Tasmania v Crane

[2006] TASSC 82

[2006] TASSC 82

CITATION:            Tasmania v Crane [2006] TASSC 82

PARTIES:  TASMANIA, STATE OF
  v
  CRANE, Stephen Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  196/2005
DELIVERED ON:  18 October 2006
DELIVERED AT:  Launceston
HEARING DATE:  16 October 2006
JUDGMENT OF:  Slicer J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Information, indictment or presentment – Motion to quash – Time for motion.

Criminal Code (Tas), ss105, 352.

R v Collins B55/1993; R v Rowell [1978] 1 All ER 665, considered.

Aust Dig Criminal Law [729]

REPRESENTATION:

Counsel:
           State:  P Sherriff
           Accused:  G A Richardson
Solicitors:
           State:  Director of Public Prosecutions
           Accused:  G A Richardson

Judgment Number:  [2006] TASSC 82
Number of paragraphs:  13

Serial No 82/2006
File No 196/2005

STATE OF TASMANIA v STEPHEN CHARLES CRANE

REASONS FOR RULING  SLICER J

18 October 2006

1. The accused has, before plea, moved to quash the indictment in accordance with the Criminal Code, s352.

1. The indictment states:

"stephen charles crane at Deviot, in Tasmania, on or about the 27^th day of October, 2003 with intent to obstruct, pervert or defeat the due course of justice falsely pretended to transport inspector Cecil George Youl that he did not have a weighbridge docket and subsequently instigated Thomas Third to falsify a weighbridge docket indicating that the vehicle he had been driving, which vehicle had been involved in an accident, was not loaded beyond its permissible load limit."

1. The particulars specify two distinct acts involving different persons and forms of obstruction or perversion of justice.  The first act is said to be the making of a statement or use of words made to a transport inspector which deny the possession of a weighbridge docket.  The second is that at a subsequent time Mr Crane instigated another person to falsify a weighbridge docket.  From the indictment, including the particulars, the crime or crimes can be identified as:

(1)the accused was the driver of a motor vehicle;

(2)the vehicle was involved in an accident while the accused was driving;

(3)the vehicle was loaded beyond its "permissible load limit";

(4)a transport inspector was engaged in the investigation of the accident "in due course of justice";

(5)the accused, with intent to obstruct, pervert or defeat the due course of justice, falsely stated to the investigator that he, the driver, did not have a "weighbridge docket", knowing such not to be the case;

(6)at a time subsequent to that false statement, the accused instigated another to falsify a weighbridge docket.

1. The Code, s105, states:

"105 ¾ Perverting justice

Any person who does any act or makes any omission with intent in any way whatever to obstruct, prevent, pervert, or defeat the due course of justice or the administration of the law, is guilty of a crime.

Charge:

Perverting justice."

1. It provides for an "act or omission".  It differs in wording from the equivalent provisions in the Criminal Code (Qld), ss140 and 148, which respectively refer to any person who:

"attempts, in any way not strictly defined … to obstruct, prevent, pervert or defeat the course of justice …"

or

"… wilfully obstructs or resists …".

1. An attempt (s140 Qld), is not an attempt to commit a substantive crime or offence itself, but constitutes a substantive offence or crime in its own right (R v Rowell [1978] 1 All ER 665). It may be that "an attempt" can constitute a continuing course of conduct (see R v Murphy (1985) 158 CLR 596). It might encompass an act or series of acts which has or have the tendency to defeat or obstruct and is or are intended to pervert the course of justice (Rowell (supra); R v Machin [1980] 3 All ER 151). But the Tasmania provision is differently worded (R v Singline 41/1962; R v Collins B55/1993).  The indictment here alleges the perverting of justice of affecting investigation by a public officer and proceedings which might be imminent (R v Selvage and Morgan [1982] 1 QB 372) and the subsequent provision of documentation for potential use in proceedings, once commenced, or in progress. The Code, s105, does not create a "continuing crime" as in unlawful possession or permit a series of contemporaneous or sequential acts such as are permitted in the crime of assault in the form of "did punch and kick, etc". In R v Rowell (supra) at 671, Ormerod LJ dealt with the question of duplicity in the following terms:

"The remaining grounds of appeal, namely duplicity in the indictment and the lack of sufficiently proximate acts to constitute an attempt, are both based, in our opinion, on the same false premise which arises from the description of the offence as 'Attempting to pervert the course of public justice'. The use of the word 'attempt' in this context is misleading. The appellant was not charged with an attempt to commit a substantive offence but with the substantive offence itself which is more accurately, if less compendiously, described in Pollock B's words which we have already quoted ([1891] 1 QB 360 at 369), namely the doing of an act (or we would add a series of acts) which has a tendency and is intended to pervert the course of justice. Lord Colerdige CJ said ([1891] 1 QB 360 at 367): 'I think that an attempt to pervert the course of justice is in itself a punishable misdemeanour …'.

Consequently all the appellant's acts, his two false statements to the police accusing the man, described but not identified by name, of robbery, the placing of the toy pistol in the bus and the arranging that it should be found by Cronin are all part of a course of conduct between the dates alleged which had a tendency and, as the jury must have found, was intended to pervert the course of justice.  That it did in fact cause a grave injustice to Timms, who was wrongfully arrested and detained in custody for several days, is beyond question.  No question of duplicity in the indictment, therefore, arises.  The situation is quite different from that which arose in R v Ballysingh ((1953) 37 Cr App Rep 28), and it would be quite artificial to regard each step taken by the appellant as a separate 'attempt'.  Similarly, no question of proximity arises because the making of the false statements to the police is the offence 'in itself'.

For these reasons we dismissed the appeal but for reasons already given we felt able in the circumstances existing at the date of the appeal to vary the sentence of nine months' imprisonment by suspending it for one year."

1. The allegation of "attempt" encompassed a course of conduct, the terminology used by the High Court in Murphy (supra).  The attempt was to produce a consequence, the totality of which constituted a substantive offence.  But the Code is differently worded, and leaving aside the compendium of the varying intentions of "obstruct, pervert or defeat" (Collins (supra)), requires the commission of an act, not conduct or attempt to bring about a consequence.

1. Here the indictment did not allege a series of acts each following the other and forming a continuum.  It alleges separate and distinct acts which, in turn, required an accompanying intention.

1. The indictment, as framed, offends the requirements of the Code, s311.  The addition of the allegation of instigation offends s313.  The first allegation is against the accused as principal while the second is as an instigator.  The latter allegation was not expressed in the alternative (s315, Collins  (supra)).  The State did not seek to amend the indictment by splitting the particulars into separate counts as permitted by the Code, s311(2).  Instead, counsel relied on the contention that s105 creates a "continuing" crime.

1. The motion to quash is, here, not a pedantic exercise.  The accused seeks to argue, in some form, that a denial of the existence of a document, thing or object which might be incriminating, during the course of questioning by a police officer, cannot constitute perversion of justice.  Counsel seeks to argue that the crime cannot be established against a person "who has done no more than tell an untruth ¾ not on oath ¾ to a police officer, in order himself to escape criminal liability" (Cane v R [1968] NZLR 787 at 790). Counsel claims that such an argument is tenable and consistent with the ratios and dicta of authorities such as Rogerson (1991) 60 A Crim R 429; R v Todd [1957] SASR 305; Foord (1985) 20 A Crim R 267 and Meissner (1995) 80 A Crim R 308.

1. However, on the argument advanced or foreshadowed by counsel, the indictment prevents a determination of law in favour of or adverse to the accused.  The accused conceded that the second part of the allegation, namely instigations of another, cannot come within the primary contention.  It is contended that if an argument is advanced absent evidence, that the indictment "does not in substance disclose any crime" (s353), the indictment itself must withstand demurrer or perhaps motion to arrest judgment (s353(3)), since the second part of the particulars will remain intact and support the "count".  Further, if evidence is called, any "no case submission" would fail in that the "count" would nevertheless go to the jury.  Finally, if the indictment as presently drawn goes to the jury for verdict, it would be impossible to determine whether the jury convicted on either or both of the acts.  There is merit in the approach taken by counsel.

1. The Code, s352(4), entitles an accused to be discharged from any proceedings on that indictment but permits the preferment of a fresh indictment. For that reason the quashing of the indictment would be, at this stage, futile. Further the quashing of the indictment itself, because of the prejudice caused by the first particular, would prevent the trial on the second portion which is not susceptible to the primary argument. I make no determination of that primary argument.

1. Section 352 permits amendment. Counsel for the prosecution will be permitted to seek the amendment of the indictment into two counts, each providing for the act of "obstructing" the investigation (or, if it be so, a course of conduct) and the act of instigation. If an amendment is made, the accused would be entitled to plead, absent evidence, demurrer or plead and demur together (s353(c)). If that cannot be done because evidence is required then the accused retains the ability, at the conclusion of the prosecution case, to submit that there is no case to answer.