Tasmania v Crane (No 2)
[2006] TASSC 102
•24 November 2006
[2006] TASSC 102
CITATION: Tasmania v Crane (No 2) [2006] TASSC 102
PARTIES: TASMANIA, STATE OF
v
CRANE, Stephen Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 196/2005
DELIVERED ON: 24 November 2006
DELIVERED AT: Launceston
HEARING DATE: 23, 24 November 2006
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Particular offences – Offences relating to the administration of justice – Other offences – Perverting justice – Whether committed by denying the existence of evidence.
Criminal Code (Tas), s105.
Cane v R [1968] NZLR 787, considered.
Aust Dig Criminal Law [316]
REPRESENTATION:
Counsel:
State: P Sherriff
Accused: G A Richardson
Solicitors:
State: Director of Public Prosecutions
Accused: G A Richardson
Judgment Number: [2006] TASSC 102
Number of paragraphs: 6
Serial No 102/2006
No 196/2005
STATE OF TASMANIA v STEPHEN CHARLES CRANE (NO 2)
REASONS FOR RULING CRAWFORD J
24 November 2006
At the close of the State's case it was submitted for the accused that there was no case to answer on the first count. It charges that on 27 October 2003, at the scene of a single vehicle accident in which he was the driver, he falsely stated to Transport Inspector Youl that he did not have a weighbridge docket for the truck he had been driving and that at the time his intention was to obstruct, pervert or defeat the due course of justice.
The evidence is capable of satisfying the jury of the following facts:
1Shortly before the accident, he drove the truck away from Metalcorp at Bell Bay, on route for Dulverton and suffered the accident as he drove off the Batman Bridge.
2At the time he drove away from Metalcorp he knew that the mass of the truck and its load exceeded the mass limit allowed by law and he had possession of a weighbridge ticket that made that clear, the vehicle having been weighed at Metalcorp shortly before he left with the truck and its load.
3Transport Inspector Youl and police officers attended the scene of the accident to investigate its cause. Mr Youl asked the accused if he had a weighbridge ticket for the load and falsely replied, "No". Mr Youl then said: "I know you weigh every load out, why haven't you got a weighbridge ticket with this load" and the accused falsely answered "I don't need one, I get paid by the load". In a formal interview later that day he contradicted that last statement by admitting that he was paid by the tonne.
Mr Richardson submitted that merely denying that he was in possession of a weighbridge ticket that he knew would reveal that the vehicle was overweight is not, in the circumstances of the case, capable of amounting to the actus reus required for the crime of perverting justice. Counsel were unable to find many relevant authorities, but the one particularly relied upon by Mr Richardson was Cane v R [1968] NZLR 787. The Court of Appeal was there dealing with a charge of this crime against a driver who had falsely stated to a police officer that his passenger had been the driver of the car and not him. It was submitted for the offender that merely to tell a lie to the police in one's own defence, and no more, will not support a charge of this crime. After first observing that the court had not heard of a person being charged with a crime for doing no more than tell an untruth to a police officer in order to escape liability, at 790 the court said in an obiter dicta:
"We would doubt whether he who, having in fact committed a crime, on being asked by a police officer whether he had committed it, replies 'No', thereby telling a deliberate lie with the intent, moreover, of putting the police on to a false scent, can properly be charged under this subsection with attempting to defeat the course of justice. Nemo seipsum prodere tenetur [no-one is bound to incriminate himself]; and if that had been all that this appellant did, and all that he was charged with, we are inclined to the view (though it is not necessary to decide the matter) that such a lie would not have sustained the charge on the second count."
Later the court stated its reasons for finding that the evidence sustained the conviction:
"The appellant was not obliged to incriminate himself when questioned by the police. Had he refused to answer their questions, nothing could have been said as to his silence. We are disposed to think that a similar result must have followed upon a simple denial of guilt in response to police questioning. But to allege that another named person, and not he, did the acts under investigation is another matter, and we have concluded that to do what was proved to be done in this case was conduct made criminal by the section."
I will accept that a person is under no obligation to incriminate himself and a false denial of criminal liability is insufficient for this crime. I will also accept that if a person refuses to answer a question whether he has relevant evidence, such as a weighbridge ticket, he or she will not be committing the offence if it is committed for protection against likely proceedings. However, it seems to me to be a different matter if the person positively asserts to a police officer, or a transport inspector, that a particular piece of evidence does not exist. In this case there is evidence that the accused represented to Mr Youl that he did not have a weighbridge ticket and that the reason for that was that one was not needed because he was paid by the load, and inferentially, not by the tonne. It seems to me that the jury would be entitled to find him guilty upon the basis that he endeavoured to mislead Mr Youl into believing that there was no record of the weight of the vehicle prior to the accident, his object being to deter Mr Youl from making further enquiries and finding out what in fact was the mass of the vehicle when the accused set out on his journey, so as to prevent the institution of a charge against him. In other words, to positively assert that a particular piece of incriminating evidence does not exist can be sufficient for this crime.
I rule that there is a case to answer.
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