Tasmania v Thompson
[2022] TASSC 52
•1 February 2021
[2022] TASSC 52
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Tasmania v Thompson [2022] TASSC 52 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| THOMPSON, Jeffrey Ian | |
| FILE NO: | 374/2017 |
| DELIVERED ON: | 1 February 2021 |
| PUBLISHED ON: | 23 August 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 14 August 2020 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Criminal Law – Particular offences – Offences relating to the administration of justice – Perverting the course of justice – Whether an objective tendency to pervert the course of justice is an element of the crime
of perverting justice.
Criminal Code 1924 (Tas), s 105.
Johnston v The Queen [2019] NSWCCA 108, followed and explained.
R v Arnol [1980] Tas R 222; Hutt, Hutt and Bell v The Queen [1989] TASSC 27; Clarke v Tasmania [2013]
TASCCA 11, 24 Tas R 384; Pickett v Western Australia [2020] HCA 20, 94 ALJR 629, cited.
Aust Dig Criminal Law [2558]
REPRESENTATION:
Counsel:
State: D Coates SC, E Bill Accused: D Edwardson QC, F Merenda
Solicitors:
State: Director of Public Prosecutions Accused: Munro and Associates
| Judgment Number: | [2022] TASSC 52 |
| Number of paragraphs: | 16 |
Serial No 52/2022 File No 374/2017
STATE OF TASMANIA v JEFFREY IAN THOMPSON
| REASONS FOR RULING | BRETT J 1 February 2021 |
1 On 19 March 2020, I overruled an objection by the accused to the prosecution adducing certain pieces of evidence. The objection was based on the asserted application of s 119 of the Evidence Act 2001 to the evidence, a communication and a document, on the basis that the relevant evidence was subject to client legal privilege. A critical premise in the reasoning upon which my ruling was based was my conclusion that the crime of perverting justice, pursuant to s 105 of the Criminal Code does not require proof that the act which is said to constitute the crime has an objective tendency to pervert the course of justice. In arriving at that conclusion, I noted that the New South Wales Court of Criminal Appeal had come to a similar conclusion in respect of s 319 of the Crimes Act 1900 (NSW), a provision in terms identical to the Tasmanian Code, in the case of Johnston v The Queen [2019] NSWCCA 108.
2 The accused has sought to make further submissions on this question. Mr Merenda, junior counsel for the accused, submitted that the question had not been the subject of argument before me during the earlier hearing, and, accordingly, further submissions should be permitted as a matter of procedural fairness. This contention is not opposed by the prosecution. In any event, I regard an evidentiary ruling during the course of a trial as interlocutory in nature, and subject to review by the trial judge at any time. Of course, as a matter of practice, it would be unusual for a trial judge to alter a ruling in the absence of changed circumstances. However, I accept that the question of the elements of s 105, and the significance of the decision of Johnston, was not fully argued before me during the original hearing, and that it is the interests of justice that this occur. Accordingly I have permitted this further argument.
3 In my previous ruling, I observed that a plain and literal reading of s 105 reveals only two
elements:
1 the doing of an act or omission;
2 with intent in any way whatever to obstruct, prevent, pervert or defeat the due course of justice or the administration of the law.
4 I noted that this formulation of elements is consistent with comments of Slicer J in R v Collins [1993] TASSC 135 and Tasmania v Crane [2006] TASSC 82, 15 Tas R 432. It is also consistent with the conclusion reached in Johnston. Finally I observed that in R v Beckett [2015] HCA 38, 256 CLR 305, the High Court concluded that the element of objective tendency applied in respect of the crime of attempting to pervert the course of justice under the common law or under those statutory provisions which mirror the common law. I noted that the provisions of s 105 of the Tasmanian Code (and s 319 of the Crimes Act (NSW)) were in different terms to the statutory provisions referred to by the High Court. Finally, I noted that the High Court (in obiter) had observed that it was sufficient for a judge to instruct a jury in respect of s 319, in terms which include only the two elements which I concluded constitute the crime defined in s 105.
5 Mr Merenda makes the following submissions:
When s 105 is considered within the context of its legislative history, and the statutory structure of the Code generally, its meaning is consistent with those provisions which "mirror the common law" and should therefore be interpreted as incorporating into the Code, the common law offence
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of attempting to pervert the course of justice. Accordingly, proof of the objective tendency of the
act to pervert justice is an element of the crime.
Differences between the legislative history and statutory context of s 105 and s 319 lead to the
conclusion that Johnston should not be followed with respect to the construction of s 105.6 The argument which seems to underpin these propositions is that the words in s 105 "any act or omission done or made with intent" should be construed as simply meaning "attempt". The argument is that this construction follows as a matter of logic and plain English. The result, it is submitted, is that s 105 then amounts to no more than a statutory reformulation of the common law, and hence incorporates the relevant element.
7 I reject these submissions. The question of whether or not the words "any act or any omission done or made with intent" should be equated to the word "attempt", does not seem to me to have any substantial significance with respect to the construction of s 105. Even if this contention is correct, the plain meaning of the words of s 105 is without doubt or ambiguity. The natural meaning of that provision results in the two elements already noted, without inclusion of a further element of objective tendency. It should not be assumed that these words were intended to simply restate the common law and thereby incorporate the said element. In Clarke v Tasmania [2013] TASCCA 11, 24 Tas R 384, Wood J said at [66]-[68]:
"The proper course is to examine the language and to interpret the Code according to its natural meaning. It should not be presumed that it was intended to do no more than restate the existing law: Bank of England v Vagliano Bros [1891] AC 107 per the speech of Lord Herschell at 144. In Brennan v R (1936) 55 CLR 253 at 263, Dixon and Evatt JJ, referring to s8 of the Western Australian Code stated:
'But it 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).'
It may be justifiable to resort to the common law for the purpose of aiding in the construction of the Code, where the Code contains provisions of doubtful import or contains language which had well established meaning when the Code was enacted.
As stated by Windeyer J in Vallance v R (1961) 108 CLR 56 at 74–75, 'In some
places the Code states common law principles in words that have long been familiar… The Code uses many words and phrases that, when it was enacted, had well
established meanings: and "in construing an Act of Parliament it is a general rule …
that words must be taken in their in their legal sense unless a contrary intention appears".' However, if the text is clear, the common law is of no relevance: Stuart v R (1974) 134 CLR 426 per Gibbs J.
An example of reference to the common law for the purpose of determining the meaning of a word in s3 of the Code is Murray v R [1962] Tas SR 170. The common law was applied in considering the meaning of 'abets' which had acquired a technical meaning in the law prior to the passing of the Code: per Burbury CJ at 172, Gibson J at 189 and Crawford J at 195."
8 This question was recently discussed by the High Court, in the context of the construction of the Criminal Code (WA), in Pickett v Western Australia [2020] HCA 20, 94 ALJR 629. The plurality said:
"[22] The issue that divided the Court of Appeal in this case is an issue as to the proper construction and application of the Code. In Brennan v The King, Dixon and Evatt JJ, having observed that s 8 of the Code 'appears to be based in some respects' upon Sir Michael Foster's statement of the position under the common law, said:
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'But it 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.'
[23] In Stuart v The Queen, Gibbs J, with whom Menzies and Mason JJ agreed,
referred to this passage as stating the correct approach to the interpretation of a
section of the Criminal Code (Qld) ('the Code (Qld)'). Gibbs J went on to say:
'This passage does not mean that it is never necessary to resort to the common
law for the purpose of aiding in the construction of the Code – it may bejustifiable to turn back to the common law where the Code contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some such special ground: see Robinson v Canadian Pacific Railway Co, cited in R v Scarth. If the Code is to be thought of as "written on a palimpsest, with the old writing still discernible behind" (to use the expressive metaphor of Windeyer J in Vallance v The Queen), it should be remembered that the first duty of the interpreter of its provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance'." [Footnotes omitted.]
9 There is nothing of technical or doubtful meaning in the words used in s 105, nor is the wording reflective of those used in other statutes which "mirror the common law". The intention of the legislature is clearly exposed by the plain meaning of the words used in the provision.
10 Much of the argument before me focussed on the asserted interaction between the definition of an attempt to commit a crime in ss 2, and 105. In my view, this focus is misguided. The two provisions operate independently, and one does not assist in construing the other. In fact, to the extent that the legislative history of the development of the Code in Tasmania is relevant to this argument at all, it would suggest that a deliberate decision was made by the legislature when it included s 105 in the Code, to avoid any potential confusion arising from the use of the word "attempt". As the learned Director pointed out in his submissions, the Stephen's Code, upon which the Tasmanian Code was based, uses the word "attempt" in respect of both the heading and definition of the crime dealing with the perversion of justice. The final wording of s 105 avoids the use of that word. It can be inferred, therefore, that the choice of words was deliberate, and suggests that the crime defined in s 105 is intended to be complete when an act or omission is performed with the requisite intention. It is not to be regarded as an inchoate offence, which requires an objective result to provide it with the substance necessary to create criminal liability, as is the case with s 2 and also with the common law offence of attempting to pervert justice. The issue of remoteness between the culpable act and the intended outcome simply does not arise under the formulation chosen by Parliament, as reflected in s 105. Had the legislature intended that this connection with the outcome be a necessary element of the crime, it could easily have said so, either expressly as in the definition of an attempt in s 2, or by incorporation of the common law offence by appropriate wording. It clearly has not done so, and this Court should regard that as a deliberate choice by the legislature. The construction of s 105 according to its natural meaning leaves no room for the element of objective tendency, or any argument that the provision simply restates the common law.
11 I would reach this conclusion without reference to Johnston. However, it seems to me that Johnston is both correctly decided and provides persuasive support for the conclusion which I have reached in respect of s 105. Mr Merenda submitted that a significant contextual difference between the two provisions was that s 319 was introduced in 1990 in amendments designed to "rationalise and reform the law concerning offences involving interference with the course of justice". Prior to then, in New South Wales, "perversion of the course of justice", in various forms, was a common law offence: Johnston at [21]. Mr Merenda argues that the deliberate decision of Parliament to replace the common law offence with a differently formulated crime was apparent, and critical to the reasoning of Simpson
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AJA, who wrote the primary judgment, and with whom the other members of the Court, Johnson and RA Hulme JJ, agreed. He argues that this is a point of contextual distinction between the Tasmanian and New South Wales sections.
12 I disagree with this submission. Rather than being a point of distinction, the reasoning of Simpson AJA is apposite to the legislative history of s 105. Although the introduction of this provision in Tasmania occurred some 66 years earlier than the enactment of s 319 in New South Wales, it is apparent that the purpose of both provisions was to form part of the codification of the criminal law in respect of offences dealing with the perversion of the course of justice. There is no basis for distinction between them, having regard to the legislative history of each provision.
13 Mr Merenda also argues that a construction which does not include an element of objective tendency is capable of leading to absurd and unreasonable consequences. Again, I do not agree. Clearly, this was not the view of the Court of Criminal Appeal in Johnston, nor of the High Court in Beckett. Nor was it the view of Slicer J in Collins and Crane. In any event, the argument is inherently flawed. The clear intention of the provision is to criminalise acts or omissions committed with the requisite intention. There is no reason why that construction will lead to absurd or unreasonable consequences. The section simply increases the ambit of the operation of the provisions beyond that applicable to the common law offence, but that alone does not result in absurdity. It simply reflects a policy choice by the legislature. To demonstrate absurdity, Mr Merenda utilised an inherently absurd proposition. He suggested that if he picked up a glass, intending by that act to pervert the course of justice, then he would be guilty of the crime. Certainly, he would be on the plain meaning of s 105, but the absurdity of the proposition arises from the fact that the chosen combination of act and intent is patently unrealistic. In any event, as a practical consideration, proof of the requisite intent will almost certainly mean that the culpable act is of a nature which has the objective tendency required by the common law offence. This does not mean that as a matter of law such a tendency forms a necessary element of the offence defined in s 105. The provision is capable of operation in a perfectly rational and reasonable way without the inclusion of that element.
14 Finally, Mr Merenda submitted that when the combination of act and intent is used to create criminal liability in other provisions of the Code, the further element of objective consequence is incorporated into the construction of the provision. The only example proffered by counsel was s 3(1)(b) of the Code which provides that a party to a crime includes "every person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the crime". Mr Merenda submitted that it has been held that this provision includes a requirement that the prosecution prove, not only that the act or omission was performed with the requisite purpose, but that it also had the objective consequence that it did in fact aid or enable the commission of the crime.
15 However, this argument fails at the first hurdle. In Tasmania, s 3(1)(b) has never been interpreted or applied in the manner suggested, but rather has been interpreted according to its plain meaning, without the additional element of an objective consequence. This is clear from the discussion of the provision by Everett J in R v Arnol [1980] Tas R 222 and Underwood J, with whom Cox and Crawford JJ (as they then were) agreed in Hutt, Hutt and Bell v The Queen [1989] TASSC 27 at [60]. In this respect, s 3(1)(b) can be contrasted with s 3(1)(c) which of course has a different formulation. It follows that the construction of s 3(1)(b) which has been applied by the Tasmanian courts, in fact supports a construction of s 105 which does not include the element of objective tendency.
16 I am satisfied that the construction of s 105 as explained in my earlier decision is correct. So also was the consequent ruling. I confirm that the relevant objection is overruled.
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