Tasmania v SLS
[2008] TASSC 61
•20 October 2008
[2008] TASSC 61
CITATION: Tasmania v SLS [2008] TASSC 61
PARTIES: TASMANIA (STATE OF)
v
S, S L
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 135/2008
DELIVERED ON: 20 October 2008
(Ruling - 7 October 2008)
DELIVERED AT: Launceston
HEARING DATE: 6, 7 October 2008
JUDGMENT OF: Porter J
CATCHWORDS:
Criminal Law – Particular offences – Offences relating to the administration of justice – Other offences – Compounding a crime – Proper construction of the two limbs of the section – "Compounds or conceals a crime" – "Abstaining from, discontinuing or delaying a prosecution" – Second limb only relates to where prosecution commenced – Meaning of "compounds" and "conceals".
Criminal Code 1924 (Tas), s102(1).
R v Enslow (2003) 12 Tas R 200, not followed.
Aust Dig Criminal Law [316]
REPRESENTATION:
Counsel:
Crown: J P Ransom
Accused: S J N Brown
Solicitors:
Crown: Director of Public Prosecutions
Accused: Simon Brown
Judgment Number: [2008] TASSC 61
Number of paragraphs: 39
Serial No 61/2008
File No 135/2008
STATE OF TASMANIA v S L S
REASONS FOR JUDGMENT PORTER J
7 October 2008
Introduction
The accused was charged with compounding a crime, contrary to the Criminal Code, s102(1). That section provides as follows:
"102 — Compounding crimes
(1) Any person who solicits, receives, or obtains, or agrees to receive or obtain, any property or benefit of any kind for himself or any other person, as a consideration for any agreement or understanding that he will compound or conceal a crime, or will abstain from, discontinue, or delay a prosecution for a crime, is guilty of a crime.
Charge:
Compounding a crime."
The particulars of the charge as originally set out in the indictment were that the accused:
"… at … in Tasmania, on or about the 3rd of January 2007, received from [LEW] two hundred thousand dollars for herself or purportedly on behalf of her daughter [AB] as consideration for an agreement or understanding that [SLS] would abstain from or delay a prosecution for a crime, namely the indecent assault of [AB], by ensuring that her daughter, [AB], would not be permitted to make, or would not make, a complaint to police that she had been indecently assaulted by [LW]."
The accused pleaded not guilty and the jury was empanelled. In the absence of the jury the Crown made application to amend the particulars by adding the words "conceal a crime" after the words "abstain from or delay a prosecution for a crime, …". The application was opposed. In summary, the submission in opposition was that:
· "compound or conceal" conveyed but one concept;
· that concept was embodied in the meaning of the word "compound"; that is, the settlement or compromise of a crime by an agreement or understanding not to prosecute. (As will later appear, the common law meaning of compounding a felony was, in simple terms, an agreement for reward not to prosecute);
· the word "conceal" thus added nothing to what was meant by "compound or conceal";
· as the meaning of "compound" had subsumed within it the notion of "abstaining from a prosecution" which was already alleged in the indictment, the amendment was futile and for that reason the discretion to allow the amendment should not be exercised.
In the course of submissions I suggested that the objection to the amendment may be circumvented by the addition of the words "compound or conceal" at the relevant point in the particulars, and that issues as to the basis upon which any case was left to the jury could be dealt with at the close of the Crown case. Both counsel acceded to that suggestion and the amendment was made accordingly.
At the close of the Crown case, counsel for the accused submitted that the accused had no case to answer. I ruled against this submission and gave a summary of my reasons for so ruling. I said that in the limited time available to me, those reasons would be necessarily short, and that I may later publish more detailed reasons.
I now provide more comprehensive reasons, incorporated in which is the summary I provided at the time of the ruling.
The basic facts
The evidence at the close of the Crown case was capable of establishing the following matters to the satisfaction of the jury:
· In April 2006 LW, a family friend, went to stay with the accused and her family.
· On the evening of 2 January 2007, the accused's 14 year old daughter AB went to a neighbour's home to stay the night.
· As the accused had suspicions as to Mr W's conduct in relation to AB she asked the neighbour to inquire of AB if anything had been happening between her and Mr W.
· The neighbour asked AB if anyone had been touching her where they should not have, at which point AB started nodding her head and crying. The accused was then called to the neighbour's home.
· Some detail of what would constitute indecent assaults were revealed by AB, at which point the accused called the police and then returned to her home to confront Mr W.
· Mr W agreed that he had been "touching" AB and that he loved her. He was then told he had 15 minutes to pack his belongings and to leave. Whilst Mr W was packing his things, Constable Rodgers arrived.
· That in the period before Constable Rodgers arrived there was a discussion between the accused and Mr W during which she told him that he could write out a cheque for $200,000. Mr W initially refused but when he saw Constable Rodgers arrive in the police vehicle, he wrote out the cheque and handed it to the accused.
· The accused then went to Constable Rodgers and told him that he was not needed, that "they no longer required police involvement …;" that "they might have sorted it out themselves".
· The accused would not subsequently make a "formal" complaint as was required by police to pursue the matter and did not, until 19 March 2007, make AB available for police interview.
· In an interview with police on 1 August 2007, the accused was asked why she did not "report the matter whilst police were there, formally make a statement about what she had seen and heard and what she wanted done". The accused answered "because he offered to give us the $200,000 if we didn't". She later agreed that the cheque was a determining factor in whether Mr W went with police or not.
The submission
The submission of no case to answer amounted to a re-statement and a development of the arguments which were put in relation to the amendment of the indictment. In addition to the matters which I have already outlined, counsel submitted that in relation to "compounding a crime", and "abstaining from or delaying a prosecution", both of which were alleged, there was no evidence that the accused was authorised to bring any proceedings for any sexual offences committed by Mr W. Counsel relied on R v Enslow (2003) 12 Tas R 200.
It was further submitted that in any event, there was no evidence upon which the jury could find that any benefit which the accused obtained, was as a consideration for any agreement or understanding of any nature. More simply put, the point asserted there was no evidence of an agreement or understanding.
Criminal Code, s102(1)
In R v Enslow (2003) 12 Tas R 200, Underwood J examined the nature of the offence created by the section. At 202 his Honour said:
"4 What is the offence created by the Code, s102? At the outset, it is important to note that the provisions of this section have remained unaltered since first enacted in 1924. The statutory provision was obviously based upon the common law offence of compounding a felony. This offence has ancient origins. It was first described as 'theft-bote'. See Hawkin's Pleas of the Crown, 73-74; Russell on Crimes, 5th ed, vol 1, 292. Theft-bote was committed when the party robbed not only knows the felon, but also takes his goods again, or other amends, upon an agreement not to prosecute. It might be distinguished from the common law offence of misprision of a felony where a man, instead of performing his duty and giving information to the public authorities of a crime that he knows has been committed, conceals his knowledge. See R v Crimmins [1959] VR 270 at 272-273; cf Williams v Bayley (1866) LR 1 HL 200 at 220.
5 At common law, it was not an offence to abstain from prosecuting simpliciter, nor was it an offence to receive back the stolen goods. 'It was the agreement not to prosecute which constituted the offence and it is immaterial whether there was or was not a subsequent failure to prosecute', per Halsbury's Laws of England, 2nd ed, vol 9, par581. The elements in the offence of compounding a felony were discussed in some detail in R v Burgess (1886) 16 QBD 141. In that case, Coleridge CJ pointed out, at 146-147, that it was the agreement itself that created the offence and, notwithstanding any apparent limitations on the early offence of theft-bote, compounding a felony could be committed by someone other than the owner of the goods or, I infer, the victim of the crime. See also Whitmore v Farley (1881) 45 LT 99.
6 It will be seen that the enactment of s102 considerably expanded the common law offence of compounding a felony. The section provides not only for the case of obtaining a benefit in return for not prosecuting, but also for a case of soliciting, receiving or obtaining, a benefit. The agreement aspect of the common law offence of compounding a felony is also broadened to include not only an agreement not to prosecute, but also an 'understanding' not to prosecute. The common law offence is further extended to include an agreement or understanding to discontinue or delay prosecuting as well as to abstain from prosecuting. These provisions widen the common law offence which only embraced an agreement not to prosecute. In addition, the section includes the common law offence of misdemeanour of misprision of a felony, but only in the event of misprision in return for soliciting or receiving or obtaining a benefit. However, the concept of prosecution remained unaffected by the enactment of s102."
His Honour was considering a submission of no case to answer. The case against the accused was that he had solicited a benefit in consideration of him agreeing to abstain from prosecuting crimes of unlawful sexual intercourse with a young persons and/or indecent assault committed on him. The submission was that as the offences named in the particulars were indictable offences, the accused had no power to abstain from prosecuting as he had no power to institute or continue the prosecution of those offences in the first place. Of course, in the present case, counsel for the accused makes the same submissions as those made in Enslow's case.
The relevant provisions as to bringing prosecutions for indictable offences are to be found in the Justices Act 1959, s27(3), and the Code, s420. The Justices Act provides as follows:
"(3) A complaint of a breach of the Criminal Code may not be made by a person other than —
(a)a public officer;
(b)a person authorized or directed to make the complaint by the Crown or the Commonwealth; or
(c)an officer of a municipality or another statutory public or local authority —
acting in good faith in his official capacity, without the consent of the Director of Public Prosecutions, who shall satisfy himself by affidavit, statutory declaration, or otherwise that the complainant is acting in good faith and on reasonable grounds."
Section 420 of the Code is in the following terms:
"420 — Private prosecutions
(1) Any person may, by leave of the Supreme Court, file an indictment against any other person for any crime alleged to have been committed by such other person.
(2) Leave to file any such indictment shall be granted upon such terms and conditions as the said Court in any case for the purpose of securing the substantial ends of justice thinks fit to direct.
(3) Every such indictment shall be endorsed with the words 'Filed by leave of the Supreme Court of Tasmania', and with the name of the person prosecuting the same."
In R v Enslow at 203, Underwood J, having set out these provisions, the basis of the submission and the nature of the offence itself, continued:
"7 With respect to the submission put by Mr Crotty on behalf of the accused, it must be noted that at the time the Code, s102, was first enacted, the relevant procedure in the Magistrates Court was governed by the Justices Procedure Act 1919, s23. That section encompassed both simple and indictable offences and provided:
'Proceedings before justices shall be commenced by a complaint which may be made or laid by the complainant in person, or by his counsel or solicitor or other person authorised in that behalf.'
8 That section was substantially re-enacted by the Justices Act, s27. It is consistent with the common law. It remained unaltered until the enactment of the Justices Act 1974, s27. The provisions of that enactment remain in force today and are set out above. However, in 1974 no corresponding change was made to the Code, s102. At the time that section was enacted, any person could lay a complaint for a criminal offence.
9 The foregoing historical excursion leads me to the conclusion that the reference to abstaining from a prosecution in the Code, s102, means the abstaining from the prosecution of a criminal proceeding in a court of law. That was the position at common law. The legislators broadened the concept of the common law offence, but retained the use of the word 'prosecution'. I see no warrant for construing the section otherwise.
10 That being so, a nice question arises with respect to impossibility. Can it be said that the accused abstained from doing something that it was legally impossible for him to do? This question raises some difficult jurisprudential issues that fortunately do not have to be resolved …".
His Honour concluded that although there was evidence from which the jury could find that the accused solicited a benefit for an agreement not to report the crimes to the police and perhaps not give evidence against the person alleged to have committed the crimes, there was no evidence from which the jury could be satisfied that the accused solicited a benefit for an agreement or understanding "that he would abstain from commencing or bringing or continuing a criminal proceedings in a court" [sic].
Criminal Code, s102(1) — general construction
The first question is the general construction of the section. Even ignoring the potential impact of the provisions of the Justices Act, s27(3), as amended in 1974, and the Code, s420, there are a number of difficulties in the interpretation of the section.
The object of the phrase "will compound or conceal", is "a crime", whilst the object of the phrase "will abstain from .. (etc)" is "a prosecution for a crime" In my view, as a broad base from which to start, the words "will compound or conceal a crime" should be thus considered as one limb, the second limb being constituted by the words, "will abstain from, discontinue or delay a prosecution for a crime". I will continue to call these the first and second limbs respectively. This division seems to have been accepted in argument and is the way in which the Queensland equivalent, (Criminal Code (Qld), s133) is treated by the authors of Carter's Criminal Law of Queensland, 17th ed, at 242, as shown by the following:
"Elements of offences The accused:
(1) asks, receives, obtains, or agrees or attempts to receive or obtain;
(2) any property or benefit of any kind;
(3) for the person or any other person;
(4) upon any agreement that the person will
(a) compound or conceal a crime; or
(b) will [sic] abstain from, discontinue or delay a prosecution for a crime; or
(c) …".
The roles of the two limbs
The next question is the inter-relationship between the two limbs, in the sense of what role each limb plays. For the reasons which follow, in my opinion, the "or" in between the two limbs, is truly disjunctive, and the two limbs deal with two quite different factual situations. The first limb relates to a time before there is any prosecution, whilst the second limb deals with the situation where a prosecution has been commenced.
In relation to the first limb, as a matter of construction I think it must be correct that the Code, s102, details by specific words, much of what was meant by the common law term of "compounding" a felony. Further, as stated in Enslow's case at 203, the section expands on that concept; see Vallance v R (1961) 108 CLR 56 per Windeyer J at 74. The requirements for (inter alia) the receipt of property or a benefit and the need for an agreement or understanding are spelt out. In the first limb then, the meaning properly ascribed to "compound", although it involves some repetition of what is already spelt out and subject to what I will later say, must be a settlement or compromise involving an agreement or understanding not to prosecute. Next, again as stated in Enslow's case at 203 par[6], the broad concept of the term "conceal" is a reflection of the common law offence of misprision of felony, subject to the added requirement of consideration (sought or obtained) for an agreement or understanding to conceal.
What was involved in the common law offence of compounding a felony is set out in Stephen's Digest of Criminal Law, 9th ed at 157. The offence was described as committed by a person:
"… who in respect of any valuable consideration enters into an agreement not to prosecute any person for felony or to show favour to any person in any such prosecution." (emphasis added)
In Whitmore v Fairley (1881) 45 LT 99 at 101, Lush LJ noted that an agreement:
"… by which a prosecutor in consideration of a private benefit has consented to compound or withdraw from a charge of felony is one which on account of its illegality a court will not enforce." (emphasis added)
As to the second limb, there are internal difficulties of construction within the limb itself. The discontinuance of a prosecution plainly contemplates that one is existing. This may not be so in the case of "abstain" or "delay", and so those aspects are ambiguous. One can abstain from, or delay, a prosecution, in the sense of an intended or future prosecution. At the same time however, the words readily permit the meaning of an existing prosecution.
To read "abstain from a prosecution" in the second limb as abstaining from bringing a prosecution, gives rise to a complete tautology when put alongside the first part of the first limb; that is, "compound a crime". Such a construction is one which is to be avoided. One of the principal meanings of "abstain", according to the Shorter Oxford Dictionary is "to keep or withhold oneself from"; for example to abstain from voting. This can be properly applied to the notion of an existing prosecution, even where the person is not the person who has the ultimate control over how the prosecution is to be conducted.
In R v Enslow, as I have noted, the allegations against the accused were that he solicited a benefit in consideration of agreeing to abstain from prosecuting certain crimes. It would seem that what I have described as the second limb was utilised. I am conscious that my conclusions as to the general construction of the section are at odds with the way in which Underwood J approached the issue in Enslow's case. In that case, it seems to have been assumed that the second limb properly applied to the facts, but the particular point of construction was not argued. It may be inferred that his Honour accepted that the second limb of "abstaining from a prosecution", applied to agreements or understandings not to prosecute. To the extent that it was so held, I have respectfully reached the view that the decision was incorrect.
The concepts in the first limb
"Compound"
That then brings me to the meaning to be given to the concept of "compound", in s102(1), in light of the Justices Act, s27(3), and the Code, s420. The usual description of the common law offence of compounding a felony refers to an "agreement not to prosecute" used in the sense of the person himself or herself not commencing a prosecution. I observe before proceeding, that I agree that the word "prosecution" when used in relation to "compound", means prosecution of a criminal proceeding in a court of law, as Underwood J held in Enslow's case.
In the limited time which was available to me, I could find no direct authority for the proposition that the common law offence extended to agreements not to do anything to procure or bring about the prosecution of the person who had committed the crime. The highest at which it is put appears in R v Crimmins [1959] VR 270 at 272. In a joint judgment, the Full Court (Herring CJ, O'Bryan and Dean JJ) referred to a dictum of Lord Westbury in Williams v Bailey [1866] LR 1 HL 200 at 202 and continued:
"His lordship was there dealing with a case where certain bankers made use of bills which they knew to be forged, to extort from the father of the forger a security for which he was not liable, they giving up the bills so as to prevent the possibility of a prosecution for the forgeries. This was seem to have been the case of compounding a felony …
The bankers virtually agreed for a reward with the father of the forger to protect the forger from prosecution. By agreeing to hand over the forged bills to the father, they intended to prevent a prosecution or at any rate to render the possibility of a prosecution so remote that it could hardly be expected to succeed. The essential element in the offence of compounding a felony is the agreement not to prosecute for reward, active assistance to the felon is contemplated on the one hand and also a reward for the compounder." [My emphasis.]
A number of additional points can be made. It was not, of course, exclusively the domain of the private citizen to mount prosecutions. Moreover, in the early 20th century when the Code was enacted, it is likely that the bringing of prosecutions more usually fell to the proper authorities.
The second point is that the evil to which the offence was directed was the bargaining away of prosecutions in which the public had an interest; see Kerridge v Simmons (1906) 4 CLR 253. That being so, this provides support for the notion that a person who agrees not to prosecute personally and not to do anything to bring about the prosecution by the authorities, would be guilty of the common law offence. This approach has a hint of further support in the way in which the charge was framed, as considered in R v Burgess (1885) 16 QBD 141 at 142. The relevant terms were:
"[The prisoner] … did compound the said felony … and did then exact, take, receive, and have from the said Arthur Boughey the sum of 28s for and as a reward for compounding the said felony, and desisting from prosecuting the said Arthur Boughey and for procuring that the said … should not be prosecuted for the felony aforesaid …". (my emphasis)
The third point is that further and in any event, even if I am wrong as to the common law, relevant principles of statutory construction would, in my view, operate to give to the notion of "compound", the meaning I have outlined. Parliament very obviously had the Code, s420, in mind when s102 was passed. That provides some colour as to what is involved in the notion of compounding. Additionally, it would be a completely unreasonable outcome to conclude that the 1974 amendments to the Justices Act effected an implied repeal of part of s102. Though it is highly unlikely as a matter of fact, Parliament is to be presumed to have had s102 in mind when it passed the amendments to the Justices Act in 1974. Some relevant room for the operation of the Code, s102, as to the operation of "compounding" must then be found.
What that means, in my view, is that the notion of "compounding", in s102 extends to an agreement or understanding not to do anything to bring about a prosecution; that is, initiating a prosecution in the way provided for in the relevant sections, or to do anything to bring it about by the proper authorities. To put it another way, it extends to agreements or understandings not to instigate a prosecution, in any way. Again, this conclusion is contrary to the approach taken by Underwood J in R v Enslow. Although his Honour did not find it necessary to resolve them, the ultimate jurisprudential issues as to impossibility which were identified do not, in my respectful opinion, arise.
"Conceal"
Turning then to the word, "conceal", I think this is at least to be interpreted consistently with the concept as it was known for the common law offence of misprision of felony. It should also be given any wider meaning consistent with the statutory context in which it appears. In Kenny's Outlines of Criminal Law, 19th ed at 406, the duty giving rise to the offence of misprision was said to extend to disclosure of all material facts of which the person had knowledge. The concept of misprision of felony was discussed in R v Crimmins. At 271, the Court set out the directions of the trial judge in that case as follows:
"There are three things which the Crown has to establish to your satisfaction in order that you may bring.
The first thing is that you have to be satisfied that a felony was in fact committed by someone. The next thing you have to be satisfied is that he, the prisoner, knew that a felony had been committed. The third thing is that he, knowing that a felony had been committed, concealed the facts in relation thereto."
The Court found no flaw in this direction and, at 274, said:
"[A citizen] fails in his duty [to disclose a felony of which he had knowledge] if he fails to make known to the authorities facts that he knows of a felony that might lead to the apprehension of the felon. The name of the felon and the place where the felony took place were known to Crimmins of his own admission. By concealing those facts, Crimmins, though he had disclosed the fact that he had been feloniously wounded, was concealing the felony as effectually as if he had refused to give information as to the way in which he came by his wounds".
In Sykes v Director of Public Prosecutions [1962] AC 528 at 563, R v Crimmins was cited by Lord Denning as authority for the proposition that the duty of disclosure related to all known "material facts".
In R v Lovegrove (1983) 33 SASR 332 at 336, Cox J said:
"The policy that underlies the existence of a crime of misprision of felony is that serious crimes should be discovered to the authorities, not regarded as private matter that may acceptably be kept from public view. … A person who knows of the existence of a felony must tell the authorities what he knows about both the crime and the criminal. Of course, he must know, and realise that he knows, something worth telling — something that would materially assist the police in identifying a crime and tracking down the person responsible. He is not obliged to tell the police what they already know, or what he believes they already know. However, he is not absolved from his duty to tell merely because his knowledge of the crime may not be complete … in those circumstances he must disclose what he does know and it may be that the police will be able to do the rest."
In my view, it follows that the obligation of disclosure extends to the revelation of the existence of the crime and the substance of what is known of it in all its respects. Where there is a course of criminal conduct, as distinct from a single crime, the obligation would extend to what is known of the circumstances and the nature and extent of that course of conduct.
The facts of this case raise the question of some knowledge of the commission of a crime on the part of an accused person, with further detail known by a person over whom the accused purported to exercise some control. As a matter of principle, and consistent with what I see to be the meaning of the word "conceal", I would hold that where criminal conduct is known and the source of the greater detail is under the direct and immediate control of the accused, concealment, within the meaning of s102, may extend to the failure to exercise that control so as to ensure that the detail is provided. In this case, it was a question of fact for the jury as to the extent of any control of the accused over her daughter's actions, and what may have been the outcome of the exercise of that control.
Finally, as to the first limb, compounding may, but not necessarily, involve concealment. There may be some overlap between the two and that perhaps demonstrates why they exist together in the one limb. To reach a private arrangement for reward not to prosecute most usually would involve a concealment from the authorities. On the other hand, concealment under s102(1) may mean more than I have indicated, but it is not necessary for the purpose of this case to decide how far the concept extends.
Conclusions
For the reasons I have given, I do not believe that the second limb can apply in this case and to the extent that it might be necessary, I would formally rule that the accused has no case to answer in relation to the allegation of abstaining from, or delaying a prosecution for a crime.
As to the factual situation, in my opinion there was evidence upon which the jury, properly directed, could convict of compounding or concealing a crime, in the senses which I have outlined. It is neither necessary nor desirable for me to detail that evidence. In any event, it has largely, if not totally, been canvassed in argument.
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