The Queen v Jamie Fawcett

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/01

THE QUEEN

JAMIE FAWCETT

Hearing:	28 June 2001
Coram:	Richardson P Blanchard J Randerson J
Appearances:	E R Fairbrother for Appellant J C Pike for Crown
Judgment:	28 June 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

The appellant stood trial on a charge of driving a motor vehicle on a road with excess breath alcohol and a charge of wilfully attempting to pervert the course of justice by requesting a Mr Matamata to make a false statement. At the end of the Crown case she pleaded guilty to the driving charge. She was found guilty by the jury on the other charge and appeals her conviction on the ground that the trial Judge failed to direct the jury on what in law amounted to an attempt under s117(d) of the Crimes Act 1961:
117 Corrupting juries and witnesses
Every one is liable to imprisonment for a term not exceeding 7 years who—
(d) Wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice.
At the trial the evidence against the appellant relevant to the present appeal was given by Mr Matamata, who is her brother-in-law, and by his former partner, Miss Tai.
Mr Matamata testified that there were only two people in the car, himself and the appellant, when the driving incident occurred. He described himself as quite drunk. In fact when the police arrived at the scene he was asleep on the bonnet of the car.
Two or three nights after the incident, he said, the appellant and her co-accused, Mr Watson, who pleaded guilty after the close of the Crown case to a separate incident of attempting to pervert the course of justice, had come to the place where Mr Matamata was living with Miss Tai. Mr Matamata said that they asked him if he could go with them to see Ms Fawcett’s lawyer to change what he had put in his statement to the police about the driving incident. He was to say that there had been three people in the car, not two.
He and Miss Tai went to the office of a lawyer and, in the presence of the appellant, spoke to the lawyer. He had told the lawyer that he had been asleep which, Mr Matamata said, was not true. Asked in evidence-in-chief “Did you say anything about who was driving”? the witness replied “no only that one that I can’t remember his name”. He said he had remained at the office of the lawyer for about ten to twenty minutes.
Under cross-examination by Mr Fairbrother, Mr Matamata was asked whether he had told the lawyer that Stephen Tiopera was the driver of the vehicle. He denied having done so. “All I told him that I was asleep”. He did not think he had told the lawyer who was driving the car. Once he had told the lawyer he was asleep, the lawyer had said that he did not need Mr Matamata any more.
It was then put to him by Mr Fairbrother that “in the Court in July last year” (at the depositions hearing) he had said that he had told the lawyer that it was the appellant who had been driving the car. He agreed that he had also told the lawyer the same as he had testified in his evidence-in-chief. He further agreed that what he had told the lawyer was true, and that Ms Fawcett had not interrupted at that time and said that he was wrong. She had not stopped him “from saying that”.
However, in re-examination, in answer to a question about why the appellant and Mr Watson had wanted him to go and see the lawyer, Mr Matamata replied that it was “to change my statement”.
Miss Tai’s evidence was that Ms Fawcett had come around to the house and asked Mr Matamata if he could change his statement; to say “that he was asleep and he doesn’t know who was driving the car”. They had gone together to the lawyer’s office where Mr Matamata had told the lawyer that he did not know who was driving the car and that he was asleep.
Miss Tai also testified that there had been two visits to their house by the appellant and Mr Watson. On the first occasion they had asked Mr Matamata to go down to the Police Station to change his statement. Mr Matamata had said he did not want to do so. The second visit was the occasion on which they went to the lawyer’s office.
In his short summing up, the Judge directed the jury that the Crown had to prove that the actions of the appellant were deliberate, intended to impact on the course of justice and intended to impact on it so as to produce a wrong or unjust result. He said that the real issue for the jury was “whether this was a serious bit of witness grooming under way or was it one of the sorts of misdemeanour – “bits of human nature” to which Mr Fairbrother has referred”. The Judge said that if the jury considered that this was an orchestrated and clear effort to influence this witness so that what he said would impact on the course of justice to produce an untrue result, then the jury was entitled to say that this was no trivial matter at all.
Mr Fairbrother submitted to us that the jury should have been instructed not only in terms of s117(d) but also in terms of s72:
72      Attempts
(1)       Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
(2)       The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.
(3)       An act done or omitted with intent to commit an offence may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.
In particular, the jury ought to have been instructed that they had to consider whether the acts of the appellant were only preparation for the commission of the offence and too remote to constitute an attempt and not immediately or proximately connected with the intended offence. Counsel pointed to what he said was a conflict between High Court authorities. In R v O’Donnell (1991) 7 CRNZ 314 Eichelbaum CJ had followed the English case of R v Machin [1980] 3 All ER 151, and quoted the following passage from the headnote:
The gist of the offence of attempting to pervert the course of public justice was conduct which was intended and had a tendency to lead a miscarriage of justice, regardless of whether a miscarriage actually occurred. The word ‘attempt’ was misleading to the extent that it suggested that the conduct of the defendant should be assessed in terms of proximity to an ultimate offence. The word was, however, convenient for use in the cases where it could not be proved that the course of justice was actually perverted, but it did no more than describe a substantive offence consisting of conduct which had a tendency and was intended to prevent the course of justice.

The Chief Justice had adopted that passage, saying that it was directly relevant to s117(d).

On the other hand, in R v Ostermann (unreported, T143/85, Auckland Registry, 26 February 1986) Henry J, after referring to the same passage, had commented:
Although our s117 is itself a substantive offence, and accordingly resort need not be had to s72, it seems to me illogical to deal with the concept of attempt other than in a consistent fashion in the one statute. The word “attempt” now has an established and sensible meaning in the criminal law and in my view that must be applied in considering s117(d). It also accords with the ordinary meaning of the word, i.e, to try and accomplish an object. Whether that in practical terms gives a different test from that suggested in Machin I very much doubt.
Whether conduct tends to pervert the course of justice would seem to me to require a consideration of its proximity to the occurrence of such an event. So in this case proof is required of an intentional act which goes beyond mere preparation, done for the purpose of perverting the course of justice, and constituting what can properly be classed as an attempt.
In the later case of R v Costain (unreported, Rotorua Registry, T.23/91, 5 July 1991), Penlington J referred to R v Murray [1982] 2 All ER 225 and said that it must be shown that what the accused did, “without more”, had a tendency to produce the result of perverting the course of justice.
Mr Fairbrother submitted that the trial Judge had not addressed the relationship between s117(d) and s72 and had not correctly directed the jury on the “specific test” to be applied under s117(d). They had been given no indication as to the meaning of the word “attempts” in law.
It was the submission of Mr Pike, for the Crown, that there is no offence of perverting or defeating justice; that the actus reus of the crime charged against the appellant is defined in terms of attempt. Therefore, to apply s72 was to ask whether there was sufficient evidence of an attempt to bring about an offence, and under s117(d) that offence is an attempt. Counsel said that “there is no justiciable concept of an attempt to attempt.”
Furthermore, Mr Pike said, even if s72 supplied the proper analytic approach to s117(d), the issue in this prosecution had been academic. Whether an act has gone beyond “mere preparation” to commit a crime to something done to bring about the actus reus is a question of degree (Police v Wylie [1976] 2 NZLR 167). Here the act of taking a prosecution witness to the accused’s lawyer for the purpose of making a statement created by the accused and known by her to be false and contrary to the statement earlier made to the police by the witness, had gone beyond mere preparation. The jury must have accepted that the witness was pressured into accompanying the appellant to the lawyer’s office to give a version of the facts to the lawyer that she knew to be contrary to the existing statement of the witness, and untrue.
We prefer the approach taken by Henry J in Ostermann but agree with him that in practical terms the result, when applied to a particular factual situation, would be unlikely to differ if the test suggested in Machin were applied. It is, we think, necessary to show that what was done was not mere preparation and too remote to constitute an attempt to obstruct, prevent, pervert, or defeat the course of justice. It must be immediately or proximately connected with the intended object, namely the obstruction etc of the course of justice. Mr Pike is technically correct that the obstruction etc is not an offence. Hence the language of s72 cannot be read literally when applied in this context. But whether the attempt is to commit an offence or as in s117(d), to achieve an objective, the concept of what constitutes an attempt, or something falling short of an attempt - something which is a mere preliminary - is the same.
In this case, the Judge told the jury that the Crown had to prove that the actions of the appellant were intended to impact on the course of justice and that they had to determine whether this was “a serious bit of witness grooming under way”. He also spoke of “an orchestrated and clear effort” to influence the witness. We think the jury would have been left in no doubt, particularly from the use of the words “under way”, that actual steps directed towards perverting the course of justice had to be shown; that there had to be something more than mere preparation.
On the facts of this case we have no doubt that the jury’s decision was inevitable so that, even if we had considered the direction to be inadequate, we would have concluded, in terms of the proviso to s385(1), that no substantial miscarriage of justice has occurred. There were two visits to Mr Matamata’s home in an effort to persuade him to change his statement, following which the appellant arranged for him to go to her lawyer’s office for that purpose. Matters reached the stage of Mr Matamata actually attending at the office and speaking to the lawyer. Fortunately, the attempt appears to have ended at that stage, but what had already occurred by that time cannot be said to have been mere preparation. It had developed into a present effort to achieve the objective of perverting the course of justice by obtaining a change in Mr Matamata’s statement.
The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington

[2001] NZCA 192

28 June 2001