The Queen v Beckett
[2015] HCATrans 216
[2015] HCATrans 216
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S94 of 2015
B e t w e e n -
THE QUEEN
Appellant
and
BARBARA BECKETT
Respondent
FRENCH CJ
KIEFEL J
BELL J
KEANE J
NETTLE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 4 SEPTEMBER 2015, AT 10.00 AM
Copyright in the High Court of Australia
MR L.A. BABB, SC: Yes, I appear with my learned friend, MS S.C. DOWLING, SC. (instructed by Solicitor for Public Prosecutions (NSW))
MR G.O’L. REYNOLDS, SC: May it please the Court, in this matter I appear for the respondent, with my learned friend, MR D.P. HUME. (instructed by Hammond Nguyen Turnbull)
FRENCH CJ: Yes, Mr Babb.
MR BABB: Your Honours, we will give you a moment to have a look at the outline of oral argument.
FRENCH CJ: That would be helpful, thanks. Take a seat for the moment. Yes, thank you, Mr Babb.
MR BABB: Your Honours, can I commence by taking you to section 319 of the Crimes Act and that is in the appeal book at 373, extracted in the Court of Criminal Appeal’s judgment. Also extracted there is section 312 of the Crimes Act. Those sections were enacted and commenced in November 1990 and they were part of an array of new offences relating to public justice. Section 341 of the Crimes Act repealed a number of common law offences, including the common law offence of pervert the course of justice, attempt to pervert and conspiracy to pervert the course of justice. In looking to section 319 and the wording of section 319, it applies to:
A person who does any act, or makes any omission, intending in any way to pervert the course of justice ‑
Those terms do not refer to or require an actual perversion of the course of justice. The only stipulation is that the act be done intending to pervert the course of justice. The section hinges liability on the doing of any act with that intent. The effect or consequences of the Act are not an element of the offence.
KEANE J: So, an objective tendency is no longer an element of the offence.
MR BABB: That is my submission, your Honour. I have outlined in the written submissions the case law in relation to that. There have been cases in relation to statutory provisions – attempt to pervert the course of justice with no reference to tendency that have incorporated a requirement for an objective tendency. But on my submission, on a literal reading of section 319, it does not require an objective tendency. If it does, your Honour, we say that in this case the falsification of the photocopies of the cheques and the making of the false statements are plainly intended to impact on the possible judicial proceedings.
Acting with intent to pervert the course of justice has never been confined to acts done after the commencement of judicial proceedings. It is well accepted that a court’s capacity to do justice can be impacted by actions that have been committed before proceedings have been commenced. In R v Rogerson at page 277, 174 CLR, bottom of the page ‑ ‑ ‑
KIEFEL J: I am sorry, what was the page, Mr Babb?
MR BABB: Page 277, your Honour.
KIEFEL J: Thank you.
MR BABB:
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed. That is because action taken before . . . may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings –
The terms of section 319, in my submission, apply to conduct intended to pervert actual or possible curial proceedings. They encompass acts done in contemplation of possible judicial proceedings with intent to pervert, obstruct, prevent or defeat such possible proceedings.
FRENCH CJ: Incidentally, sorry, just on the objective element issue, that does not arise in this case, does it?
MR BABB: It does not arise in this case, no, your Honour. The meaning of “pervert the course of justice” is defined in section 312 of the Act and is defined to include those things, preventing, perverting, defeating or obstructing the course of justice. This construction is consistent with the common law offence of attempting to pervert the course of justice outlined in the case of Vreones [1891] 1 QB 360 and this is at 369:
the doing of some act which has a tendency and is intended to pervert the administration of [public] justice.
Now, Vreones, in my submission, is factually a very similar case to the one before this Court. In Vreones, the case dealt with tampering with evidence and the creation of new evidence that was going to be available for possible arbitration proceedings. That action was completed at a time when no arbitration proceedings were on foot. In fact, no arbitration proceedings ever came to be on foot.
They had no samples with which to conduct such proceedings and the analogy with this case is strong. In this case, there was the creation of falsified documents, the false cheques, the prosecution says with the intention of diverting or deflecting the investigation and ensuring that no judicial proceedings commence.
FRENCH CJ: So far as the scope of the offence is concerned, your argument would cover the simple lie to the investigators, would it not?
MR BABB: It would, but the prosecution would always have to prove an intention ‑ ‑ ‑
FRENCH CJ: Yes.
MR BABB: ‑ ‑ ‑ to pervert the course of justice which ‑ ‑ ‑
FRENCH CJ: Well, “the bank lost my cheques”.
MR BABB: Sorry?
FRENCH CJ: “The bank lost my cheques.”
MR BABB: Sorry, I am missing?
FRENCH CJ: The bank lost the cheques.
MR BABB: The bank has lost the cheques, yes, and so there has to be a proof that it was with the intention of perverting the course of justice which would require a contemplation of curial proceedings.
KIEFEL J: Mr Babb, are you saying that – is it part of your submissions that section 319 has picked up the common law offence, the meaning of attempt to pervert the course of justice at common law?
MR BABB: No, it is informed by, your Honour, in terms of the meaning of “the course of justice” but, in fact, in my submission, it is broader than. It is at least encompassed within the common law offence but broader because it does not specifically require a tendency.
KIEFEL J: Yes.
BELL J: In that respect, you rely on the analysis of the common law offence of attempt to pervert the course of justice by the five judge Bench of the Court of Criminal Appeal in Murphy (1985) 4 NSWLR 42 at 49. Their Honours analysed Baron Pollock’s celebrated statement and concluded the importance of the decision is that the conduct of the accused was not judged to have a tendency to pervert the course of justice by reference to its probable or possible effects on the arbitrators. It had that tendency because it was an act done in the course of fulfilling his intention. As I understand it, that is your contention ‑ ‑ ‑
MR BABB: That is my position.
BELL J: ‑ ‑ ‑ respecting the elements of the offence.
MR BABB: Exactly so, your Honour.
BELL J: Yes.
MR BABB: Your Honour, the error that I point to in the Court of Criminal Appeal judgment is found at page 406 of the appeal book, paragraph 111. A proper understanding of what the President is referring to by:
The conduct engaged in by the applicant ‑
is gleaned from reading paragraph 105. That is, even accepting that the respondent – that it was:
possible prosecution action . . . expressly adverted to –
in the letter sent – that is at appeal book 186, third paragraph from the bottom in that letter. This was a notice sent some 11 days prior to the presentation of the falsified documents:
Any breaches of the stated Acts or Ors found to have occurred by individuals, prosecution action may be considered by the Office of State Revenue.
Prosecution action in terms of the Taxation Administration Act is action in curial proceedings, your Honour. That is found at section 125 of the Taxation Administration Act, which is reproduced at appeal book 376.
Now, I accept, your Honours, that the way that the trial judge in the hearing of the notice of motion expressed her ultimate conclusion was not precisely correct in that she concluded the taking into account these features and that there were “possible prosecution action . . . expressly adverted to”, it could be inferred that the curial proceedings were in the contemplation of the accused. The trial judge went on to then say that there was “a course of justice”.
Now, that was a misstatement in that, it is my submission that in fact the investigation stood outside the concept of a “course of justice” but that does not mean that in appropriate circumstances it does not interfere, and with a possible future course of justice and thereby pervert it, and this is consistent with what Chief Justice Mason said in the passage that I took your Honours to in Rogerson at page 277. So, that misstatement by the trial judges at page 164, line 48, “there was a course of justice in existence at the time”.
But clearly, your Honours, the principle that the trial judge was doing is the one that I am putting forward, that is, there was contemplation of a prima facie case of contemplation of possible curial proceedings and with that in mind a falsification of documents and false statements on oath were capable of making out the offence of doing an act with ‑ ‑ ‑
FRENCH CJ: So, what is the relevant intention if one had to try and crystallise it? To prevent such proceedings being commenced by persuading the investigators that everything was hunky dory?
MR BABB: It could be a number of things, your Honour ‑ deflecting the proceedings entirely, defeating them so that they did not commence or ensuring that there would be false material before a curial proceedings, if it did commence, so as to deflect the actual proceedings itself.
BELL J: To prevent the court from ascertaining the true facts.
MR BABB: The true facts. So, in this case it could be either of those two things.
FRENCH CJ: Well, is there any doubt that, on the grounds case, the objective was to get the investigators to say, well, we are satisfied with that explanation?
MR BABB: That is the strongest inference.
FRENCH CJ: That was the Crown’s case, was it not?
MR BABB: Yes, yes, and had it been accepted at face value without further investigation that would likely have succeeded. Your Honours, in relation to the prosecution case, the respondent submits that the section 319 offence cannot succeed because there are difficulties in establishing the specific breach of the Electronic Duties Return scheme and the prosecution for such breaches were for them to fail.
The investigation was at its early stages when the respondent presented herself and presented the falsified documents and made the false statements. It was not known which specific breaches had occurred. It had not been determined at that stage whether a prosecution would ensue. Those were matters to be assessed in the investigation, but it was clear at all times that the primary focus was on the Darling Point transaction and that at the relevant times the payment of duty remained unpaid at the time.
But that was not the only matter discussed in the interview, and at trial it is expected that it will be established that the letter was sent notifying the respondent about the possibility of prosecution action as a result of the investigation and during the record of interview the respondent acknowledged she was aware there were possible breaches of the EDR scheme in relation to the Darling Point transfer, and she presented the most elaborate false explanation during the record of interview as to the cheques.
BELL J: If it is correct that the section 319 offence does not require as an element proof of the objective tendency of the act or omission to pervert the course of justice, nonetheless, as I understand your submissions, you say at the minimum what is required is the intention to pervert the course of justice in the sense of a possible prosecution for an offence.
MR BABB: Yes.
BELL J: If, looking at a completely different set of facts, there was simply no possibility that an offence might arise out of the conduct, would a person doing an act, having an intention to defeat the course of justice, notwithstanding that there was no possibility of any prosecution for any offence, satisfy the section 319?
MR BABB: In my submission, it would. The important thing is the intention at the time of doing the act. There are good reasons why that section is so framed: The intention to divert criminal proceedings is something for which sanction is required, and one of the reasons why – also why I say this is that it is not incumbent on a proving of this offence that you prove that what was intended to be stopped must necessarily have established an offence.
That would require a proof of some other – the viability of some other prosecution that is not necessary. Prosecutions may fail because of some weakness in the proof in relation to an element of the offence, but prosecutions are still commenced where they ultimately do fail. Doing an act with intent to stop a prosecution, even where it is likely to fail, is perverting the course of justice.
FRENCH CJ: But the range of acts that might – coupled with the relevant intent – constitute the offence if there is no logical connection between the act and the course of justice could be very large. It is not necessary for us in this case on the Crown case, as I understand it, to explore the limits of that because your case is, on any view, what was done here would fall within the category anyway of something with a tendency to have the effect that you have prescribed.
MR BABB: That is true, your Honour, but it may be a useful exploration in that it is ‑ ‑ ‑
BELL J: In the event you succeed, Mr Crown, a judge is going to have to direct a jury what the elements of this offence are.
MR BABB: Yes, and the position is unresolved. In the case of Einfeld in the Court of Criminal Appeal, there was an analysis of whether an objective tendency was required and the court ultimately, at paragraph 75, concluded that issue was not resolved.
FRENCH CJ: Sorry, what page was that?
MR BABB: It is paragraph 75, your Honour, and it is page 51.
FRENCH CJ: Yes.
MR BABB: There is some detailed analysis before that statement. In relation to this case and the possible breaches, my submission is that it remains a justiciable issue whether an offence is made out under sections 41 and 42 in relation to the stamping without being in possession of the cheques. The prospects of success in those proceedings do not determine the result in relation to the section 219 offence. Further, there were other possible breaches. Failure to have paid the duty at all was the prime one, the very essence of the Act and the EDR scheme.
The notice of assessment, which is at appeal book page 181, this notice that was electronically raised by the respondent notes at point 30 that the due date for payment of the assessed amount was 17 June 2010. If your Honours go back two pages to the notice of approval issued on 24 February, the respondent is approved - this is third paragraph from the bottom:
Under this arrangement, you are approved to endorse instruments upon receipt of a Notice of Assessment –
which I have just taken your Honours to –
and pay duty by return.
If you go up to the details of the approved person, the return frequency is weekly, commencing date is Sunday of every week and the day upon which returns must be lodged, which includes paying the duty by return, is the Thursday after the Sunday of every week. So, again, that is a possible breach acting on the mind of the respondent also at the time of the record of interview.
BELL J: On your submission would, in any event, make out the elements of the offence under 42(2) of the Act.
MR BABB: Yes. Your Honours, unless I can assist you further, they are my submissions.
FRENCH CJ: Yes, thank you, Mr Babb. Yes, Mr Reynolds.
MR REYNOLDS: Would your Honours pardon me for a moment while I speak to my friend about something? Your Honours have our synopsis or outline of oral submissions?
FRENCH CJ: Yes, Mr Reynolds.
MR REYNOLDS: In addition to the outline, could I ask your Honours to have at your elbow, so to speak, the three submissions, that is written submissions which have been filed because I am going to refer to some of the paragraphs there so that I can deal with matters more shortly. My learned friend has taken your Honours to the text of section 319. If your Honours go very briefly to our submissions, that is the respondent’s submissions at paragraph 11, we there note and we give references that the Court of Appeal’s construction of the words “pervert the course of justice” related to an existing course of justice and your Honours will see that the primary judge in the following paragraph, that is, paragraph 12, construed section 319 in exactly the same manner. In my submission ‑ ‑ ‑
BELL J: I understood that the primary judge effectively adopted the prosecution’s submissions that the approach was as stated by the Court of Criminal Appeal in OM.
MR REYNOLDS: I think that is right, your Honour, but I am looking here at isolating the issue of construction and the rulings, or holdings by the courts below just on this point.
BELL J: OM took a different view.
MR REYNOLDS: Yes. Well, I maintain that the construction given by the four judges below on this point was correct as set out in those two paragraphs.
BELL J: Yes.
MR REYNOLDS: Now, the essential difference, as we have said in paragraph 13 of our submissions, between the Court of Criminal Appeal, on the one hand, and the primary judge on the other, related to the application of that construction to the particular circumstances of this case. What the primary judge said was that at the point of the interview with the investigators, which was before any charge, there was an existing course of justice. On the other hand, the Court of Criminal Appeal held that at the point of investigation pre‑charge there was no existing course of justice at all.
Now, as we understand it, there is not any issue between the parties and, for reasons I will get to in a moment there could not be, that the Court of Criminal Appeal was correct in holding that and that the primary judge was wrong in finding that there was an existing course of justice at the point of investigation.
The reason that the Court of Criminal Appeal was correct and the primary judge was wrong is that there is no doubt from the case law that one does not have an existing course of justice until proceedings have been instituted. That is clear, if your Honours go to the Court of Criminal Appeal’s judgment in the appeal book at paragraph 80 which is located at page 394 where their Honours make the point that it was held – they are here talking about the Rogerson Case, that the “course of justice” does not start until the jurisdiction of a court is invoked, in other words, until proceedings are instituted.
Your Honours might, in that regard, also refer to paragraph 92, the second sentence, where – this is discussing Einfeld, and it is noted that the court in Einfeld accepted that the expressions in section 312 were in effect the same as Rogerson. That is not challenged – that is, this point, this holding in Rogerson is not challenged, nor could it be without seeking to overrule Rogerson. It is not raised in any of the submissions or in the notice of appeal.
So, what we come down to, in my submission, essentially is just one issue of construction and that is whether the four judges below were correct in finding that the words “course of justice” in section 319 mean an existing course of justice. As your Honours have seen this morning, the terms of debate really come down to this, that we say the “course of justice” means an existing course of justice, and my learned friend says that “course of justice” is a course of justice existing or future or potential.
Now, your Honours will have seen from our submissions that the key case that we rely on is the decision of this Court in Murphy. I want to go at least to a portion of that case in a little bit of detail. This is R v Murphy (1985) 158 CLR 596. This is a decision in 1985, and of course this part of the Crimes Act in which section 319 appears was incorporated into that Act five years later in 1990.
So this, as at 1990, was the leading case in this country in general terms on the issue of perverting the course of justice. It really goes without saying that it was at the time a cause célèbre, and obviously any person, particularly any draftsman of legislation in this area would have had this case at his or her elbow constantly in looking at the various issues that arise, and would have taken very careful note of it.
Now, what I want to do with this case is not go right through it, but really to do three things. First of all, I want to isolate the key portions of the case that we rely on. Secondly, I want to try and extract some relevant propositions from those passages, which again we adopt. Thirdly, I want to deal with a couple of passages which the Crown relies upon which I hope to explain away.
Now, starting then with what we submit at the key portions. They are all really found on page 610, but before I come to that, the case concerned, as your Honours will recall, section 43 of the Crimes Act, which is set out at page 608 at about point 7 on the page. Your Honours will see that it is, in form, an attempt charge – that is attempting the same words appear as here:
obstruct, prevent, pervert or defeat the course of justice ‑
That, of course, in that case narrowed it down in relation to:
the judicial power of the Commonwealth.
Now, over the page, their Honours refer to the war on what I am going to call the sui generis common law offence of attempting to pervert the course of justice and the reason, as your Honours know, why I am using that description is that it is important, at least by way of background, to make the point that we are not talking here about the usual form of attempt with which your Honours deal where it is an inchoate offence in relation to some other substantive offence. This is a most unusual form of substantive offence because it is not inchoate. It is a clean substantive offence in its own right.
Now, there is reference at the bottom of page 609 to some of the case law on the common law offence of attempting to pervert the course of justice. That is the sui generis offence which I will come back to in a moment. Your Honours will see that at the top of page 610 there is reference to an English decision of Reg. v Selvage which I am not going to take your Honours to because the relevant passages are excerpted on page 610. It is clear from the two passages that are being quoted that to some extent at least the Court is intending to adopt what is there said. The key passage, in my submission, is about halfway down that page in the first and second lines of the quote where it is stated that:
a course of justice must have been embarked upon –
I would ask your Honours notionally or otherwise to underscore those words. If your Honours go back three lines, this is said to be a vital test or principle.
BELL J: His Lordship was there speaking of the course of justice which the English Court of Appeal took to include the police investigation ‑ ‑ ‑
MR REYNOLDS: Quite.
BELL J: ‑ ‑ ‑ and it was that matter that in Rogerson this Court disavowed ‑ ‑ ‑
MR REYNOLDS: That is right.
BELL J: ‑ ‑ ‑ but accepted the result in Selvage to be correct.
MR REYNOLDS: Yes, but I am trying to distinguish between two things, your Honours. One is the principle of law that we are talking about, and the second is – or three things ‑ first, the principle of law, second, the test that is applied to that principle and, third, the application of that principle and that test to the facts. Now, what you have here, I submit, is a very clear articulation of what the principle is. That is the first thing.
The second thing is you do not have any enunciation of the test – I will come back to that – and you have thirdly a statement, as one sometimes gets from judges, that in effect whatever the test is or wherever the line is to be drawn this case is clear. Can I attempt to develop that a little more slowly? I just said about two minutes ago the proposition of law is that there must be a course of justice which has been embarked upon, and that that is a vital test of principle. That is the first thing.
BELL J: This is defining the common law offence of attempting to pervert the course of justice.
MR REYNOLDS: Not only that, your Honour, because if we go up about two lines, he is talking about a charge of perverting as well as a charge of attempt, which of course is a specific context. If your Honour goes down to the next paragraph, your Honours will see the same principle is applied to:
jurisdictions where the offence has been defined by statute –
where the words “course of justice” occur. There is another aspect of this, and your Honour, in my respectful submission, is dragging me a little off my three points, as your Honour is entitled to do, but the point that I would ‑ ‑ ‑
BELL J: Well, at some stage, Mr Reynolds, it would assist if we went back to the embrace in Murphy at 609 of the gist of the offence described by Baron Pollock in Vreones, since when one looks at the facts of Vreones it is palpably clear that there was no requirement that proceedings before a judicial tribunal be on foot for the offence to be established. So if Murphy stands for something, one can hardly cherry pick from page 610 without reference to the embrace of Vreones.
MR REYNOLDS: Your Honour, as counsel often find themselves in the situation where they lay out what they are going to do ‑ one, two, three, four five, and one of the learned judges says that they are interested in proposition 5, that is effectively what your Honour is raising with me. That is a matter that I am coming to, and I hope in about three or four minutes’ time. Your Honour is in charge, or perhaps I should say your Honour the Chief Justice is ‑ ‑ ‑
FRENCH CJ: Let us not talk process, let us just – either, you are going to deal with it now or you will move on to it.
MR REYNOLDS: I would prefer, if I may, on my undertaking ‑ ‑ ‑
FRENCH CJ: Yes. Well, just proceed.
MR REYNOLDS: ‑ ‑ ‑ to deal with it in detail and, if necessary, ad nauseam. If I can just get out what I say we extract from Murphy, and then deal with the matter which I do have to deal with and which my learned friend ‑ ‑ ‑
BELL J: Yes. Well, just as long as we accept that.
MR REYNOLDS: We accept that in its entirety.
BELL J: Good.
MR REYNOLDS: But I have to deal with those passages.
BELL J: All right, let us hear the analysis, Mr Reynolds.
MR REYNOLDS: But let me, if I may ‑ ‑ ‑
BELL J: By all means.
KIEFEL J: I am looking forward to hearing what you want to say, Mr Reynolds.
MR REYNOLDS: All right I am – it is – let me get on with it. So, the proposition is that a course of justice must have been embarked upon and that that is a vital test or principle.
NETTLE J: Or, the offence of pervert course of justice, as opposed to attempt, you mean.
MR REYNOLDS: No, both, because the previous page we are talking about attempt and this has been adopted in that context. As your Honours saw about point 4 on the page, we are also talking about charge of pervert. As I said a moment ago, we are also talking at about point 6 on the page of the application of this principle also to statutory offences which, of course, is what we are dealing with here, which used the expression, “course of justice”.
So, what I submit we have here – and this is my principle of law, which I submit is being stated universally in relation to the two common law offences, pervert, and the sui generis offence of attempt to pervert, and also in relation to the statutory offences, including section 43 which is what is being talked about here. So, that is the first thing I want to nail to the mast. That is proposition of law. Now, if you say that a course of justice must have commenced or must have been embarked upon, you obviously have to try and enunciate a test at some stage about when the course of justice commences.
Now, their Honours do not do that because what they say is, in the following paragraph:
Whatever the limits of the offence there –
will be a –
course of justice” –
or a “course of justice” will ‑
include the conduct of committal proceedings.
So, this is a fairly well‑acknowledged judicial technique, that is, state the principle, accept that a line will have to be drawn at some stage but say, but wherever the line is drawn, this case is well within that line and I interpolate, it obviously is because, to anticipate things, this Court held in Rogerson, the course of justice will commence when proceedings are instituted and where we are talking here about committal proceedings, obviously the charge has been filed against the accused at that point.
So, going back to my three points; first of all, the principle is that a course of justice must have been embarked upon and this is a universal principle. Second of all, how does one determine when a course of justice has commenced? The answer is, in this case, not determined but later determined, of course, in Rogerson where that test is enunciated. Third of all, the application of that principle to the facts in this case is by reference to there being a committal proceedings which is clearly an extant or existing course of justice.
NETTLE J: Sorry, could you just give me the third proposition again.
MR REYNOLDS: The third proposition is that applying the test, I am sorry, the principle that this situation here, namely, the conduct of criminal proceedings, clearly comes within the notion of an existing course of justice without enunciating what I have called proposition 2, namely what is the test of an existing course of justice, proposition 2 later being dealt with in Rogerson.
Now, this proposition is up in lights in this case. It is a big principle. It is a vital test or principle that is being referred to and it is the key to the resolution of the particular issue that they are dealing with there at page 610. It is accepted as being of universal application, both as to the two common law offences but also as to the statutory offences, as they say in jurisdictions where the offence is defined by statute and more narrowly to section 43.
Now, I think I have dealt with what my client likes in page 610 of Murphy and I need now to deal with the matter your Honour Justice Bell raised with me which is that there are passages on page 610 at about point 3 and about point 5 and also at the bottom of page 609 which are all consistent with a statement or do in fact state that there is an existing course of justice when investigations are in progress, that is, before a charge is laid or before proceedings are instituted.
Now that, of course, is not the issue before their Honours in the Murphy Case because it is not an investigation case. It was a case where Mr Murphy had been charged and the committal proceedings were underway.
We say three things about these passages. The first is that there is no issue on this appeal that insofar as their Honours veer in the direction of saying that an investigation pre‑charges an existing course of justice, there is no issue that insofar as that is suggested it is wrong, no issue. The second point is that the reason it is wrong and the reason there is no contest about it is because it is accepted, as it must be, by both parties, that the Rogerson Case held that there was no existing course of justice until proceedings had been instituted. So, insofar as those statements veer in that direction, they are wrong.
The third point which I have made implicitly already is that insofar as investigations are spoken of here, the point is – or the observations are clearly obiter, because we are not dealing with investigations here pre‑charge. We are dealing with a situation where there has been a charge and we are in the middle of committal proceedings.
So, what I hope to have done is to have indicated what the vital principle is, indicated that the test for determining that principle, that is, what is an existing course of justice was not dealt with in this case, but was dealt with in Rogerson and thirdly, to have made the point that even though there are some passages here which talk about investigations which the Crown likes because the flavour of it is similar to this case, that those observations are first of all obiter, and that they fly in the face of the holding in Rogerson. Just to go back over things very briefly, there is a clear demarcation between the English authorities in this area and the Australian.
NETTLE J: Sorry just to delay you – which of the statements do you say are obiter?
MR REYNOLDS: The statements that – it is at 610 point 3, 610 point 5, and 609 point 9 - insofar as those passages suggest or state that there is an existing course of justice when investigations are in progress.
BELL J: Can I just inquire whether in the unanimous judgment in Murphy at 609, about point 7, their Honours say the gist of the offence was that described by Baron Pollock in Vreones – whether that adoption of Vreones sits with the argument you are not developing?
MR REYNOLDS: Well, we submit that there is no reason why it would not.
BELL J: There was no course of justice in the sense of no proceedings on foot in Vreones.
MR REYNOLDS: No.
BELL J: How does that sit with the principle that you have been developing then?
MR REYNOLDS: Well, because they are not adopting the facts in Vreones. They are formulating the principle – you see, Vreones was itself interpreted in Selvage, and Vreones as a decision in 1891. As one often finds from that era, judges are very confident and they state things shortly and clearly in a fairly short judgment, often without reference to authority. It is then left for later judges to flesh things out and analyse with more particularity of what the principles are, and that is what happened in Selvage ‑ ‑ ‑
BELL J: Just so I can understand, is your position that the adoption of Baron Pollock’s statement in Vreones by the Court in Murphy was an adoption of the words but that on a proper analysis of their Honour’s reasoning Vreones was wrong on its facts.
MR REYNOLDS: No, they are referring to it as a lead in to Selvage which itself, if we were to go back to it, interprets Vreones. It is described about two‑thirds of the way down page 609 where they say that:
The gist of the offence was described by Pollock B. –
in a particular way. There then follow some observations which I have said are obiter because we are dealing here with a situation where proceedings had been commenced and where it was beyond the point of investigation pre‑charge. Let me be candid. It looks very much like if you had asked any of the six Judges sitting on this case in Murphy would the course of justice or does the notion of an existing course of justice extend back to the point where investigations were underway into a possible offence they would have said yes.
If that is what your Honour Justice Bell is after from me, I concede that. They were obviously thinking in those terms but when they define the actual principle, which is what we come down to and not the application of it to the facts, and the elucidation of the test in an existing course of justice in Rogerson, then those passages insofar as they are consistent with an obiter view about investigations are clearly wrong insofar as they either state or imply that investigations come within an existing course of justice.
I think I have said most of what I need to say about Murphy other than to make the bottom‑line submission that what is said there at page 610 is, we submit, a very powerful reason for interpreting the words “course of justice” in section 319 as referring to an existing course of justice.
NETTLE J: Accepting that is so, what makes it clear though that police investigations are not sufficient to constitute that kind of course of justice?
MR REYNOLDS: I have already conceded that although they are obiter it looks very much like their Honours did think that the notion of an existing course of justice would arc back prior to the point of commencement of proceedings to an earlier stage to some extent.
NETTLE J: But you say that is wrong?
MR REYNOLDS: It is wrong and I can, as it were, prove it by reference to a statement in Rogerson which says that apropos the principle of an existing course of justice the test is that you determine is there an existing course of justice by saying have proceedings been instituted. Well, the point of investigation pre‑charge, no proceedings have been instituted, therefore, investigations are not within the course of justice.
Again, that is why that is not in the notice of appeal and my learned friends do not dispute and cannot dispute that investigations come within the notion of an existing course of justice. They do not say that. Their quibble – I should not call it a quibble, their objection to the reasoning of the four judges below is as to the proposition that there must be an existing course of justice and that that proposition is incorporated into section 319. That is the only, I submit, area of debate.
Now, can I go then to what I will call the Crown’s alternative construction and one could be forgiven, if I may respectfully say so, for saying that there has, with all due respect to my learned friend, been a little bit of vacillation on the alternative test that the Crown says is, in effect, incorporated into the section 319. There are two things that have been mentioned: first of all, tendency. At one stage I think my learned friend said – I think he said it more than once, that tendency is not required in this interpretation of section 319.
At another point he seemed to backtrack on that a little, so what I am going to do in a moment is deal with the issue of tendency, but what I would prefer to do because I have just really been dealing with it is deal with my learned friend’s second element in his test which is that he says that the second aspect of the formulation that is, as it were, incorporated into section 319 is the notion of an intention to pervert the course of justice but where the course of justice in that particular collocation means either an existing or a future course of justice. He says that is what it means and he has referred to cases on the common law of attempt which are consistent with that proposition.
So, can I deal with that second limb, if I may, first? Your Honours will have seen both from my learned friend’s outline today and also to some extent from his oral submissions that he seeks to derive support for that proposition largely from the decision in Rogerson. Can I deal with Rogerson again just to outline what I am going to do? First of all, by going to what I submit are the core holdings in that case which are relevant to this appeal. Second of all, I want to make some comments about those matters, and thirdly, I want to advance some submissions or reasons as to why the Murphy Case at page 610 should govern the interpretation of section 319 rather than what is said in Rogerson.
Now, I submit that the relevant core holdings in Rogerson can be stated fairly shortly and I hope clearly. The first is, and we have mentioned it before, is that an attempt to pervert the course of justice may occur before curial proceedings are commenced. Could I give your Honours just a couple of references: page 277 at point 7 and page 283, point 2. Your Honours need not go to this, it is not an issue in this case, but could your Honours perhaps underline, if your Honours took a note, the words “curial proceedings” in that formulation. That is, that an attempt to pervert the course of justice may occur before curial proceedings are commenced.
The second proposition is that a course of justice does not commence until curial proceedings are instituted. That is clear from page 283, point 3 and page 303, point 9. Again, no issue about that and that is the effect of the Court of Criminal Appeal’s reasoning at paragraph 80, first sentence. That much, we submit, is clear. We submit that there is a third, what one might call an inferential holding because it is not put up in lights as a proposition, and that is that the offence of attempting to pervert the course of justice can be committed before a course of justice has commenced.
Their remarks are confined, of course, to the offence, the sui generis offence of attempting to pervert the course of justice, and when one looks at the facts of this case it is clear that their Honours are saying that there is no difficulty with an offence of attempting to pervert the course of justice being committed before a course of justice has commenced because the relevant attempt in the Rogerson case took place before proceedings have been instituted.
Can I secondly make some comments about the case? The first is that their Honours do not address in terms or a fortiori expressly alter what is said in Murphy at page 610 about a vital test or principle that is an existing course of justice. They do not hover over that or deal with it or say that it is wrong or right or whatever. Second of all, obviously, there is the test of when a course of justice exists or commences is dealt with; we have dealt with that before. The third point is that, unlike the Murphy decision at page 610, this case is only dealing in its formulation of principle ‑ and I think my learned friend said this ‑ with one offence, and that is the sui generis offence of attempting to pervert the course of justice at common law. They are not dealing here with perverting the course of justice and they are not dealing here with a construction of any particular statutory offence.
Next, their Honours do not formulate any general test or principle such as we find at page 610 or Murphy which is applicable outside the area of that one common law offence of attempting to pervert the course of justice. I am nearly finished. Next, that this is a case obviously which was handed down after the enactment of section 319 and the part in which it appears because this decision was handed down in 1992 and this legislation was passed in 1990.
Finally, this case, I submit, albeit only inferentially, creates what I will call a partial qualification on the so‑called vital test or principle in Murphy at page 610 that there must be an existing course of justice, but it does so, as I say, partially and only pro tanto, that is, in respect of the one offence of the common law offence of attempting to pervert the course of justice.
It does not address, far less undermine the operation of what I have said is this vital test or principle, so far as it applies outside the context of that sui generis common law offence. It does not purport to articulate reasoning which would be applicable, for example, to the more general offence of perverting the course of justice, or to the statutory offences which have been referred to in Murphy.
I said finally that I would put some submissions as to why we submit these statements in Murphy rather than what I have called the inferential holding in Rogerson should govern the interpretation of section 319. The first is that the Murphy decision is a decision prior to the enactment of section 319, whereas the Rogerson decision postdates it.
I submit it is much easier to say that the Murphy Case and what is stated in it is part of the context in which section 319 was enacted, and of course impossible to say that the Rogerson Case is in that category. Now, there is a need – and we are dealing here with a partial code – that point was made inter alios by your Honour Justice Bell in the Einfield Case at paragraph 65 here, that is, roughly stated, the common law relating to perversion of the course of justice in a general sense is crossed out and there is then an insertion of what appears to be a code of that whole area. I would add, maybe not the law of contempt so far as it impacts on that, but that is by the by. It is a code, and we are here in the area of interpretation of codes in the light of articulation of common law principles.
So, just going back to this first point – much easier to say that if you have got a vital test of principle which is said to be applicable to all, or to the two perverting the course of justice offences and also to statutory offences that that is, as it were, taken as a given when this provision in section 319 is enacted. Why? Because the High Court had said – and of course, Rogerson had not been decided – that when you are interpreting “course of justice” in the statutes, or when you are interpreting it as part of an element in either of these two common law offences and you say “course of justice”, you mean one that exists. That, we submit, is a very powerful reason for interpreting this provision as governed by Murphy.
Of course, this section does not replicate in terms either the offence of perverting the course of justice at common law or attempting to pervert the course of justice. It, in a kind of way, straddles the two and part of the difficulty with my learned friend’s argument is that he has this common law case on attempt, does not have a case which talks about or applies future proceedings. Does not have a case on pervert, that does the same, and he does not have a case on a statutory provision that he takes you to that does the same. But he says, well, but if there is a case on attempt, even though 319 does not replicate that in terms, then that, as it were, governs this more general offence. I will come back to that in a moment but that is the first point, is that Murphy is pre‑enactment. Second of all, Murphy obviously articulates ‑ ‑ ‑
BELL J: Can I just raise this with you, Mr Reynolds? I think part of the context also that the prosecution relies on is the five judge decision of the New South Wales Court of Criminal Appeal, following Mr Murphy’s conviction at the first trial. Now, in summary, their Honours considered the element in the offence of it, attempting to pervert the course of justice, that Baron Pollock had spoken of when he referred to having a tendency, and their Honours focused the attention of the tendency not on the probable effect in any proceedings, but rather on the tendency to give effect to the intention to pervert.
Now, as I understand it, the prosecution points to the circumstance that when the New South Wales legislature came to enact the general offence of perverting the course of justice, it chose not to enact an offence described as attempting to pervert, but rather placed the emphasis in terms of the elements of the offence on the intention to pervert. That is a submission that might be thought to have, insofar as the court looks to any context to understand the words of section 319, that might be another ‑ ‑ ‑
MR REYNOLDS: Straw in the wind?
BELL J: However you want to put it, Mr Reynolds, but you understand what we are looking at is a scheme that was introduced in 1990 that abolished the offences of perverting the course of justice at common law, conspiring to pervert the course of justice and attempting to pervert the course of justice and introduced a single and novel offence of intending to pervert the course of justice and, in a sense, to analyse the elements of the reasoning in Rogerson or Murphy may not really be to come to grips with how one would state the elements of this novel statutory offence.
MR REYNOLDS: Well, again I come back first of all to what I have said and that is that course of justice, according to Murphy, prior to enactment, makes it clear that those words mean an existing course of justice.
BELL J: I think we understand that submission.
MR REYNOLDS: And there would be nothing in the Court of Criminal Appeal in Murphy which obviously could gainsay what was said by the High Court in Murphy. That is ‑ ‑ ‑
BELL J: I do not think that is suggested, Mr Reynolds. It is a rather discrete submission.
MR REYNOLDS: The second thing that I would say is that insofar as it might appear that the Court of Criminal Appeal – and my learned friend has not put this on his authorities so I did not understand him to have this as a key portion of his submissions but that is by the by but ‑ ‑ ‑
BELL J: Well, it is in his submissions.
MR REYNOLDS: I understand that, but we cannot really deal with the text of it very easily, although I have got it here – sorry, I am being diverted. The point I am trying to make is if it be suggested that what the Court of Criminal Appeal did in Murphy was to make the notion - the first element of tendency cave in on the second element of intention, and that is a very rough summary of what I understand your Honour Justice Bell has put to me, then my submission would be twofold.
The first is that that does not sit at all comfortably with the decision of the High Court in Murphy; that is the first point. The second point is it does not sit comfortably with the later decisions of this Court in Rogerson and Meissner because in those various cases where they are talking about either an attempt to pervert the course of justice at common law, or alternatively, the replication of that formula in section 43 of the Crimes Act, in all of these cases, the twofold test is mentioned without what I will call a cave‑in of the first proposition down into the second.
So, my learned friend wanted to suggest that somehow the Court of Criminal Appeal’s decision in Murphy is, as it were, a critical portion of the dictionary in interpreting section 319, then I would submit that he has a great deal of work to do in satisfying Justices of this Court that they should ‑ ‑ ‑
BELL J: I think the submission was put in terms of an explanation for the creation of an offence, unlike the offences under the Crimes Act (Cth), under the Griffith Code in Queensland and in Western Australia, an offence that emphasised that it was an intention to pervert as distinct from an attempt. That is the context.
MR REYNOLDS: Your Honour, if we are talking about the decision purely as I said somewhat flippantly as part of one of the many straws in the wind that were about before the provision was enacted, it may be that at what one might call a lower level form of influence or information gathering it may well have had some effect, but the point that I am trying to make is that it would not be any more than that and it would not arise to the point of amounting to what this Court has called a vital test or principle in the Murphy Case.
BELL J: So that, just as I understand the argument, one reads “course of justice” subject to the vital principle stated in Murphy as an existing course of justice with the consequence that the enactment in Part 7 of the general offence of perverting the course of justice was confined to what might be described as the common law offence of perverting the course of justice and the Parliament chose not to enact statutory offences of attempting to or conspiring to pervert. That is the effect of it, is it?
MR REYNOLDS: Well, I think in a loose sense I would agree with the first part of what your Honour put to me but I do not know about the latter portion. Just to restate, in effect, what I do accept or what I am putting and that is that going back to Murphy at page 610 the words “course of justice” are taken to mean an existing course of justice both in the formulation of elements at common law of both offences and also of the – when one reads - your Honours will see the words the “course of justice” were quoted in the relevant paragraph, when those words appear in a statutory provision like section 43 and they are read in the same way.
This is a sort of fundamental principle or basis upon which this provision has been enacted by reference to this very recent High Court decision and again, importantly, I know I am stressing basics, enacted before the section 319 came in.
NETTLE J: Just pausing there, it must be clear in the case of the common law offence of pervert course of justice, what you say is there must be an existing course of justice which is initiated only when curial proceedings commence.
MR REYNOLDS: I do.
NETTLE J: But Murphy also dealt with attempt to pervert course of justice and said that it may be committed before there are any curial proceedings commenced. Do you accept that, for the sake of the argument or not?
MR REYNOLDS: No, let me just go back on that because it is quite important that I make our position clear. No, I do not accept that.
NETTLE J: Do not accept that it says that or that it was correct?
MR REYNOLDS: I accept that an obiter view is expressed or seems to be expressed.
NETTLE J: You are talking about 609 of the report ‑ ‑ ‑
MR REYNOLDS: And 610.
NETTLE J: No, 609 is the part where they deal with attempt.
MR REYNOLDS: Within the principle of an existing course of justice and taking that as a given and accepting that the question of investigation does not arise in this case, their Honours appear, very clearly, to be of a provisional view that investigations would come within the notion of what is an existing course of justice and, of course, to the extent that they formed that provisional view that provisional view is directly inconsistent with the test as later formulated in Rogerson as to what an existing course of justice is.
NETTLE J: Yes, I understand. Does it mean – I am sorry, just to finish that off, does that mean when one looks at 609 and adds in what was subsequently clarified in Rogerson that there is no course of justice until curial proceedings are commenced. When the Court refers at 609 in Murphy to the possibility of there being an offence of attempt pervert course of justice before curial proceedings, that proceeds on an erroneous assumption that there may be a course of justice before curial proceedings.
MR REYNOLDS: Yes, an assumption later proved to be false by the decision in Rogerson because when they say ‑ ‑ ‑
NETTLE J: No, I am with you, but there was one further step. Does that mean then in your submission that there can be no common law offence of attempt pervert course of justice before curial proceedings?
MR REYNOLDS: No, I cannot say that because the effect of Rogerson inferentially is to put a dent pro tanto in this universal test or principle articulated at page 610 and I accept that. I must accept that, that the later decision, that is after the enactment of section 319, takes that vital test or principle and although it does not address it in terms it puts a ding in it apropos only the offence of attempting to pervert the course of justice at common law and I must accept that.
NETTLE J: You have got attempt, then pervert course of justice as it is defined in Rogerson. Why, to pick up Justice Bell’s question, ought it be assumed that the legislature did not intend to include in section 319 something at least as broad as that?
MR REYNOLDS: Because at the point at which the legislation is enacted, the vital test or principle as it is stated at page 610 – a principle which still exists apropos both statutory offences – and this is a statutory offence, and the offence of pervert the course of justice. Can I add this – I was talking about the notion of - your Honour Justice Bell talked about it as being a code in Einfeld, and your Honours know there are cases about the extent to which one can use decisions on the common law in interpreting a code.
Can I just get these points out – first of all, those cases would permit the words “course of justice” to be interpreted by reference to what was stated pre‑enactment as a vital test of principle - first point. The second point is those cases would allow for the articulation of a test to be applied in order to determine the operation of the test or principle articulated before enactment. Why - because it goes to determining the scope or meaning of the words “course of justice” in the Code. There are cases like – I will come to in a moment – on that. But the third point is, if I may be permitted a flourish, that the cases do not permit development or interpretation of particular words in the Code, “by reference to whatever judges say inferentially or otherwise in anything to do with this area in some case on common law”.
Now that is, as I said, a rhetorical flourish. But underlying the flourish is the proposition that what my learned friend is using future case law on one common law offence is, I submit, an illegitimate mode of interpretation of a code. Can I give your Honours – we have not put all these on our list, but there is a discussion of interpretation of codes in the 8th edition of Pearce and Geddes ‑ ‑ ‑
BELL J: Mr Reynolds, is it giving it a little bit of an athletic workout to be talking of this as a code and are you about to take us to cases about palimpsests and ‑ ‑ ‑
MR REYNOLDS: Your Honour, I was hoping your Honour would raise that, palimpsests that is, and your Honour obviously remembers Justice Windeyer’s famous statement, but ‑ ‑ ‑
BELL J: Indeed. Will it help us to understand how to interpret section 319 of the Crimes Act?
MR REYNOLDS: Absolutely, because the point that is made – can I give your Honours the reference to the 8th edition of Pearce and Geddes on Statutory Interpretation at paragraph 8, point 9, where the palimpsest dictum is set out? There are restrictions, but as Sir Anthony Mason said in the Sungravure Case (1975) 134 CLR 1 at, apparently, page 22, if an expression has a technical meaning, then insofar as that expression is elucidated by common law cases on the meaning of that technical expression, then cases at common law can be used.
FRENCH CJ: The common law talks about “perverting the course of justice” and “attempts to pervert the course of justice”. We have a statutory collocation which is “intending in any way to pervert the course of justice”. The question is why does one exclude from the scope of that conduct intending to pervert a future course of justice or a contemplated course of justice? It is a matter of the words, how wide or narrow the words are.
MR REYNOLDS: It is, but I am making the point – perhaps in too much detail – that insofar as there is a test stated in Murphy, that is legitimate within that doctrine. Insofar as content is given to that test in very clear terms by Rogerson that is within that doctrine. But thirdly, insofar as there is reliance upon “case law on attempting to pervert the course of justice” as it is stated by the judges from time to time as a dictionary, if you like, for interpreting these words: one, then that does not come within these principles, and second of all, it is very difficult to use cases subsequently on common law doctrines, particularly only one crime, in that way in order to inform the use of particular words in a code.
Now, I have digressed mightily from what I have said is a series of reasons about why Murphy should govern the interpretation of 319 rather than Rogerson. The second one that I wanted to get to is that Murphy articulates a universal principle applicable to all course of justice offences, common law and statutory, whereas Rogerson is confined to the common law of attempt.
I think I also said before but let me repeat it in this context; that Murphy, so far as it articulates this existing “course of justice” test or rule or principle, is still good law in relation to the offence at common law of perverting the course of justice as well as in relation to statutory offences, of which this is one. That is another aspect of it.
FRENCH CJ: I think we understand your submissions.
MR REYNOLDS: Sorry, your Honour. Next, that Murphy deals in terms and states this principle explicitly, whereas one needs, as I said at the outset, to read Rogerson as to what it states inferentially about future courses of justice, and finally, and I think I have already said this but let me repeat it again just to complete the list, that the Murphy rule at page 610 in terms applies to statutory offences of which this is one.
That is what I wanted to say about Murphy and Rogerson. Your Honours will have seen in our written submissions at paragraph 18, we fall back on what is sometimes referred to as the ambiguity principle and we have referred to some of the cases in that paragraph. There are others that are referred to again, if I can conveniently just give you a reference to the Pearce and Geddes book at paragraph 9, point 9, and this is of course, trite law.
But what I submit is, even if one takes the Crown argument as high as it can be put on this point of interpretation, they cannot get it any higher than showing that there is a lack of clarity or ambiguity on this point and if that be the end of the construction exercise, then the reserve parachute, as it were, for my client, is this ambiguity principle that, or put another way, again somewhat loosely, that my client has shown enough in written and oral argument to show that there is at least lack of clarity or ambiguity in this provision and in that situation, we fall back on that principle with the result that the ambiguity is resolved in favour of our construction, as it were, by a sort of default.
KIEFEL J: What is the ambiguity?
MR REYNOLDS: Well, the ambiguity is as to whether the words “course of justice” refer to an existing course of justice or whether they refer to an existing and future course of justice, essentially. I was going to deal with tendency next and as I say I am, in the end, this may not matter a great deal and of course I am in your Honours’ hands but I can put this, I hope, reasonably shortly and it is this.
First of all, the biggest problem for the Crown insofar as they assert that there is an element of tendency to be inserted into this offence is there is not any reasonable basis at all for reading such a requirement into this section. Indeed, it was implicit in what your Honour Justice Bell put to me at one point that that would not have been the intention of the legislature for the reasons that your Honour articulated in arguendo. Nor has the prosecution indicated any basis for that, other than the very generalist observation that, well, that is what the common law of attempt is and therefore you stick the first element in the common law attempt offence into this section.
We submit that it is very difficult to suggest, given the terms of this provision, that a requirement that the act or omission “must have a tendency to pervert the course of justice” would be inserted, particularly by reference to two further matters. The first is that the legislature, particularly reading cases like Murphy, must have known that the common law offence of attempt refers to tendency. That is very, very clear in the case law so, in short, their omission to insert such a requirement is, I submit, very telling.
The second subsidiary point is this, that if there be a requirement, as there obviously is, of an intention to pervert the course of justice, then as a matter of common sense it follows that there will normally have to be an act which has that tendency and that that will form part of the factual substratum that the Crown point to in order to demonstrate that there is an intention to pervert the course of justice.
So, that aspect – or an aspect of that element is going to, as a practical matter, be incorporated into this offence pretty well as a matter of course in any event. So far as the cases are concerned the submissions do refer to some cases and, apart from one observation which I will come back to, I do not think it is put much higher against me than that there is some case law in New South Wales where this requirement of tendency has been assumed.
Your Honour Justice Bell went through the cases on this point in the Einfeld decision as they were current at that point at paragraphs 72 to 74, and if I may be so bold, I would suggest, although your Honour did not need to decide it, came to the view pretty much as you have put it to me today in the argument, namely, that the section is to be interpreted “Basically, you read it as it says”, if that is not too glib a summary of what your Honour puts to me.
As to assumptions, I would submit, your Honours, that is assumptions where there has been no argument and no addressing in terms of the issue I would submit that the High Court of Australia does not have to parse and analyse assumptions made in the lower courts on a point like this. But there is one point that I would make before leaving tendency and it is this.
There is a submission that was made by the Crown in paragraph 6.18 to 6.19 of their submissions apropos the decision of the New South Wales Court of Appeal in Karageorge as it is called and the submission that was made – let me just get the reference, was paragraphs 6.18 to 6.19 that there is a majority view here in favour of interpreting section 319 as incorporating a requirement of tendency. We submit, with respect, that that is a misreading of the judgments.
I will just give your Honours some references. It is true that Justice Simpson at page 183 albeit without, with respect, any reasoning and apparently no argument did say there was a tendency requirement but so far as the other two judges are concerned, Justice Levine at page 173 at about point 6 said it was not necessary to decide the point and as my friends acknowledge Justice Sully at page 160 went quite the other way and said tendency was not an element.
NETTLE J: Do you submit it is not an element either?
MR REYNOLDS: Yes. We submit that it is a distraction, essentially. It does tend to underline what we have said is a more fundamental defect in the approach made by the Crown, and that is that – again, put somewhat rhetorically – you just drag into the interpretation of section 319 whatever is said about the common law offence of attempt to pervert the course of justice in future cases, and this somehow governs in some general way the whole way you interpret section 319. I accept that, as I said, is a bit rhetorical, but that is the flavour of the Crown approach, and I submit that that does not face up to the difficulties of interpreting a code by reference to later decisions on the common law.
Now, the final thing that I need to deal with is, if your Honours go back to our oral outline at the second section towards the top of page 2, and if your Honours could perhaps have that outline to hand whilst I deal with this ‑ ‑ ‑
KIEFEL J: Mr Reynolds, is it appropriate for this Court to deal with the prospects of success of a prosecution when the motion which commenced these proceedings was in the nature of a demurrer on a point of law?
MR REYNOLDS: It is both a demurrer and a stay. A stay will cover a situation, going back to the heading that I have used, where the case is foredoomed to fail. I submit, if I can ‑ ‑ ‑
KIEFEL J: Was this argued below?
MR REYNOLDS: No, but this is by way of response to the case that is put against us, which is that there were possible proceedings. I accept I have to put the submission high, and that is that I have to show the so‑called possible charge is manifestly untenable on the, as we have put it, construction of the formal documentation of the Office of State Revenue. This is not a factual argument, but one based upon the construction of the various sections.
BELL J: This was your ground 13 before the Court of Criminal Appeal, to which no submissions were directed.
MR REYNOLDS: I think that is right, your Honour.
KIEFEL J: Motion paragraph 1(c) was the stay was as an abuse of process.
MR REYNOLDS: I am sorry, your Honour?
KIEFEL J: The basis for the stay in the motion is said to be that the matter was an abuse of process.
MR REYNOLDS: I have to establish that the case which the Crown says is a possible case is manifestly untenable – that comes within the abuse of process cases, and I can ‑ ‑ ‑
KIEFEL J: Well, assuming for present purposes that something approaching a “no case” is intended to be an abuse of process argument, the point Justice Bell has raised is this has not been argued below.
MR REYNOLDS: No, but it is a point of law and where it is in response to the case that is put against me and where it is a submission of law and where there is absolutely no prejudice to the Crown and where it has been dealt with in great detail in the submissions and, indeed, has been the subject already of oral argument.
FRENCH CJ: But is this really a contention point?
MR REYNOLDS: Well, your Honour, we have taken the view that it is not because the way the case is put against us is that there were proceedings, or rather offences, that were said to be the relevant possible offences as part of the Crown case in the Crown reply at 9. That is what we start off with. But we are content, if the Court takes a different view, to formalise things, with leave if required, by putting on a notice of contention to this point.
But it is a matter that has been live in the written submissions and we would submit I do not need a notice of contention for the simple reason that it is by way of an amplification of a pregnant denial of the case that the Crown is putting against us in this Court. It says, “This is our case”. The case as formulated in the reply at paragraph 9 accepts that the Crown must establish that the particular offences which they say were possible offences were in fact possible offences. They accept that. Your Honours, this is not a lengthy point.
KIEFEL J: Forgive me, but where does the prosecution make a submission to the effect that this is a strong case which requires you to respond that the case has no strength at all?
MR REYNOLDS: Well, they say in their reply at paragraph 9 that:
The s 319 offence depends on proving that curial proceedings for breaches ‑ ‑ ‑
KIEFEL J: That is in reply to your submissions.
MR REYNOLDS: Yes, but, your Honour, the submissions that we made in response to the Crown deal with this aspect of the case, and so do the Crown’s submissions in‑chief. They make it clear what ‑ ‑ ‑
KIEFEL J: That just means you have created the issue. The question is whether or not it is an issue which was alive below, and it appears not to be.
MR REYNOLDS: But again, the Crown is putting the case in a particular way in this Court and we say that we are entitled to respond by saying the way they put this case is foredoomed to fail as they now put it. Now, it is only a matter of a construction of one document, your Honour, and in my submission, it is not fair that if my client – in the situation I have described where it has been agitated in the written and oral submissions where there is no prejudice, where it amounts to a point of law and where it is referred to again in paragraph 6.47 of their submissions in‑chief as well as the submissions in reply, we should be allowed to put it and that as a matter of fairness if ‑ ‑ ‑
FRENCH CJ: It would only be a matter of fairness if you were faced with a decision adverse to you on that basis.
MR REYNOLDS: Well, I submit it goes further than that, with respect, and the point that I am trying to get to is, if one accepts that I have an argument – and I would ask your Honours to accept that – that this case is absolutely ridiculous and it cannot possibly succeed, then as a matter of fairness to my client then she should be allowed to put that argument to your Honours. Now ‑ ‑ ‑
FRENCH CJ: Just a minute, Mr Reynolds. The Court will adjourn briefly to determine what course it should take.
AT 11.49 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.51 AM:
FRENCH CJ: The Court will not entertain submissions on the basis indicated in the respondent’s outline that the Crown case is foredoomed to fail, so you are precluded from proceeding with those arguments.
MR REYNOLDS: Thank you, your Honour. Your Honour, there are only two other matters that I wanted to mention. The first is that my learned junior has given me a reference to a case of DPP v Keating (2013) 248 CLR 459 at paragraph 48 which talks about it being:
fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it.
The only other thing is this. I know your Honours do not entertain arguments about costs dealing with every possibility that could happen in advance of delivering judgment, but can I just note that my client wishes to make a submission that if the appeal is dismissed that the Crown should pay the costs given that they got leave to argue a point of public interest. We were going to refer only to two cases which I can give your Honours now or if your Honours would like a note at some later time of course we will do it that way.
FRENCH CJ: I think if you just give us a note of the cases.
MR REYNOLDS: The first decision is R v Whitworth (1988) 164 CLR 500 which was recently applied in the Momcilovic Case which is on our list of authorities, Momcilovic v The Queen (2011) 245 CLR 1. The
other case is a decision of R v Martin which – I can hand copies to your Honours, unfortunately the page that has been photocopied does not have the ‑ ‑ ‑
FRENCH CJ: Just give us the reference, perhaps, Mr Reynolds.
MR REYNOLDS: The page does not have it on it, I am sorry, your Honour. If I can hand copies to your Honour ‑ ‑ ‑
FRENCH CJ: The page does not have what on it?
MR REYNOLDS: Well, normally when one photocopies a page of a judgment if longer than several pages then the reference is included at the top of the page but this is only one page.
FRENCH CJ: If you can just give us a note with the reference afterwards.
MR REYNOLDS: All right, your Honour. If the Court pleases, those are my submissions.
FRENCH CJ: Yes, thank you. Yes, Mr Babb.
MR BABB: Nothing in reply, thank you, your Honours.
FRENCH CJ: Yes, all right, thank you. The Court will reserve its decision. The Court adjourns until 10.15 am on Tuesday, 8 September.
AT 11.55 AM THE MATTER WAS ADJOURNED
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