/91

The reason that is important is because the case

here was mounted on the notion of a falsehood.

And, of course, the falsehood does not prove the

course of justice. The falsehoods told by

Nowytarger and Rogerson to the police do not prove

the course of justice and do not show what the

course of justice is.

So it is in that context that the earlier

comments by the Court of Criminal Appeal have to be assimilated. The court is not laying it down as an

element that the Crown must prove aliunde the
unlawfulness of the activity, which is sought to be

covered up. What the Court of Criminal Appeal is

saying in the pages to which I have referred and,

indeed, at page 1214 and pages 1221 to 1223, is in

this case, unless the Crown can show it, there is

nothing from which the jury could infer the

existence of a course of justice, or identify the

course of justice. Your Honours, that is really,

in our respectful submission, as far as we need to

go in seeking to uphold the judgment of the Court

of Criminal Appeal.

There is one final submission that we would

seek to make, and it goes both to the merits of the

appeal as to the mixed question of whether or not

special leave in fact ought to be granted because,

in our respectful submission, from the narrow

inspection of what we have had of the Crown case

and the way they have put it, especially the

Miss Jones' problem, it is almost certain, we would

say it is certain on the materials before this

Court, that there would have to have been an

overturning of the conviction in the Court of
Criminal Appeal if the matter was remitted. That

would have to have been the case; the trial

miscarried, for one reason or another, and indeed

we would say for a dozen reasons. The trial

miscarried. And this Court is in a position to see

that the trial did miscarry, so that what is going

be a matter of restoring a conviction, but in	to happen is, if this Court remits it, it will not
effect saying there has to be a new trial. And if
that be the case, then that is very relevant to the
issue of whether or not this Court grants special
leave.

BRENNAN J: That raises a particular problem, does it not,

because if the special leave were granted and the

appeal allowed on the narrow basis of the

correctness of the Court of Appeal's decision, the order made by the Court of Appeal would ordinarily

be set aside.

MR RICHTER:  And thereby the conviction would be reimposed.

Rogerson 116 6/11/91

BRENNAN J: Yes, and what happens with respect to custody?

MR RICHTER: This Court would have to issue a warrant for

the arrest of whoever is at liberty. Mr Paltos is serving another sentence so that would not be much of a problem, but I understand that the other two
respondents are at liberty. One would have thought
that as a consequence of the overturning of the

Court of Criminal Appeal, this Court would have to

issue a warrant committing them to custody.

BRENNAN J:  Why would it be this Court's warrant?

MR RICHTER: Well, perhaps not this Court's warrant. There

would have to be a warrant issued, committing them

to custody, in circumstances where, from the

material known to this Court, that conviction

cannot stand in the end, without a retrial on a

proper basis. And we would argue that at a

retrial, on a proper basis, Paltos could not be

convicted on the evidence. He simply could not be

convicted. There is just not enough evidence.

MASON CJ: Yes, well, you have made that point.

MR RICHTER: If the Court pleases.

MASON CJ: Yes, Mr Solicitor.

MR MASON:  Your Honours, it has been submitted today that

investigations have to be on foot. To concentrate

on investigations is to be misled into thinking

that investigations by police are themselves the

relevant course of justice. This is a charge of

conspiracy to pervert the course of justice.

Murphy was a charge of attempt to pervert the

course of justice.
A conspiracy to do unlawful acts can precede, obviously, the circumstances in which the unlawful

act would occur. In Gillies, 2nd Edition, on the

Law of Criminal Conspiracy, at page 36, he cites a

case of conspiracy for the destruction of a child

after it was born, where the agreement was made

obviously while the child was in utero and while,

obviously, the means of destruction had not yet

been agreed upon.

Your Honours, if the course of justice can be

perverted after it is completed, with the
punishment of a witness or a juror, why cannot

there be an agreement or a conspiracy to pervert it

before it commences, if the other elements of

intent and an agreement to do that which would be a

perversion are established?

Rogerson 117 6/11/91

We submit that Meyrick's case, Hammersley's

case, and indeed, the decision below, Rogerson, all

accept that the mere fact that the agreement

anticipated the police investigation was not itself

an essential difficulty. Another case which I will

come to in a slightly different context, which we

would ask the Court to just note in the same

context, is Reg v G, F, Sand w, (1974) 1 NSWLR 31.

MR MASON:  Your Honours, the statement of principle in

Murphy's case at pages 609 and 610 makes plain, in

our respectful submission, that the course of

justic~ is always the curial course, but the reason

why interference with investigative processes by

police is an offence is that that has the capacity

to interfere, and therefore would ground a charge

of contempt or conspiracy.

Your Honours, in any event, this conspiracy

spanned the time both before and after 16 July and
it is not correct, we submit, to say that the Crown

case was fought on the basis of the meeting in the

Kings Cross restaurant or nothing.	Your Honours,
the particulars of overt acts have been given.	The
record of interview that was given by

Mr Nowytarger, exhibit AC which is not reproduced,

but which was given long after to a police officer,

was tendered and admitted against each defendant.

Likewise with - - -

BRENNAN J:	Why was it admitted against each defendant?
MR MASON:	Because it was an act in furtherance of and

continuation of and proof of the continuing purpose

of the parties.

BRENNAN J:	I see.
MR MASON:	And authority for that is this case of

Reg v G, F, S, and w. May I hand the Court copies

of that. Your Honours, I do not propose to read

the details. It is paragraph 1 of the headnote on

page 31 which supports the proposition I earlier

made, and paragraph 5 of the headnote which, in my

submission, supports the proposition I have just

made as to the statements to the police being
capable of being seen as implementation and

continuation of the unlawful purpose.

Your Honours, Selvage's case was cited by my

learned friend, Mr Hughes, as authority for the
proposition that there had to be this element of

temporality between the investigation and the act

in order to make the offence. May I ask

Your Honours to turn please to just one passage in

the report in (1982) 1 QB 372 at 381, line C in the

Rogerson 118 6/11/91

judgment of the court, where Lord Justice Watkins

said:

It has to be borne in mind that in the

present case there was not the slightest
suggestion that criminal proceedings were

pending or imminent or being investigated or

that actual proceedings were within the

contemplation of Mrs Selvage or Mr Morgan or

anyone else at any relevant time.

So that puts that case on that aspect entirely

apart.from the case that was run here, and it was

put to the jury as against each of the accused.

In answer to my learned friend, Mr Hughes'

submission, that there has to be knowledge of a

criminal matter, we would submit that the offence
of conspiring or attempting or perverting the
course of justice extends to interference with

civil curial processes. Vreones' case has been

referred to already. Also in the same effect is

Kellett, (1976) QB 372. So how then can knowledge

of the criminality be of the essence of the

offence, we respectfully ask? Our case does not

assert that the mere telling of lies to the police

proves the offence, and I will say no more than

make that submission.

In reply to the submission by my learned

friend, Mr Richter, in particular and Mr Hughes

this morning, that we have not excluded the

possibility of a conspiracy to defraud the

Commonwealth revenue, the way they were putting

this was that, in effect, the Crown has failed to

exclude a fact that is consistent with innocence

and therefore the whole offence fails. There are,

in our submission, three answers to that

submission: the first is that the essence of the

conspiracy alleged and, we submit, proved, was the

cover-up of an existing problem. This was not a

conspiracy to bring about a future defrauding of	the revenue by proffering some documents; it was to
cover-up investigation of, let it be assumed, an
existing breach of Commonwealth law, and if that is
so, once it is accepted that State police have a
function in relation to the detection of
Commonwealth offences, then that problem goes.

A second answer is that to prove that one

object of a conspiracy may be to, let it be

assumed, cheat the Commonwealth, does not disprove

that an object of the conspiracy was to interfere

with the course of justice, and in	Professor Gillies book at pages 58 and 59, the
learned author cites a number of cases, including Gerakiteys, and Sorby and Greenfield, in support of

Rogerson 119 6/11/91

the proposition that merely to prove additional

conspiracies does not create an element of
duplicity or does not detract from proof of the

conspiracy charged if, of course, that conspiracy

is established.

The third reply we make, Your Honours, is that section 86 of the Commonwealth Crimes Act, relating

to conspiracies, has been held not to provide an

exhaustive code which precludes an indictment for

common law conspiracy in the appropriate case.

Whilst I have not had a chance to check the cases,

the cases cited in Watson and Watson, Australian

Criminal Law Federal Offences, paragraph 761, are

Connor v Sankey, (1976) 2 NSWLR 570; Sankey v Whitlam, (1978) 53 ALJR 11; and Reg v Cahill, (1978) 22 ALR 361.

It was suggested this morning that perhaps if

the Crown has failed to make good its proof of a

guilty intent as against all of the conspirators,

then the Crown fails entirely. Not so, in our

submission. Again, we simply cite Gillies,

page 60, so long as the Crown establishes against

two or more, the conviction is good against the two

or more against whom the matter is established, and

in this case Karp was a co-conspirator, together
with the other three who were charged.

May I just very briefly go to the paper which

was handed up this morning. Your Honours, there
was from Dr Paltos's solicitor an application for a
directed verdict, at page 413. He was the only one

that sought it but, clearly, it was treated as being made on behalf of all parties. That was

refused.

Mr Neil's application appeared to focus, from

the short report at page 413 of the application

book - appeared to concentrate more upon Todd's

case and the issues that ended up surfacing in the

Court of Criminal Appeal. Reading from 413,

however, it is quite clear that the solicitor for

Dr Paltos fairly and squarely said, "No case,

directed verdict", and we accept that that was good

for all. It was refused. And, thereafter, the

question of no evidence just died from the case.

The Crown case was always as against Paltos

and Nowytarger, a case that was circumstantial and

based on inference. And at page 684 in volume III,

the learned trial judge reminded the jury, in the

middle of the page:

The evidence of Karp of a meeting at the

restaurant in Kings Cross ••..• when the

proposition was put to him to assist in

Rogerson 120 6/11/91

providing a bogus explanation for some

$60,000 ..... is direct evidence which you could

use to lead to the inference on the Crown case

that Rogerson and Nowytarger had devised the

scheme; that they conspired to deflect a

police enquiry which was then imminent; that

Paltos joined the agreement, that is by	agreeing to seek out Karp to provide his
assistance and thereafter that Karp agreed to join the conspiracy -

There was a favourable Chamberlain direction and

then the various overt acts have been referred to

already.

In paragraph 6 of our short outline we do

submit that the evidence was clearly open to be

accepted by the jury if one accepts the timing of

the meeting, the fact that at the meeting it was

clear that Rogerson and Nowytarger had been

detected at the bank and photographed. Karp's

evidence that the agreement was designed to throw

anyone who investigated off the track and that was

what he was asked to do. The very nature of the

transaction, the essence of it, was to explain the
receipt of the money and that, in itself, bearing

in mind that this was a police officer, must have

brought home an awareness that an inquiry was a

possibility that would flow and was designed to be

overcome.

As against Paltos, but query against

Nowytarger because we do not know at what stage he

entered the meeting, although when he gave his dock

statement he spoke as if he had been at the whole

of the meeting when he reiterated his version of

the genuineness of the agreement but, certainly as

against Paltos, we say in paragraph (d), Rogerson told Karp there had been photographs taken in the

bank and there was some suspicion regarding these

moneys in these accounts.

This morning the Court has been taken to

page 191 and the cross-examination from Mr Paltos's solicitor that Karp himself did not, as at 19 July, have knowledge of any police investigation

contemplated. In our submission, that evidence did

not have to be accepted and does not contradict the

other evidence upon which the Crown relies. More

importantly, the cross-examiner shied clear of

asking the vital question which was: "And did you

think that a police investigation might never

follow?" In our submission, a belief that a police investigation could or might follow would be enough

to establish the mens rea.

Rogerson 121 6/11/91

BRENNAN J: That was not a question that could have been

asked relevant to the mens rea of Paltos, could it?

MR MASON:  No, it could not in any event, Your Honour.

Your Honours, as against Nowytarger, on page 3 we have endeavoured to summarize the key aspects that of knowledge of an illicit purpose and a purpose show yes, there was evidence fit to go to the jury

that was related to police investigation of

Rogerson. Against paragraph (d), if the Court could note that if one looks at Nowytarger's dock

statement at 793, he suggests that he was present at the whole of the meeting and gives his version

that yes, the whole thing was designed to cover up a slip, but an agreement that was agreed two years

previous and was genuine. The visit to prison

where Nowytarger used a false name - see page 198 -

was also relied upon and is also, in our

submission, evidence of an illicit intention.

Your Honours, the redirection discussion at

818 to 823 I will not burden the Court with going
through in detail, but Your Honours would see if
you did turn to it that for a while the trial judge

was not willing to give a redirection, but

ultimately a very strong redirection was given at

823. In our submission, that, in words of one

syllable, brought home to the jury the need to find

as against each accused proof beyond reasonable

doubt that they were - that each accused believed

that a police inquiry would take place in that

context at that time. That was a favourable

direction.

There was never any ground of appeal which

challenged the sufficiency of the evidence to go to

the jury on that regard. It is true, as

Your Honour Justice McHugh pointed out that there

is a statement - in fact there was a couple of

statements saying there was no evidence. Those

statements were always in support of a ground

complaining of the directions about intent to

pervert and, in our submission, the directions were

clearly given and the evidence was clearly open to

be accepted.

In conclusion, Your Honours, the meaning of the word "burke" if I may -

MASON CJ: You are leaving your best point to last?

MR MASON:  Yes. It is derived from a criminal executed in

Edinburgh in 1829 to "kill secretly by suffocation or strangulation or in order to sell the victim's

body for dissection as Burke did, and in a

figurative sense, to smother or hush up".

Rogerson 122 6/11/91

DEANE J:  Mr Solicitor, in the overt acts that are annexed

to your latest document, "4" specifies the

Miss Jones incident.

MR MASON:	Yes.
DEANE J:	How does the Crown now say that the evidence of

Miss Jones - or what does the Crown now say the

evidence of Miss Jones went to prove?

MR MASON:  It went to prove that Rogerson had a large sum of

money received in circumstances that he certainly

would have believed called for some defensive

action, to put it in that way.

DEANE J: But the Crown expressly disclaimed the suggestion

that it had been proved beyond reasonable doubt

that the white powder was heroin or that a specific

crime was involved.

MR MASON:  I do not know as to the latter. My learned

friend, Mr Horler, said yesterday that there were

no charges. With respect to him, that is not

correct. There were charges which were pending

relating to that event. Of course the jury were

never told about them and they were dropped

following the conviction, at first instance, in

this present case.

DEANE J: As it emerged, its only relevance was money that

needed explaining? You are under seige?

MR MASON:	Yes, may I get some help to answer? The car story has, obviously, been rejected by the jury and
the question of where did the money come from
remains an issue, but as to it being an overt act I
think I have difficulty in seeing that it was an overt act in the conspiracy charged.

DEANE J: Then, why is it not now obvious that in

circumstances where Rogerson, having $60,000 cash

in the bank, obviously opened the area that you are

relying on, the Miss Jones incident for, that even

if it were technically admissible, why is it not

obvious that that evidence should have been

rejected?

MR MASON:	On the prejudicial -
DEANE J:	In the sense that all it did, in the context where

there was obviously money that required

explanation, was cast a suggestion of drug dealing

and heroin and so-on, which the Crown was not

prepared to take to the stage of alleging proof

beyond reasonable doubt.

Rogerson 123 6/11/91

MR MASON:  Because there was a lot of evidence brought out

in cross-examination that there was nothing

unlawful about having money in a false bank

account.

DEANE J: No, but I mean in the case of this accused

Rogerson having $60,000 in cash or whatever.

MR MASON: Well, that in itself was arguably, and the

defence were certainly arguing, a potentially

innocent situation that did not suggest a motive to

arrange a cover-up in fear of a police

investigation.

DEANE J: But does that not really take you back to the

Crown asking the jury to infer crime which the
Crown could not prove, to get it out of that

problem?

MR MASON:  As Your Honour pointed out yesterday, in one

sense that is the way the Court of Appeal saw the

case. That was not really doing justice to the way

the case was run below because the Crown was

conceding that certainly as against the other

co-conspirators, the circumstance in which Rogerson

perhaps got the money - and, of course, the link
between that money and the money in the bank

accounts was itself not established, or a matter of

inference perhaps only, because of the proximity of

time - the Crown did not have to go so far as to

prove that the money was unlawfully obtained. The

Crown case always was that the money was in

Rogerson's and Nowytarger's control in

circumstances where they must have realized that a

police investigation was on the cards, and that

fact is relevant to that, in my submission.

DEANE J: Except, in the Court of Criminal Appeal on those

two pages we have looked at constantly, the effect

of what the Court of Criminal Appeal said was that

the jury were effectively instructed that they had
to find that the money came from some illegal

activity, and I read Their Honours as meaning

criminal.

MR MASON:	Yes.
DEANE J:	Now, if that were the real test, why should not

Miss Jones' evidence have been rejected, if its

real relevance was going to be to suggest a

criminal activity that it was quite incapable of

proving?

MR MASON: Well, I do not accept that as against Rogerson it

was incapable of proving a criminal activity.

Rogerson 124 6/11/91

DEANE J:  I am sorry, I thought it had been accepted by the

Crown that the inference that the white powder was an illegal drug could not be drawn.

MR MASON: Well, I better really be sure on answering this.

It certainly was not proved it was any more than white powder. I am told that she did say it was heroin and that was left in. I realize this does

create some difficulty, but certainly so far as the

issue of general importance is concerned and the

way we put the offence of conspiring, it is not the

truth of the fact; it is the intention to cover-up

the inquiry that is the critical factor.

DEANE J: Yes, I follow that, thank you.

MASON CJ:	Now, Mr Solicitor, have you concluded what you want to put to the Court?
MR MASON:	Yes I have, Your Honour.

MASON CJ: Now, if one makes the assumption in your favour at

this stage, that special leave is granted, the

appeal is allowed as against one or more of the

respondents and the convictions to that extent are

set aside and the matter remitted to the

Court of Criminal Appeal - - -

BRENNAN J: Order set aside.

MASON CJ: - - - order set aside, what are you then asking

this Court to do in terms of the applicants?

MR MASON: Nothing, Your Honour. That would be a matter

which would be taken up with the

Court of Criminal Appeal. Maybe the Court could

perhaps so direct, but we would not ask - - -

MASON CJ: Ask this Court to issue a warrant.

MR HUGHES: Yes.

MASON CJ: Thank you. Yes, Mr Hughes.
MR HUGHES:	Could I have the Court's leave to reply on one

matter to what my learned friend said, because it

was really a new departure?

MASON CJ:  Mr Hughes, would you come around so that your

words are recorded.

MR HUGHES:  I am so sorry, yes. I seek the Court's leave to

deal with one matter raised by the Solicitor, which

was in the nature of a new departure in his reply.

Mr learned friend said that we had not kept the

issue of no evidence alive after our motion for a

Rogerson 125 6/11/91

verdict by direction was refused at the end of the

Crown case.

MASON CJ: Yes.

MR HUGHES:  If one consults page 818 of the transcript, that

suggestion is shown to be incorrect. At the top of

the page, Mr Morris Neil asked His Honour:

to direct the jury to acquit the accused on

the basis that the evidence as a whole is
incapable of supporting a conviction beyond a
reasonable doubt, incapable of supporting a

finding beyond a reasonable doubt.

And His Honour said:

These are the matters you raised at the end of the Crown case.

And Mr Neil said:

Yes.

Now, my learned friend suggested -.and not having

been there and there being no complete record of

what was said at the end of the Crown case, I

cannot enter a positive denial - but my learned

friend did say that at the end of the Crown case

Mr Neil placed emphasis on Todd's case. Todd's

case is on our list and any argument based on

Todd's case necessarily involves that which is

established by the later cases that there cannot be

an attempt to pervert the course of justice or a

conspiracy to pervert the course of justice, unless

the accused is shown to have been aware of a police

investigation and of facts which, on legal

analysis, would constitute some sort of crime.

So, it is a little unfair, in my respectful

submission - and I know the Solicitor did not try

to be unfair - objectively, to taunt us with not
taking points or that particular point.	If the
Court pleases.

MASON CJ: Thank you, Mr Hughes. The Court will consider

its decision in this matter.

AT 11.44 AM THE MATTER WAS ADJOURNED SINE DIE

Rogerson 126 6/11/91