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

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)

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…

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 Reg v Rogerson

Details

AGLC: Reg v Rogerson [1991] HCATrans 312
Case: [1991] HCATrans 312
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal before the High Court of Australia. The applicant, Morris Enrico Nowytarger, was seeking to challenge a decision related to the offence of conspiracy to pervert the course of justice. The submissions focused on the elements the Crown must prove to establish such a conspiracy, particularly when the alleged conduct involves an agreement to provide information to the police.

The central legal issue was what constitutes a "course of justice" in the context of conspiracy to pervert its course, and what knowledge the accused must possess regarding the existence of a police investigation and potential criminal activity. Specifically, the court was asked to consider whether it is incumbent upon the Crown to prove that the accused were aware of facts that amounted to a crime, and that a police investigation into suspected criminal activity was underway at the time of the alleged agreement.

The submissions argued that established authorities, including English cases like *Thomas* and *Selvage*, and an Australian case, *Murphy*, indicate that a course of justice, at least in the form of a police investigation into suspected criminal activity, must be on foot. Furthermore, the accused must be aware of facts that might constitute a crime, and that such an investigation might lead to a prosecution. The court considered whether the mere covering of tracks, without explicit knowledge of a specific investigation or potential prosecution, would suffice to establish the offence.

Orders