Tasmania v Green, Nicholson and White
[2007] TASSC 54
•18 July 2007
[2007] TASSC 54
CITATION: Tasmania v Green, Nicholson and White [2007] TASSC 54
PARTIES: TASMANIA (STATE OF)
v
GREEN, Bryan Alexander
NICHOLSON, Guy Ronald Leonard
WHITE, John Charles
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 12/2007
DELIVERED ON: 18 July 2007
DELIVERED AT: Hobart
HEARING DATE: 27 June 2007
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Criminal Law – Particular offences – Miscellaneous offences and matters – Bribery and corruption – Doing an act intended to interfere with the free exercise of a Minister's duty and authority – Interference not necessarily improper or wrongful.
Criminal Code (Tas), s69.
Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201; Meissner v R (1995) 184 CLR 132, referred to.
Aust Dig Criminal Law [411]
Statutes – Acts of Parliament – Rules of construction – Supplying, omitting and substituting words – Doing an act intended to interfere with the free exercise of a Minister's duty – No basis to import words to qualify interference.
Criminal Code (Tas), s69.
Acts Interpretation Act 1931 (Tas), s8A.
Cooper Brookes (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297; CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Brennan v R (1936) 55 CLR 253; Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273, applied.
Thompson v Goold & Co [1910] AC 409, followed.
Aust Dig Statutes [29]
Criminal Law – Jurisdiction practice and procedure – Information, indictment or presentment – Joinder – Joint or separate trials – Effect of embarrassment or prejudice – Joinder of conspiracy count with substantive count.
Criminal Code (Tas), ss69, 297 and 326(3).
R v Moore [1988] 1 Qd R 252; R v Hoar (1981) 148 CLR 32; R v Pollitt [1991] 1 VR 299, discussed.
Aust Dig Criminal Law [726]
REPRESENTATION:
Counsel:
Crown: T J Ellis SC and J E Williams
Bryan Alexander Green: M Daly
Guy Ronald Leonard Nicholson: A G Melick SC
John Charles White: D J Porter QC
Solicitors:
Crown: Director of Public Prosecutions
Bryan Alexander Green: Rae and Partners
Guy Ronald Leonard Nicholson: FitzGerald & Browne
John Charles White: Page Seager
Judgment Number: [2007] TASSC 54
Number of paragraphs: 67
Serial No 54/2007
File No 12/2007
TASMANIA v BRYAN ALEXANDER GREEN, GUY RONALD LEONARD NICHOLSON and JOHN CHARLES WHITE
REASONS FOR JUDGMENT UNDERWOOD CJ
18 July 2007
The indictment
Each of the three accused was arraigned on an indictment that charged them with one count of interfering with an executive officer, contrary to the Code, s69, and one count of conspiracy to commit the crime of interfering with an executive officer contrary to the Criminal Code, s297. The particulars to the former charge allege that:
"… on or about the 15th and 16th day of February 2006 [each of the three accused] did an act, namely entering into a written agreement between John Charles White as a Director of the Tasmanian Compliance Corporation and for and on behalf of that corporation and Bryan Alexander Green as Minister for Infrastructure Energy and Resources for and on behalf of the Tasmanian Government, that the Minister will not exercise powers under s 20(2) of the Building Act 2000 to authorise a body to be an authorised body, an act intended to interfere with the free exercise by a Minister of the Crown of the duties and [sic] authorities of his office."
The particulars of the charge of conspiracy are that between 7 February 2006 and 16 February 2006, each of the three accused agreed with the other two to commit the crime of interfering with an executive officer by agreeing that Mr White and Mr Green, "would make and sign an agreement intending that by doing so the free exercise of the duties and authorities of a Minister of the Crown would be interfered with".
Each of the accused entered a plea of not guilty to each count. At the conclusion of his submissions, Mr Ellis SC, senior counsel for the Crown, stated that he would not proceed against Mr Nicholson on the count of interfering with an executive officer and would file a nolle prosequi on that count.
The principal statutory provisions
The Code, s69, provides:
"Any person who does any act intended to interfere with the free exercise by the Governor, or by any member of the Executive Council, or by a Minister of the Crown, of any of the duties or authorities of his office is guilty of a crime.
Charge:
Interfering with an executive officer."
The applications and the issues
Immediately after the pleas had been taken and before a jury had been sworn or affirmed, each accused made applications pursuant to the Code, s361A, which relevantly provides:
"(1) After an accused person has been called upon to plead as provided in section 351(1), all or any of the following may occur before a jury is sworn if the court thinks fit:
(a)…;
(b)the court may determine any question of law or procedure that has arisen or is expected to arise in the trial;
(c)…;
(d)the court may determine any other question that it considers necessary or convenient to determine in order to ensure that the trial will be conducted fairly and expeditiously;
(e)…;
(2) …".
The first application was for a ruling upon the proper meaning of the words "intended to interfere with the free exercise …" as enacted in the Code, s69, this being a question of law that is likely to arise at the trial. The second application was for an order that the trial of the charge of interfering with an executive officer (count 2 on the indictment) be held separately from a trial of the charge of conspiring to commit that crime (count 1).
With respect to the first application, the contention on behalf of all the accused was that guilt of the crime charged by s69 required proof beyond reasonable doubt of an intention to interfere in a wrongful or improper manner with the free exercise by the Minister of any of the duties or authorities of his or her office. On behalf of the Crown, the contention was that wrongfulness or improperness was not an element of the crime enacted by the Code, s69.
With respect to the second application, the contention, again advanced on behalf of all the accused, was that the complications attendant upon the admissibility of evidence against each accused on each count was such that to jointly try the count of conspiracy with the count of committing the crime itself would prejudice and/or embarrass the defence. The Crown's contention was to the contrary.
The material facts
For the purpose of determining both applications, it was agreed that:
(1)the document appearing in the Crown papers, pages 1 to 3 inclusive ("the agreement"), was signed by Mr Green and Mr White; and
(2)at the time of signing, Mr Green was a Minister of the Crown in the State of Tasmania.
Before referring to the agreement, it is necessary to mention the Building Act 2000, as enacted at the time the agreement was signed. The preamble to that Act describes it as "An Act to regulate the construction and maintenance of buildings and building and plumbing matters and to provide for permits, enforcement matters and resolution of disputes". At the time the agreement was signed, the Building Act, s3(1), defined an "authorised body" to be a body authorised under Pt4 of the Act to accredit building practitioners. Section 23(1) made it an offence to carry out the work of a building practitioner to a value in excess of $5,000 without appropriate accreditation issued in accordance with Pt4 of the Act. The Building Act, s19, provided that an incorporated body or statutory body could apply to the Minister to be an authorised body for the purpose of accrediting a specified category of building practitioner. Section 20 provided:
"(1) The Minister may authorise a body to be an authorised body if satisfied that ¾
(a)the body has competence and expertise in accrediting building practitioners; and
(b)the statements referred to in section 19 demonstrate that the body is suitable to be an authorised body; and
(c)the proposed scheme meets any guidelines determined by the Minister.
(2) The Minister may authorise more than one body to be an authorised body for accrediting a specified category of building practitioner.
(3) The Minister may authorise a body to be an authorised body subject to any conditions the Minister considers appropriate.
(4) The Minister, by public notice, is to notify the authorisation of an authorised body.
(5) The Minister may issue guidelines in respect of matters relating to a scheme under which accreditation is granted."
The agreement describes itself as a "Service Level Agreement" and asserts that it relates to the conditions of authorisation of the Tasmanian Compliance Corporation Pty Ltd by the Minister as an authorised body pursuant to the Building Act, s20. It describes Mr White as "company secretary" and states that he signed "for and on behalf of the Tasmanian Compliance Corporation Pty Ltd". The recitals to the agreement refer to concerns should the corporation cease to provide building accreditation services, and a need for an orderly handover of records and the like. The agreement comprises 11 clauses, the ninth of which provides:
"9 The Minister agrees that he will not exercise powers under Section 20 (2) of the Act to authorise any additional body to accredit building practitioners, while the TCC remains so authorised, without first giving the TCC written notice 3 years prior to that authorisation."
The particulars supplied to the accused by the Crown plead that the terms of cl 9 are such that they interfere with the Minister's duties and authorities by requiring him to give the Tasmanian Compliance Corporation Pty Ltd three years' written notice prior to their exercise and/or by prohibiting the Minister from exercising those powers and duties unless and until he has given the company three years' written notice that he intends to do so.
Upon the assumption that the charge of interfering with an executive officer will not proceed against Mr Nicholson, the Crown case against Mr White and Mr Green is that they did an act, viz, signed the agreement containing cl 9, with the intention of interfering with the free exercise of the Minister of his duties or authorities of his office. As against all accused on the count of conspiracy, the Crown case is that each conspired, or agreed with, the others that Mr White and Mr Green would sign the agreement with the intention of interfering with the Minister's free exercise of his duties or authorities of office.
The meaning of the Code, s69
The task at hand is one of statutory construction and the duty of the Court is to ascertain what the Parliament meant when it enacted the words "… an act intended to interfere with the free exercise …".
Mr Ellis submitted that the words are plain, as is the intention, and that there is no warrant for adding wrongfully, or by improper means, to the word "interfere". His submission was that if an act is done with the intention to interfere as described in s69, the crime is complete, whether the means of interference were improper or not. Mr Porter QC, counsel for Mr White, submitted that there were strong grounds for interpreting the Code, s69, to mean improper or wrongful interference. His submissions were adopted by counsel for each of the other accused.
As Gibbs CJ said in Cooper Brookes (Wollongong) Pty Ltd v The Federal Commissioner of Taxation (1981) 147 CLR 297 at 304:
"It is an elementary and fundamental principle that the object of the court, in interpreting a statute, 'is to see what is the intention expressed by the words used': River Wear Commissioners v Adamson (1877) 2 App Cas 743, at p 763."
In the ascertainment of Parliament's intention, regard may be had to the words in their legal and historical context, per McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112. Context includes such matters as the existing state of the law and the purpose of the enactment. See CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Acts Interpretation Act 1931, s8A. If a literal meaning produces inconvenience or improbable result, an alternative construction, consistent with the purpose, is to be preferred. See Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) 218 CLR 273 at 281.
With respect to the construction of an Act that codifies the common law, it is prudent to bear in mind a passage taken from the joint judgment of Dixon J (as he then was) and Evatt J in Brennan v R (1936) 55 CLR 253. In that case their Honours were considering the provisions in the Western Australian Criminal Code concerning common purpose. Reference was made to the proposition that in some respects, the section appeared to be based on a statement of the common law that Sir Michael Foster made in reference to accessories before the fact. Their Honours said at 263:
"But it [the section in the Code] forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (Cf., per Lord Herschell, Bank of England v Vagliano Brothers [1891] AC 107 at pp 144, 145)."
More recently, in Boughey v R (1986) 161 CLR 10, Mason J (as he then was) Wilson and Deane JJ said at 21:
"A basic objective of any general codification of the criminal law should be, where practicable, the expression of the elements of an offence in terms which can be comprehended by the citizen who is obliged to observe the law and (where appropriate) by a jury of citizens empanelled to participate in its enforcement. History would indicate that the codifier will never achieve the clarity and completeness which would obviate any need for subsequent interpretation or commentary (see Jolowicz, Historical Introduction to the Study of Roman Law (1939), pp491-492; Gray, The Nature and Sources of the Law (1909) pp176-177). The courts should, however, be wary of the danger of frustrating that basic purpose of codification of the criminal law by unnecessarily submerging the ordinary meaning of a commonly used word in a circumfluence of synonym, gloss and explanation which is more likely to cause than to resolve ambiguity and difficulty."
If there is an obvious simple mistake or drafting error, it is an accepted canon of construction for the court to write a word into a statute (see Lindner v Wright (1976) 14 ALR 105; Marshall v Watson (1972) 124 CLR 640 at 649), but as Lord Mersey said in Thompson v Goold & Co [1910] AC 409 at 420:
"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of a clear necessity, it is a wrong thing to do."
At the end of the day, as Gibbs CJ said in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (supra) at 305:
"… if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that 'it may degrade into mere judicial criticism of the propriety of the acts of the Legislature', as Lord Moulton said in Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, at p 130; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied."
Most likely, the five crimes enacted in the Code, Ch7, entitled "Crimes against the Executive and Legislative Powers", owe their origins to a parliament's inherent right to punish for contempt and right to protect parliamentary privileges. Erskine May's, Parliamentary Practice, 23rd edn, describes parliamentary privilege at 75 as:
"The sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent, an exemption from the general law."
The publication House of Representatives Practice 5th edn, defines parliamentary privilege at 707 to mean:
"The special rights and immunities which belong to the Houses, their committees and their Members and which are considered essential for the proper operation of the Parliament. These rights and immunities allow the Houses to meet and carry out their proper Constitutional roles, for committees to operate effectively, for Members to discharge their responsibilities to their constituents, and for others properly involved in the parliamentary processes to carry out their duties and responsibilities without obstruction or fear of prosecution."
However, contempt and breach of privilege are not synonymous terms. See May (supra) at 128; House of Representatives Practice at 707. The distinction is clearly stated in Halsburys Laws of England, 4th edn, vol 24 at par1500:
"The power of both Houses of Parliament to punish for contempt is a general power similar to that possessed by the superior courts of law and is not restricted to the punishment of breaches of their acknowledged privileges. Any act or omission which obstructs or impedes either House in the performance of its functions, or which obstructs or impedes any member or officer of the House in the discharge of his duty, or which has a tendency to produce such a result, may be treated as a contempt even if there is no precedent for the offence. Certain offences which were formerly described as contempts are now commonly designated breaches of privilege, although that term more properly applies only to infringements of the rights or immunities of one of the Houses of Parliament."
It may be noted that with respect to contempt, there is no requirement that any obstruction or impediment be improper or carried out by improper means. In May at 147, under the heading "Improper Influence", the learned editors write:
"Conduct not amounting to a direct attempt improperly to influence Members in the discharge of their duties but having a tendency to impair their independence in the future performance of their duty may be treated as a contempt."
In the Commonwealth sphere, the Constitution, s49, empowers the Parliament to make laws with respect to contempt and pursuant thereto the Parliamentary Privileges Act 1987 (Cth) was enacted, s4 of which provides:
"Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member." [emphasis added]
This, of course, puts in express statutory form the contention advanced on behalf of the accused for the proper construction of the Code, s69. Similar provisions appear in the Parliament of Queensland Act 2001, s37, and the Legislative Assembly (Powers and Privileges) Act (NT), s5.
The Queensland Criminal Code, s54, and the Western Australian Criminal Code, s54, enact provisions similar to the Tasmanian Code, s69, but in these terms respectively:
Queensland
"Interference with Governor or Ministers
(1) Any person who advisedly ¾
(a) does any act calculated to interfere with the free exercise by the Governor of the duties or authority of the Governor's office; or
(b) does any act calculated to interfere with the free exercise by a member of the Executive Council of the duties or authority of the member's office as a member of the Executive Council or as a Minister of State;
is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
(2)The offender may be, and it is hereby declared that the offender always was liable to be, arrested without warrant."
Western Australia
"Interference with Governor or Ministers
Any person who —
(1) Does any act calculated to interfere with the free exercise by the Governor of the duties or authority of his office; or
(2) Does any act calculated to interfere with the free exercise by a member of the Executive Council of the duties or authority of his office as a member of the Executive Council or as a Minister of State;
is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
Summary conviction penalty: Imprisonment for 2 years or a fine of $8 000."
There is nothing in the those Queensland and Western Australian provisions to suggest that proof of improperness or unlawfulness is an element in the crime of interfering with the free exercise by a Minister of a relevant duty or authority in those States. As Mr Porter QC submitted, the word "calculated" appears to suggest an objective description of the relevant act or acts.
There is nothing in the likely origins of the Code, s69 to suggest that there had to be some improperness or unlawfulness before interference with the free exercise by a Minister of his or her duties and obligations as a Minister constituted a contempt of parliament or a breach of privilege. Further, it might be said that an apparent perceived need to enact the Parliamentary Privileges Act 1987 (Cth), s4, the Parliament of Queensland Act 2001, s37, and the Legislative Assembly (Powers and Privileges) Act (NT), s5, suggests that that was not the case, at least in those jurisdictions.
First, it was correctly put on behalf of the accused that the Code is a penal statute and therefore had to be given a strict construction. However, with respect to that general proposition, there should be borne in the mind the following, oft quoted, statement of Gibbs J (as he then was) in Beckwith v R (1976) 12 ALR 333 at 339:
"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563, at pp 567-568; Craies on Statute Law, 7th ed, pp 529-534. The rule is perhaps one of last resort."
Second, it was submitted that Prothonotary of the Supreme Court of New South Wales v Costello (1984) 3 NSWLR 201 was authority for, or provided strong support for, the proposition that "intended to interfere with the free exercise …" required proof of wrongful or improper behaviour.
Costello's case did not involve any question of statutory construction, penal or otherwise. The Prothonotary of the New South Wales Supreme Court filed a summons seeking declarations that Mr Costello had been guilty of professional misconduct as a barrister and should be struck off the roll of barristers. Particulars were given of 12 separate incidents. The report of the case does not disclose any factual details of these incidents, but a fair inference is that they all revolved around Mr Costello's manner of presenting cases in court. The joint majority judgment of Glass and Samuels JJA notes, at 203, that in most of the 12 instances, the Prothonotary pleaded that Mr Costello's conduct was "calculated to interfere with the proper administration of justice". Their Honours said that they understood this to mean that the conduct had the effect of interfering with justice, not that Mr Costello intended his conduct to have that effect. Their Honours noted that the issue was whether there had been professional misconduct as it had been defined by the common law, and found that there had been such conduct on 5 of the 12 occasions. Their Honours said nothing about the need to establish that the interference with the administration of justice had to be by wrongful or improper means.
In his judgment, Priestly JA referred to the way in which the Prothonotary had pleaded the case against Mr Costello and said that the first step was to determine whether the conduct was calculated to interfere with the proper administration of justice. Taking a view of "calculated" different from that adopted by the other members of the court, his Honour said, at 208, that he would consider each incident, by reference to the Prothonotary's claims that what Mr Costello did was:
"(a) intended to interfere with the proper administration of justice, (b) professional misconduct, and (c) illustrative of Mr Costello's unfitness to remain a barrister."
In that context, his Honour went on to say that his understanding of the phrase "interference with the proper administration of justice" denoted "doing of something which, if successful, would bring about consequences in the working of the system of justice in this State by improper means" [emphasis added]. By way of illustration, his Honour referred to such matters as bribing witnesses. He then discussed the proposition that not all interruptions and delays to litigation amounted to an interference with the proper administration of justice, noting that the courtroom is a place where conflicts of many kinds take place and unnecessary objections are sometimes taken, but nobody considers such matters to be interferences with the administration of justice. At 209 his Honour concluded by saying:
"Whether behaviour in court goes so far beyond a tolerable degree of heat and conflict as to justify the description of interference with the proper administration of justice will be a question of fact in each case."
I find Costello's case to be of no assistance, principally because Priestley JA was not considering a question of statutory interpretation. Secondly, his Honour's conclusion that the Prothonotary's claim was that Mr Costello intended to interfere with the proper administration of justice is at odds with the majority judgment. Thirdly, his discussion and conclusion with respect to the issue of improper means was principally directed to the proposition that lawful conduct such as taking objections or asking questions may be done in such a way that it warrants the description of an interference with the due administration of justice and therefore is a contempt of court. Although it is understandable given the facts in Costello's case that Priestley JA approached his task by reference to whether Mr Costello's conduct as a barrister in court was so extreme that it warranted the description improper, I do not read his reasons for judgment as a statement of law that an interference with the due administration of justice will only amount to a contempt if such interference is by improper or unlawful means. It is well established that lawful and proper conduct, such as publishing an article in the newspaper or broadcasting on the radio, can constitute a contempt if the publication or broadcast was calculated, in the sense that viewed objectively, it tended to interfere with the course of justice. See T v Oldham's Press Ltd; Ex parte Attorney-General [1957] 1 QB 73; Hinch v Attorney-General (Vict) (1987) 164 CLR 15. Any conduct tending to interfere with the administration of justice in a court of record may constitute a contempt of court. It is impossible to precisely define the content of contempt of court, just as it is impossible to define the content of contempt of parliament. See Attorney-General v Times Newspapers Ltd [1974] AC 273.
Mr Porter submitted that his argument based on the judgment of Priestly JA in Costello's case received support from the High Court in Meissnerv R (1995) 184 CLR 132. Meissner concerned the common law offence of attempting to pervert the course of justice, the content of which was described in the joint judgment at 140 – 141 in these terms:
"A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. R v Vreones [1891] 1 QB 360 at 369; R v Rogerson (1992) 174 CLR 268 at 275-276, 279, 297. Attempting to pervert the course of justice is a substantive offence. R v Machin [1980] 1 WLR 763 at 766-767; [1980] 3 All ER 151 at 153-154; (1980) 71 Cr App R 166 at 170; Rogerson (1992) 174 CLR 268 at 279, 297. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive. Rogerson (1992) 174 CLR 268 at 277, 280, 298."
Mr Porter claimed entitlement to pray in aid Meissner because the offence of attempting to pervert the course of justice was a contempt of court and as the provenance of the Code, s69, was probably a contempt of Parliament, principles governing attempting to pervert the course of justice could, and should, be applied to the interpretation of the Code, s69.
The joint judgment noted the elements of the crime at 141 to be:
·conduct that has a tendency to pervert the course of justice; and
·an intent that the course of justice be perverted.
I interpolate here that no submissions were advanced with respect to the proposition that the act proscribed by s69 must be one that is capable of causing, or one that has a tendency to cause, the relevant interference, perhaps because there is no issue about that.
Mr Porter submitted that Meissner was authority for the proposition that attempting to pervert the course of justice required proof of impropriety, either as a means or as an outcome. Thus, the joint judgment held at 143, that any conduct intended to intimidate a person into pleading guilty was an attempt to pervert the course of justice, even if the intimidator honestly believed the person to be guilty, because the means, intimidation, is wrongful or improper. On the other hand, reasoned argument to persuade a person to plead guilty is not improper conduct and cannot give rise to an attempt to pervert the course of justice. At 158 Dawson J said:
"Whatever the means used, any attempt to induce a witness to give false evidence on oath or to refrain from speaking the truth must amount to an attempt to pervert the course of justice for then the end is improper. R v Toney [1993] 1 WLR 364 at 370; [1993] 2 All ER 409 at 414."
Thus, the submission was that because the common law offence of attempting to pervert the course of justice required proof of either improper means to interfere with the course of justice, or proof of an improper interference with the course of justice, even one caused by legitimate means, the Code, s69, should carry the same interpretation.
I do not accept that submission. It is a long bow to draw. In Meissner, the High Court gave no thought to, nor had any occasions to give thought to, the principles governing statutory interpretation to which I have referred. Further, even assuming it is appropriate to transfer the principles in Meissner to the crime of interfering with an executive officer, an ordinary reading of the provisions of s69 lead to the conclusion that Parliament intended that any act, proper or improper, if done with the prescribed intention, produces a result that the section deems to be improper or unlawful.
Turning to the context in which the Code, s69, is enacted, Ch7, comprises five crimes, all of which are concerned with the interference with the Executive or the Legislature. Sections 69 and 70(1) both proscribe interference with the "free exercise" of duties or authorities. Section 70(2) refers (inter alia) to "exercise of duty or authority". Section 69 concerns the free exercise of the duties or authorities of the Governor, a member of the Executive Council and a Minister of the Crown. Section 70(1) concerns the free exercise of the duties or authorities of either House of Parliament or a Member of either House. In s70(1), the Parliament enacted that interference with the free exercise of the duties or authorities of either House or a Member of either House, only attracts criminal sanction if such interference is "by force or fraud or by threats or intimidation of any kind". It is significant that in the immediately preceding section, the Parliament enacted that any act that was intended to interfere with the free exercise of the authority or duty of the Governor, any member of the Executive Council or a Minister, attracted criminal sanction. A comparison between the words of ss69 and 70(1) leads to the conclusion that the Parliament deliberately made any act done with the intention specified in s69 criminally culpable regardless of whether the means were wrongful or improper. Had Parliament intended otherwise, it is likely it would have qualified the word "interfere" in s69 as it expressly did when it enacted like crimes in s70(1) and (2).
It seems to me that the foregoing analysis of ss69 and 70, and the application of the principles of statutory construction to which I have referred, tell against the insertion of any words such as "wrongfully" or "improperly" to qualify the words, "interferes with the free exercise …".
The remaining two sections in Ch7 enact crimes with respect to receiving and offering bribes by or to a Member of Parliament and in consequence were enacted in different terms.
It is not a crime to do an act that interferes with the free exercise of a Minister's duty or authority. It is a crime to do an act that the actor intends will interfere with the free exercise of that duty or authority. Criminality is attracted because the intention accompanying the act is wrong or improper. It might reasonably be thought that doing any act with the intention of interfering with the free exercise of a Minister's authority or duty should attract criminal sanction, even if the means of interference was neither wrong nor improper.
On behalf of the accused it was urged upon me that unless "interfere", as enacted in the Code, s69, was construed to mean "wrongfully interfere" or "improperly interfere", the result would be unworkable. In his written submissions, Mr Porter developed this argument in the following terms:
"29The improbability or inconvenience of the result of a particular construction is a weighty factor. The Crown's interpretation of s69 criminalises a very broad range of otherwise innocent and appropriate executive action, including any government contract. Further, looking more broadly, such an interpretation would make criminal, most 'political lobbying' from a wide range of interest groups and individuals, but particularly as it occurs in the commercial context.
Footnote - Common issues are funding and infrastructure, endorsements, licensing, development and other approvals, and access to State natural resources.
30 A clear example of the grave consequences created by the Crown's contended literal interpretation, is one analogous to the present case. It is commonly known that the Executive has a long standing practice of requiring persons who have been appointed to statutory offices for indefinite terms under the relevant statute to sign a service agreement. Such service agreements very often make provision for payments to the appointee in the event of early termination by the Minister, or otherwise govern the circumstances of termination. Such agreements 'interfere' with the future exercise of the Minister's discretion in that they hinder or impede the right to terminate, particularly given that the Acts Interpretation Act, s21(1) provides that where a power is conferred to make any appointment to an office, that power includes a power to suspend or remove.
Footnote - These are large in number. Examples include the Directors of Ambulance Services, Building Control, Environmental Management, Gas, Housing, Inland Fisheries, Public Health, Racing, and such offices as various Tribunal chairpersons, the Health Complaints Commissioner, the State Archivist."
I do not accept that a failure to qualify the word "interfere" with the adverbs "wrongfully" and/or "improperly" will result in improbabilities or inconvenience, nor that it would criminalise a broad range of otherwise innocent and appropriate executive action. I am quite unpersuaded that "lobbying" a Minister to take a particular course of action would constitute an interference with the free exercise of a Minister's duty or authority. At the end of any "lobbying", a Minister remains completely free to exercise his or her duty or authority in whatever manner he or she thinks appropriate. Ordinarily, a lobbyist's intention is not to interfere with the free exercise of any duty or authority, but to persuade the Minister to exercise his duty or authority in a particular way or manner. As Mr Ellis argued, his submissions to me upon this hearing were put in an attempt to persuade me to exercise my judicial duty in a particular way, but could not be construed as an interference with the free exercise of that duty. The joint judgment in Meissnerv R (supra) noted at 143:
"Reasoned argument or advice does not involve the use of improper means and does not have the tendency to prevent the accused from making a free and voluntary choice concerning his or her plea to the charge."
With respect to par30 of Mr Porter's written submissions, there was no evidence before me of a "long standing practice" on the part of the Executive to require statutory office holders to enter into agreements that "very often" make provision for payments in the event of early termination by the Minister, nor do I accept that such a practice is commonly known. A footnote to Mr Porter's written submissions refers to a number of statutory holders, which I infer, were offered as examples of those who have entered into a service agreement which provides for payments in the event of early termination by the Minister.
Referring, also by way of example, to some of those office holders, I note that the Ambulance Service Act 1982, s5, gives the Minister a power to appoint a State Service officer or State Service employee to be the Director of Ambulance Services and by virtue of that section, the appointee is a corporation sole. Presumably, the Minister's authority with respect to the appointee is governed by the provisions of the State Service Act 2000.
The Health Complaints Act 1995, s5, provides that the Governor may appoint a Health Complaints Commissioner. Schedule 3 to the Act governs the terms of the appointment. Schedule 3, cl 1, provides that the Commissioner shall hold office for such term, not exceeding five years, as the instrument of appointment provides. The Schedule contains stringent provisions confining the Commissioner's suspension or removal from office to specified circumstances. The Act does not appear to confer on a Minister or the Governor any authority to terminate the Commissioner's appointment, other than in accordance with the statutory provisions.
The Archives Act 1983, s7, confers on the Minister a power to appoint a State Service officer or a State Service employee to be State Archivist and again, presumably, the Minister's authority with respect to the appointee is governed by the provisions of the State Service Act. I am unaware of the terms of any contract of employment of these statutory officeholders, and therefore unable to comment on whether any of those terms operate to interfere with the free exercise of a Minister's duty or authority, but in any event, the terms of individual contracts do not operate as a guide to the intention of Parliament when enacting legislation.
The reference in the written submissions to the Acts Interpretation Act, s21, does not assist the submissions made on behalf of the accused because the power to suspend or remove a statutory appointee that arises by virtue of that section, can only be exercised subject to a contrary intention appearing in the statute that authorised the making of the appointment in the first place. Thus, for example, the Acts Interpretation Act, s21, would not authorise the suspension or removal of the Health Complaints Commissioner contrary to the provisions of the Health Complaints Act, Sch3. I do not accept that a failure to qualify "interfere" with the words "wrongfully" or "improperly" will cause great inconvenience or criminalise a broad range of otherwise innocent and appropriate government action.
"Interfere" is a word of wide import as recourse to the Oxford English Dictionary (2002) demonstrates. For present purposes, that wide import should be constrained by virtue of the fact that it is enacted in a penal statute. The free exercise by a Minister of his or her duties or authorities will be interfered with, and attract criminal sanction, if the relevant act was done with the intention of preventing, obstructing, restricting, checking, hindering, hampering, delaying, impeding or affecting the course of that free exercise. The essence of the crime is an intention that the act done should actually impede the free exercise of the relevant duty or authority. Argument, persuasion or lobbying does not interfere with the free exercise of the duty or authority. Interference within the meaning of the Code, s69, only actually arises if the Minister's freedom is diminished in some manner. The Act proscribes only acts that are done with that intention.
Even if it is common practice to enter into service contracts that provide an entitlement to payment of money in the event of early termination, it does not follow that such a provision would necessarily interfere with the free exercise of a Minister's authority. If the sum were small, it is unlikely that the provision could be described as interfering with the free exercise of a Minister's authority. If the sum were large, a different construction of the provision might well be open.
It was put on behalf of the accused that many contracts entered into by a Minister for the supply of goods and services interfere with the free exercise of a ministerial duty or authority. There was no evidence of the terms of any such contracts and, in any event, the answer is only if the terms of the contract interfere, in the sense that I have expounded, with the free exercise of the Minister's discretion to enter into another contract. Thus, a contract with X to supply the government with computers over the ensuing five years does not interfere with the Minister's freedom to enter into a contract with Y to supply the government with the same equipment over the same period. Common sense would direct the Minister not to exercise his authority to do so, but his or her freedom to do so would not be interfered with unless the contract with X contained a provision similar to cl 9 in the agreement, or directly prohibited the Minister from contracting with another during the life of X's contract.
It was put to me by Mr Melick SC, counsel for Mr Nicholson, that unless "improper" or "unlawful" qualified "interfere" in s69, the grant of an exclusive gaming licence to one company would attract criminal sanction. The submission was untrammelled by reference to any particular person, company or statute. However, it is common knowledge in the Tasmania community that an exclusive gaming licence has been granted to a group of companies. If counsel was alluding to this arrangement, I note that there is an agreement dated 18 March 2003 and made between a Minister of the Crown in right of the State of Tasmania and a group of three companies, conferring exclusive gaming rights on a group of hotels for 15 years. However, this agreement was given force of law by the Gaming Control Act 1993 (as amended by Act No 59 of 2003), s5 of which enacted that the terms of the agreement had "force of law as if those provisions were enacted by this Act".
Severance
The Code, s326(3), specifies the circumstances in which the order sought by the accused that the charge of committing a crime contrary to the Code, s69, be tried separately from the trial of the charge of conspiring to commit that crime, might be made. The subsection provides:
"(3) Where, before trial or at any stage of the trial, it appears to a judge that an accused person may be prejudiced or embarrassed in his defence by reason of being charged with more than one crime in the same indictment, or that for any other reason it is desirable to direct that he should be tried separately for any one or more crimes charged in the indictment, the judge may order a separate trial of any count or counts in such indictment."
There have been many expressions of judicial disapproval of the practice of joining a count of committing a crime with a count of conspiracy to commit that crime. One succinct, but comprehensive, expression of such disapproval appears in the judgment of McPherson J in R v Moore [1988] 1 Qd R 252 at 261 – 262:
"The disadvantages of conspiracy charges, and the dangers of injustice inherent in combining such a charge in one indictment with charges of substantive offences, have frequently been stressed both here and in England. One of the principal risks of injustice springs from the difficulties of identifying for the jury the evidence admissible only on the count of conspiracy and of effectively isolating it from the substantive offences being tried. The distinction between statements admissible as original evidence to prove conspiracy, but inadmissible as hearsay evidence to prove the truth of facts asserted in those statements, is one which, in my experience is seldom capable of being adequately explained to jurors encountering such conceptions for the first time. The consequent tendency of conspiracy counts to cause unfairness to the accused, and to increase the length and complexity of trials involving charges of substantive offences, has often been recognised. The practice of including such counts is deprecated in many judicial observations of high authority: see, for example, R v Griffiths [1966] 1 QB 589, 593-594; R v Jones (1974) Cr App R 120, 124. 'Generally speaking', said the High Court in R v Hoar (1981) 148 CLR 32, 38:
'it is undesirable that conspiracy should be charged when a substantive offence has been committed and there is a sufficient and effective charge that this offence has been committed'."
Reliance on the passage cited from R v Hoar should bear in mind that the High Court was there dealing with an appeal against sentence for conspiring to commit a fisheries offence. The joint judgment refers to the fact that the court was told that it was intended to try the respondent for fisheries offences based on the same transactions as those involved in the conspiracy charge. At 38, the joint judgment said that this course of proceeding caused great difficulty in determining what was the appropriate penalty and it was in that context that the remarks were made that were cited by McPherson J in Moore.
McPherson J's views were cited with approval in R v Pollitt [1991] 1 VR 299 at 300, but in that case the situation was governed by the Crimes Act 1958 (Vic), s372(3A), which expressly provided that where a substantive count is joined with a conspiracy count to commit the substantive crime, the count should be severed "unless [the court] is of the opinion that to try those counts together would be in the interests of justice …".
The joint trial of the charge of interfering with an executive officer and the charge of conspiring to commit that crime may "prejudice or embarrass" the defence of any one or more of the accused, especially as Mr Nicholson is unlikely to be tried for the substantive offence. Embarrassment or prejudice may arise out of the complexities of the admissibility of evidence on each trial of each accused and associated difficulties of explaining those complexities to the jury, partly by reason of the so called co-conspirator's rule, expounded by the High Court in Ahern v R (1988) 165 CLR 87 and enacted in the Evidence Act 2001, s57(2). However, as Somers J said in R v Humphries [1982] 1 NZLR 353 at 355, "whether severance will be ordered depends on the requirements of justice in the particular case".
There is no rule of law that requires a conspiracy count to be severed from a count that charges commission of the crime in respect of which it is alleged there was the conspiracy. Neither counsel for an accused, nor counsel for the Crown, identified any of the evidence to be led at the trial, other than the agreement and the admitted facts that it was signed by Mr White and Mr Green, and that the latter was then a Minister of the Crown. I do not know what overt acts will be relied upon by the Crown to prove the charge of conspiracy. I do know that a request, made on behalf of Mr White, to "specify the physical acts by which it is alleged the defendant formed the agreement to commit the crime" was met with the answer from the Crown, "This is a request for evidence, not particulars". Whether this was an appropriate response is not presently before me for determination. (Cf The King v Weaver (1931) 45 CLR 321 at 351; Mickelberg v R [1984] WAR 191 at 193; R v Partridge (1930) 47 WN (NSW) 173 at 174.)
In result, there is no material presently before me to enable me to determine whether or not any of the accused are likely to be prejudiced or embarrassed by reason of being jointly charged with one count of interfering with an executive officer and one count of conspiring to interfere with an executive officer.
Conclusion
The determination that I was asked to make is couched in these terms:
"The question is whether the crime [enacted by the Code, s69] requires proof of wrongful or improper conduct. Putting it another way, the question is whether 'an act intended to interfere' is to be interpreted as involving mala fides or moral turpitude."
The answer to the question is "no".
The application for severance is refused but, of course, this does not prevent a later application for the same order being made, as the Code, s326(3), empowers the Court to make an order for severance "before trial or at any stage of the trial".
2
17
1