Tasmania v Thompson

[2022] TASSC 51

[2022] TASSC 51

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Tasmania v Thompson [2022] TASSC 51
PARTIES:	STATE OF TASMANIA
v
THOMPSON, Jeffrey Ian
FILE NO:	374/2017
DELIVERED ON:	19 March 2020
PUBLISHED ON:	23 August 2022
DELIVERED AT:	Hobart
HEARING DATES:	31 October 2019
JUDGMENT OF:	Brett J
CATCHWORDS:

Evidence – Admissibility – Exclusions: Privileges – Client legal privilege – Loss of privilege – Misconduct.

Aust Dig Evidence [1183]

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), ss 105, 361A.
Evidence Act 2001 (Tas), ss 117, 119, 125.
R v Murray (1982) 75 Cr App R 58; Meissner v The Queen (1995) 184 CLR 132; Tasmania v Crane [2006]
TASSC 82; Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 129, applied.
R v Collins [1993] TASSC 135; R v Rogerson (1992) 174 CLR 268; R v Beckett [2015] HCA 38, 256 CLR
305, referred to.
May v O'Sullivan (1955) 92 CLR 654; Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157; Johnston
v The Queen [2019] NSWCCA 108, followed.

Aust Dig Criminal Law [2558]

REPRESENTATION:

Counsel:

Crown:	J Hartnett, E Bill
Accused	D Edwardson QC, F Merenda

Solicitors:

Crown:	Director of Public Prosecutions
Accused:	Munro and Associates

Judgment Number:	[2022] TASSC 51
Number of paragraphs:	38

Serial No 51/2022 File No 374/2017

STATE OF TASMANIA v JEFFREY IAN THOMPSON

REASONS FOR JUDGMENT BRETT J
19 March 2020

1             The indictment in this case charges the accused with two counts of perverting justice contrary to s 105 of the Criminal Code. He has pleaded not guilty to each charge, and, hence, the trial has commenced before me. A jury has not yet been empanelled.

2             The accused is, and was at all material times, a legal practitioner. It is common ground that in 2017, he performed some work intended to assist Susan Neill-Fraser in respect of her application for leave to lodge a second appeal against her conviction for murder. At the relevant time, the proceedings relating to that application were under way. The application was determined by me on 21 March 2019: see Neill-Fraser v Tasmania [2019] TASSC 10. It is a live issue as to whether Ms Neill-Fraser was the client of the accused with respect to that work, within the meaning of s 117 of the Evidence Act 2001.

3             The prosecution case relates to two acts performed by the accused during the course of that work. The prosecution alleges that each act was performed by him with intent to obstruct, prevent, pervert or defeat the due course of justice, or the administration of law, in particular, with respect to the said proceedings. The prosecution asserts that the accused thereby committed the crime of perverting justice upon the performance of each act.

4   The relevant alleged acts are:

(a)

On 16 June 2017, the accused met Stephen Gleeson at Risdon Prison and produced an array of photographs to him. Mr Gleeson was a proposed witness in respect of the application. The prosecution assert that the accused organised the meeting because he wanted Mr Gleeson to identify a particular man as a person whom Mr Gleeson had seen with another person, Meghan Vass, at a time and place relevant to the events surrounding the crime of which Ms Neill-Fraser had been convicted. The meeting between the accused and Mr Gleeson was covertly recorded by police, pursuant to warrant. During the meeting, the accused provided 2 photoboards containing the array to Mr Gleeson and asked him to identify the man he had seen with Ms Vass. The prosecution allege that the accused made gestures and statements intended to influence Mr Gleeson's identification of the relevant person from the photoboards. Mr Gleeson purported to identify a person and he signed both photoboards confirming that identification. The accused also endorsed the photoboards, verifying that Mr Gleeson had identified the person as the one who was with Ms Vass at the relevant time. The alleged attempts to influence the identification after production of the photoboards are the specific acts relied upon to constitute the crime alleged in count 1.

(b)

On 8 August 2017, Tasmania Police seized a number of documents from the accused's premises, pursuant to search warrant. One of those documents appears to be a draft affidavit by the accused, which the prosecution alleges had been prepared by him in the expectation that it would be used as evidence in respect of the said application. The affidavit is clearly in draft and not executed. It contained a description of the events in the meeting between the accused and Mr Gleeson at Risdon Prison, which the prosecution say give a false and misleading version of Mr Gleeson's purported identification of the person. In particular, the prosecution assert that the affidavit is intended to convey that the identification was made without any influence from the accused when, in actual fact, he had made gestures and said

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things with the intention of influencing the identification. The preparation of that part of the document dealing with the circumstances of the identification, is the act relied upon to constitute the crime alleged in count 2.

5             The fundamental allegation of the prosecution is that each act was intended to pervert the due course of justice, because it was intended to achieve and provide evidence of an identification that was relevant to the determination of the application, and that the accused intended would receive more weight than otherwise deserved, because the Court would act on a version of the circumstances of the identification which does not disclose the attempts by the accused to influence that identification.

6 The defence asserts that evidence which is critical to the prosecution case on each count is not able to be adduced in these proceedings having regard to s 119 of the Evidence Act. In particular, the defence asserts the following:

(a)

The conversation between the accused and Mr Gleeson during the meeting at Risdon Prison, including that relating to the identification, is a confidential communication that was made for the dominant purpose of Ms Neill-Fraser being provided with professional legal services in relation to the said application. Hence, the covert surveillance tape of the meeting, and any other evidence which will disclose the events or conversations at the meeting, may not be adduced at the trial because to do so will result in the disclosure of that communication.

(b)

The draft affidavit is a confidential document that was prepared by the accused for the same purpose. Hence, the affidavit and any other evidence which will disclose its contents, may not be adduced at the trial.

7 The prosecution submits that s 119 does not operate to prevent the said evidence being adduced for the following reasons:

(a)	The requisite lawyer/client relationship between the accused and Ms Neill-Fraser did not exist when he undertook the said acts. In particular, Ms Neill-Fraser was not the accused's client within the meaning of s 117 of the Evidence Act, at the relevant time.
(b)	The communication at the meeting and the document were not "confidential" within the meaning of the same provision.
(c)	In any event, s 125 of the Evidence Act is applicable to each piece of evidence. This section provides that the provisions relating to client legal privilege, including s 119, will not prevent the adducing of evidence if the communication was made and the document was prepared in the furtherance of the commission of an offence.
(d)	If client legal privilege would otherwise apply, then such privilege has been lost by waiver, pursuant to the provisions of s 122 of the Evidence Act.

8            I have been asked to determine this issue prior to the empanelment of the jury pursuant to s 361A of the Code. I have agreed to do so.

9 Section 119 of the Evidence Act will only operate to prevent evidence being adduced "on objection by a client". The client referred to in that section is clearly the person to whom the relevant professional legal services were allegedly provided. For the purposes of this argument, that can only be Ms Neill-Fraser. Although she was not represented in the argument before me, I am satisfied, on the basis of what I was told from the bar table by Mr Edwardson QC, senior counsel for the accused, that it has been confirmed to him by the lawyer for Ms Neill-Fraser that she objects to the relevant evidence being adduced in these proceedings. I accept that that is the case and will proceed to determine this question on the basis of her objection to the evidence being adduced in these

proceedings.

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10 For the reasons which I set out below, I have determined that the provisions of s 125 apply to the evidence in issue, and accordingly s 119, whether or not it is otherwise applicable, will not prevent the evidence from being adduced in these proceedings. In view of that determination, it is unnecessary and, in my view, undesirable, to determine the remaining issues. The determination of those issues may involve questions of fact which ought not be determined at this stage of the proceedings under s 361A, if it is not necessary to do so.

Section 125 – loss of client legal privilege: misconduct

11 Section 125, insofar as it is relevant, provides as follows:

"(1) This Division does not prevent the adducing of evidence of —

(a) a communication made or the contents of a document prepared by a client or lawyer, or both, or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of ... an offence ...; or

(2) For the purpose of this section, if the commission of the … offence … is a fact in issue and there are reasonable grounds for finding that —

(a)	the …. offence ... was committed; and
(b)	a communication was made or document prepared in furtherance of the

commission of the ... offence—

the court may find that the communication was so made or the document so
prepared."

12           For the purpose of determining the application of this section, I will assume, without finding, that Ms Neill-Fraser was a client, and the accused a lawyer, within the meaning of the relevant provisions.

13 In the circumstances of this case, it is obvious, in respect of both counts, that the commission of the offence is a fact in issue in the proceedings. The question then, under s 125(2), is whether there are reasonable grounds for finding that the offence was committed. Both parties accept that this is the determinative issue. If there are reasonable grounds for that finding, then it is clear that the communication and the affidavit are "in furtherance of" the commission of the offence in question. Neither party argued to the contrary.

14           The parties also accept that the question of whether there are reasonable grounds for finding that an offence was committed will resolve down to a determination as to whether, as a matter of law, the prosecution case can establish the offence on a prima facie basis. This test is consistent with the view expressed by the New South Wales Court of Appeal in Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 at [33]:

"The onus of proof rests with the party alleging that the privilege has been lost. There must be 'reasonable grounds' for the Court to find that the fraud, offence or act, or abuse of power was committed and that the communication was made in furtherance of it. To enliven the operation of the section, there must be evidence admitted in the proceeding, not merely an allegation about the fraud, offence or act, or abuse of power. As Dawson J explained in Commissioner of Australian Federal Police v Propend Finance Pty Ltd:

bin/viewdoc/au/cases/nsw/NSWCA/2019/12.html -

'In O'Rourke v Darbishire, Viscount Finlay said: "there must be, in order to get rid of privilege, not merely an allegation ... of a fraud, but there must be something to give colour to the charge." That test was accepted in Attorney- General (NT) v Kearney [1985] HCA 60; (1985) 158 CLR 500 at 516 by Gibbs CJ, with whom Mason and Brennan JJ agreed. Gibbs CJ added the further words of Viscount Finlay:

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"The statement [ie the allegation of fraud] must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact ... The Court will exercise its discretion, not merely as to the terms in which the allegation is made, but also as to the surrounding circumstances, for the purpose of seeing whether the charge is made honestly and with sufficient probability of its truth to make it right to disallow the privilege of professional communications".'"

15          For the purposes of this determination, the parties agreed that I should have regard to the evidence contained in the Crown papers.

16           In a related argument, Mr Edwardson submitted that if I determine as a matter of law that there is not a prima facie case disclosed in the Crown papers, then I can, in essence, finalise these proceedings under s 361A of the Code. It is not necessary for me to determine that question because of the conclusion which I have reached about the existence of a prima facie case in respect of both counts, but I strongly doubt that s 361A would authorise that course. On a plea of not guilty, the guilt of the accused must be tried by a jury (s 361), and must therefore be resolved by the jury's verdict (s 362). If, at the conclusion of the prosecution case, the Court determines that the evidence adduced does not establish a prima facie case, then the judge will direct the jury to return a verdict of Not Guilty. This will resolve the case in accordance with s 362, but, of course, is not possible under the procedure provided for in s 361A.

Perverting justice

17           In order to determine whether there is a prima facie case on either count, it is first necessary to identify the elements of the crime of perverting justice. The first step in that task is a consideration of the words of the section which create the crime:

"105 Perverting justice

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

Charge: Perverting justice."

18   On that basis, it would seem that the elements are:

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.

19          In R v Collins [1993] TASSC 135 at [11], Slicer J stated the elements in a more expansive way, but with similar effect:

"In this case the ingredients of the crime are:

1      that a person did an act or acts;

2      that the acts were voluntary and intentional;

3      that the acts were intended to cause or bring about a particular result; and

4      the result intended was the obstruction, prevention, perversion or defeat of the due course of justice or administration of the law."

20           The defence, however, argues that there is a further element of this crime. It is submitted that, in addition to proof that the act was done with the requisite intention, the jury must also be satisfied that the act has, as a matter of objective fact, a tendency to obstruct, prevent, pervert or defeat the

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administration of public justice. The basis of the argument is that the elements of the statutory crime
should reflect those applicable to the crime of attempting to pervert justice under the common law.

21           The need to establish the objective tendency of the actus reus to pervert the course of justice, as an element of the crime of attempting to pervert justice at common law, is well-established. It is also settled that the elements of tendency and intention are discrete considerations. In Meissner v The Queen (1995) 184 CLR 132, Deane J said:

"The offence of attempting to pervert the course of justice has been authoritatively defined, in this Court and elsewhere, as 'the doing of some act which has a tendency and is intended to pervert the administration of public justice'. That definition has the advantage that, while stressing the mental element of the offence (as one would anticipate in any definition of an 'attempt' offence), it makes plain that the offence is not committed unless the act which is done with the necessary intent can be objectively said to have a tendency to pervert the course of justice." [Footnotes omitted.]

The majority made similar comments at 140-141.

22          An authoritative statement as to what constitutes the requisite tendency appears from the decision of the English Court of Appeal in R v Murray (1982) 75 Cr App R 58 at 62:

"So what the judge in the present case had to decide was, whether there was evidence which was fit to go before the jury, that first of all the appellant had the intention to pervert the course of justice, which plainly he did have, but much more importantly, whether there was evidence that what he did had a tendency to have that effect. In the view of this court, there must be evidence that the appellant has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done 'without more' might lead to injustice. It seems to us that he does not himself have to introduce the evidence into the process of justice, as Mr Ognall invites us to rule. It is sufficient that what he has done 'without more' has a tendency to produce that result."

23           On the premise that the said element is applicable to the crime under s 105, the defence argues that, as a matter of law, neither alleged act of the accused can have the requisite tendency, irrespective of his intention in carrying out that act. There is some force in this argument. It is difficult to see that either the conversation between the accused and the witness at Risdon, or the preparation of a draft unexecuted affidavit, could, without more, have had a tendency to pervert the course of justice. In the former case, it could only do so if the accused took the further step of lying about what took place during the course of the meeting, and in particular, not disclosing his attempt to influence the identification. In relation to count 2, a draft affidavit, without more, cannot affect the course of justice. It could only have that tendency if something further was done, for example, the execution and presentation of the affidavit to the legal team acting for Ms Neill-Fraser. In its draft unexecuted form and while still in the exclusive possession of the accused, it could not, in my view, possess the requisite objective tendency.

24           The existence and effect of this element has been held to be applicable to cognate statutory offences in some Australian jurisdictions. See, for example, in Western Australia, Healy v The Queen (1995) 15 WAR 104; Librizzi v Western Australia [2006] WASCA 237, 33 WAR 104. In R v Beckett

[2015] HCA 38, 256 CLR 305, in a joint judgment, a majority of the High Court confirmed that "…

on the trial of a count charging an attempt to pervert the course of justice under the common law or under those statutory provisions which mirror the common law, the prosecution must prove the objective tendency of the accused's conduct to pervert the course of justice". [Emphasis added.] The Court was considering the formulation of the crime as it appears in s 319 of the Crimes Act 1900 (NSW), which is in terms that are, for relevant purposes, indistinguishable from s 105 of the Tasmanian Code. The majority noted the differences between the common law and the provision

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under consideration, but in the particular circumstances of the case, declined to resolve on a general basis whether objective tendency is an element of the crime defined by s 319. It is, however, implicit in the majority decision that it did not consider that s 319 mirrored the common law. It determined in the circumstances of the case that:

"[46] On the trial of a count charging a s 319 offence it suffices for the judge to instruct the jury in the terms of the section: the prosecution must prove that the accused did the act, or made the omission, and that, at the time of so doing, it was the accused's intention in any way to obstruct, prevent, pervert, or defeat the course of justice."

25 This case highlights the fundamental difficulty for the defence argument, which is that the common law crime and like statutory formulations, are substantially different to the Tasmanian (and New South Wales) provision. For example, s 143 of the Criminal Code (WA) is an example of a statutory formulation of the crime that could be said to "mirror" the common law. That section is in the following terms:

"Any person who attempts to obstruct, prevent, pervert, or defeat the course of justice
is guilty of a crime, and is liable to imprisonment for 7 years."

26           This difference between the Tasmanian Code and such formulations was noted by Slicer J in R v Collins (above) and Tasmania v Crane [2006] TASSC 82. His Honour pointed out that the Tasmanian provision is not concerned with an attempt to produce a consequence, but simply requires the commission of an act, with the requisite intent. I am of a similar mind. It seems to me that there are critical differences in drafting between the Tasmanian section and the formulations which mirror the common law.

27           In any event, the question has been recently considered and authoritatively settled by the New South Wales Court of Criminal Appeal in Johnston v The Queen [2019] NSWCCA 108, at least as far as s 319 of the Crimes Act is concerned. The question before the Court was that which is in issue in this case, that is whether under that provision, it is an essential element that the act or omission said to constitute the offence "besides being intended to pervert the course of justice also has a tendency to do so". Simpson AJA (with whom Johnson and R A Hulme JJ agreed) noted that the "concepts are distinct". After a comprehensive analysis of the common law and Australian decisions relating to other formulations of the crime in various Australian jurisdictions, her Honour rejected the argument that the provision reflected the common law, as well as the proposition that proof of objective tendency to pervert the course of justice is an element of the crime. She said, at [74]:

"Proof of an offence against s 319 does not require proof that the conduct alleged to constitute the offence has a tendency to pervert the course of justice (although proof that it has or has not such a tendency is not irrelevant and may well be material in proof of intention, which is an essential element): see Beckett at [45]."

28 As already noted, the terms of s 319 are indistinguishable in effect from those of s 105 of the Tasmanian Code. Although I am not strictly bound by the decision of the New South Wales Court of Criminal Appeal, as a single judge, I should follow that authority unless satisfied that it is manifestly wrong. I am not so satisfied. On the contrary, I agree with the decision and reasoning of the Court of Criminal Appeal. That reasoning is compelling and accords with the plain meaning of the words of s 105, as well as the views expressed by Slicer J in Collins and Crane. In my view, it is sufficient for the prosecution to prove that the accused committed the alleged act with the requisite intention. It is not necessary to establish that the act had, without more, an objective tendency to pervert justice.

Intention

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29           This disposes of Mr Edwardson's primary argument. However, counsel also submitted that the prosecution evidence will not, in any event, support a prima facie case in respect of the requisite intention on either count.

30          The nature of the intention which must be established was discussed by Brennan and Toohey JJ in R v Rogerson (1992) 174 CLR 268, at 280:

"Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case Reg v Todd (1957) SASR, at p 328. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions.

... the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned."

31           While discussing the concept in general terms, their Honours also considered that it would be "unwise to attempt to define these terms exhaustively as it is impossible to do so ...". Ultimately, whether the intention proved by the prosecution amounts to an intention to obstruct, prevent, pervert or defeat the due course of justice or the administration of law, will be a question for the jury.

32          In this case, the intention alleged by the prosecution, if proved, would be capable of satisfying a jury that the accused possessed the requisite intention in respect of each count. In respect of count 1, the act alleged is the accused's conduct in the meeting which is said to be an attempt to draw Mr Gleeson's attention to certain photographs, in the context of a request that he identify a particular person. As was discussed in submissions, those acts alone, if not accompanied by an intention to pervert the course of justice, could not sustain the charge. There is nothing inherently impermissible in making a suggestion to a witness in respect of a purported identification. However, an intention to achieve an identification with the assistance of such conduct, and then to use the identification in evidence in legal proceedings with a false claim that the identification had been achieved without influence, would clearly be capable of supporting a conclusion by the jury that the acts have been performed with an intention to pervert or defeat the due course of justice. Similarly, if a draft affidavit was then prepared, with the intention that it would be used to deceive the Court as to the circumstances in which the identification was made, then that also would clearly permit a jury to be satisfied that the affidavit had been prepared with the requisite intention. In each case, such findings by the jury would establish the crime.

33           Accordingly, the question becomes whether, on each count, there is evidence sufficient to permit a jury to be satisfied that the acts were performed with the said intention. This is a question of law. The classic test of a prima facie case was stated in May v O'Sullivan (1955) 92 CLR 654 at 658:

"When, at the close of the case for the prosecution, a submission is made that there is 'no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law."

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34          That statement was made in the context of a case related to the determination of a summary charge by a magistrate. In relation to a jury trial, the High Court in Doney v The Queen (1990) 171 CLR 207; 50 A Crim R 157, said at 214-215:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

35           In respect of each count, I am satisfied that there is sufficient evidence to permit a jury to draw an inference that the accused performed the alleged act with the requisite intention. Because of the stage of the proceedings at which I am making this determination, I do not intend to canvas the evidence in detail, nor make any findings of fact. It is sufficient to observe that there is a body of circumstantial evidence available to the prosecution which, when taken as a whole, would permit the jury to draw such an inference. The circumstantial evidence includes the following:

(a)	The evidence of the accused's conduct in respect of each count would be admissible in respect of the other count. The jury would be entitled to consider the entire course of conduct for the purpose of drawing the said inference.
(b)	Evidence of motive. The prosecution is able to adduce evidence that the accused considered the relevant identification to be an important aspect of establishing Ms Neill-Fraser's innocence, or at least the weakness of the prosecution case against her, and hence particularly pertinent to her success on the application. There is also evidence that a prior attempt had been made to have the witness in question make the relevant identification, but this had been unsuccessful. There is evidence that the accused had made comments which would indicate his resolve to achieve a successful identification.
(c)	At the commencement of the meeting at Risdon Prison, the accused appears to search the room for listening devices. Given the fact that he was speaking to the witness in a room at the prison, in a high profile case, taken alone, this would not justify the requisite intention. However, it is a "strand of the cable" and strengthens the prosecution case.
(d)	Although the accused may have intended to utilise the identification in other ways, including in respect of the preparation of a planned documentary, the form of the affidavit, and the evidence of the accused's discussions with the junior barrister for Ms Neill-Fraser's legal team with respect to the potential use of the affidavit, supports the prosecution's assertion that it was his intention that the evidence of the identification would be utilised in support of the application for leave to appeal.
(e)	The accused's suggestions to the witness as seen on the tape, are capable of being interpreted as demonstrating a degree of subterfuge. The prosecutor would assert that his actions demonstrate

an intention to create “plausible deniability”. While the actions shown on the surveillance tape

are open to interpretation, a jury would be entitled to consider and draw appropriate inferences

from that tape, consistent with the prosecution case.

(f)	The prosecution relies upon the fact that the accused was using photoboards, that he has endorsed the photoboard and had the witness endorse the photoboard, and, being a lawyer, would be aware of the evidentiary value of photoboards and the effect of the circumstances surrounding an identification by photoboard, on the weight to be attributed to that identification.
(g)	The prosecution submits that the accused made certain statements after he had become aware of police involvement which amount to a lie or post-offence conduct which demonstrates a consciousness of guilt.

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36 This list is not intended to be exhaustive, and I reiterate that I am not making any concluded findings in respect of the prosecution case. However, this evidence satisfies me that, at least for the purposes of the application of s 125, there is a prima facie case in respect of each count which is sufficient to establish that there are reasonable grounds for finding that the offences in question were committed. I find that those reasonable grounds exist. It follows from that conclusion that s 125(1) is applicable to both the communication in the meeting at Risdon Prison and the contents of the draft affidavit, and, accordingly, any evidence relevant to and which may disclose either, is not prevented from being adduced by the prosecution by virtue of the provisions of s 119.

37 I should clearly make the point that the conclusions arrived at concerning a prima facie case on each count, are solely for the purposes of determination of the application of s 125, and are based solely on the evidence contained in the Crown papers. It is not intended in any way to prejudge or draw any conclusions about any submission that might be made at the end of the prosecution case, that there is no case to answer on either count. The proper time for consideration of such a submission is at the close of the prosecution case, after the prosecution evidence has been adduced in court before the jury.

38           As already stated, this determination is sufficient to resolve the objection by Ms Neill-Fraser to the use of the evidence in question in these proceedings, and hence, the admissibility of that evidence. It is, therefore, not necessary for me to determine the other issues raised by the parties concerning that issue and I decline to do so.