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Court of Criminal Appeal 9 April 2003

R v Waskin

[2003] NSWCCA 96

Also reported as 141 A Crim R 1
Fraud & dishonestyPublic order & justice offences
APPEAL AGAINST CONVICTION PERIODIC DETENTION

Citation: R v Waskin [2003] NSWCCA 96
Court: New South Wales Court of Criminal Appeal
Date: 9 April 2003
Judge(s): Giles JA, Simpson J, Smart AJ

Background

The appellant was a pharmacist who had been supplying large quantities of pseudoephedrine (sudafed) to a third party at inflated prices, recruiting his young employee, Ms Nash, to make deliveries on at least two occasions. When police charged the appellant with a drug offence in August 2000, he approached Ms Nash on three separate occasions and suggested she give false accounts to police about the nature of what she had delivered, including cover stories involving video tapes and electrical wiring.

The final conversation was recorded under a lawful listening device warrant, and its contents were not disputed at trial. The appellant also made admissions in a police interview, acknowledging he knew Ms Nash was a potential witness in the drug proceedings against him.

The appellant was convicted in the District Court on a charge under s 323(a) of the Crimes Act 1900 of intending to induce a potential witness to give false evidence in judicial proceedings. The sentencing judge imposed a $2,000 fine. Both the appellant and the Crown appealed: the appellant against conviction, and the Crown against the adequacy of the penalty.

  • Whether the jury's guilty verdict on the s 323(a) charge was reasonably open on the evidence, particularly given the appellant's claimed intention was only to mislead police rather than to induce false evidence in court
  • Whether the presence before the jury of evidence about the underlying drug charge irreparably prejudiced the verdict
  • Whether the $2,000 fine was manifestly inadequate, and if so, what sentence should be substituted

Decision

Appeal against conviction dismissed. The Court rejected all three grounds advanced in support of the conviction appeal. First, the presence of evidence about the drug charge was unavoidable and necessary given the nature of the s 323(a) offence, appropriate directions had been given, and the jury was told the appellant had been discharged at committal and was therefore innocent of the drug charge. No error in the trial process was established.

Second, the Court addressed the argument that the appellant's intention was only to mislead police, not to induce false testimony in court proceedings. The Court found that the evidence was capable of supporting the inference that the appellant intended Ms Nash to carry the false account through to any judicial proceedings in which she might give evidence. His own statements confirmed he knew she was a potential witness.

Third, the Court rejected an argument based on the way s 324 defined "judicial proceedings" and its interaction with s 323. The evidence established the required elements of the charge as the jury was directed, and the verdict was reasonably open.

Crown appeal against sentence allowed. The Court found the $2,000 fine was wholly inadequate for an offence involving a deliberate attempt to subvert the administration of justice. Taking into account the appellant's lack of prior convictions, the substantial legal costs he and his wife had incurred, and the real possibility that he might lose his pharmacist's licence, the Court concluded that a term of imprisonment served by way of periodic detention represented the minimum appropriate sentence. Consistent with the obligation to sentence at the lower end of the available range when re-sentencing following a successful Crown appeal, the Court imposed a fixed term of eighteen months' periodic detention.

Orders Made

  • Appeal against conviction dismissed
  • Crown appeal against sentence allowed; original sentence of $2,000 fine quashed
  • In lieu thereof, the appellant sentenced to imprisonment for a fixed term of eighteen months to be served by way of periodic detention

Key Takeaways

  • A conviction under s 323(a) of the Crimes Act 1900 requires proof that the accused intended to induce a potential witness to give false evidence in judicial proceedings; it is not limited to situations where false evidence is actually given.
  • Where an accused suggests a false account to a person they acknowledge is a potential witness, a jury may reasonably infer the intention extended to inducing false testimony in court, not merely to misleading investigators.
  • Section 315 of the Crimes Act requires the serious indictable offence under investigation to have been committed by a person other than the accused; it does not capture conduct aimed at hindering investigation of one's own offending.
  • A fine of $2,000 was held to be manifestly inadequate for a deliberate attempt to corrupt the evidence of a witness and obstruct the administration of justice, even where mitigating factors such as significant legal costs and professional consequences were present.
  • On a successful Crown appeal, the Court of Criminal Appeal is obliged to re-sentence at the lower end of what would otherwise have been the available range, reflecting the double jeopardy considerations that apply when an offender faces re-sentencing at the prosecution's initiative.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 315, 323, 324, 556(a)
- Listening Devices Act 1984 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66

Cases
- The Queen v M (1994) 181 CLR 487
- Kingswell v The Queen (1985) 159 CLR 264
- R v Lee, unreported, NSWCCA, 6 December 1994
- R v Zreika [2000] NSWCCA 75
- R v Gian [2001] NSWCCA 276
- R v Rogerson (1992) 65 A Crim R 530
- R v Karageorge (1998) 103 A Crim R 157