Citation: Einfeld v R [2008] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 14 October 2008
Judge(s): Bell JA, Hulme J, Latham J
Background
The appellant was committed for trial on nine counts, six of which alleged doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). The Chief Justice granted an exemption to permit the indictment to be presented in the Supreme Court rather than the District Court, and an indictment dated 21 January 2008 was duly presented. The appellant was not, however, formally arraigned on that indictment.
The appellant filed a Notice of Motion seeking, among other things, to quash the first five counts in the indictment. James J dismissed that application. The appellant then sought leave to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW), which governs interlocutory appeals in criminal proceedings.
The central question on appeal was whether the conduct alleged in counts 1 to 5 could constitute "perverting the course of justice" within the meaning of s 319, given the statutory definition of "administration of the law" in s 312 of the Crimes Act.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to entertain an interlocutory appeal under s 5F(3) where the applicant had not yet been arraigned on the indictment.
- Whether the expression "the administration of the law" in s 312 of the Crimes Act extends beyond the administration of civil and criminal law by courts and tribunals (for example, to enforcement activities by police or regulatory bodies).
- Whether counts 1 to 5 in the indictment were properly framed offences under s 319, having regard to the correct interpretation of that statutory definition.
Decision
Jurisdiction
A preliminary question arose because the appellant had not been arraigned on the indictment. The Court addressed whether s 5F(3) conferred jurisdiction in those circumstances and ultimately concluded that leave to appeal should be granted, proceeding to determine the substantive application.
Meaning of "Administration of the Law"
The core of the appeal turned on the proper construction of "the administration of the law" as defined in s 312 and used in s 319 of the Crimes Act. The Court examined the legislative history of Part 7 of the Crimes Act, which was introduced by the Crimes (Public Justice) Amendment Act 1990, and considered the context created by the broader scheme of public justice offences.
The Court held that "the administration of the law" in s 312 is to be understood in the sense in which Sir Samuel Griffith used the expression in R v Nicholls (1911), and as it has since been used in this area of legal discourse: that is, the administration of the civil and criminal law by courts and tribunals. Understood in that way, the expression differs little, if at all, from "the course of justice" as explained by the High Court in R v Rogerson (1992). The Court also applied the principle against extending the scope of a penal statute beyond its ordinary meaning, noting that a literal reading of the definition would sit uncomfortably within the carefully structured scheme of Part 7, where Parliament ranked offences by seriousness and notably included no express offence dealing with obstruction of public officials or government bodies in the administration of law more broadly.
Because counts 1 to 5 did not fall within that properly confined meaning, the Court quashed those counts.
Orders Made
- Leave granted under s 5F(3) of the Criminal Appeal Act 1912.
- Appeal allowed; James J's order dismissing the relief claimed in prayer 2 of the Notice of Motion filed 15 April 2008 was set aside.
- Counts 1 to 5 in the indictment dated 21 January 2008 were quashed.
Key Takeaways
- The Court of Criminal Appeal confirmed that "the administration of the law" in s 312 of the Crimes Act 1900 (NSW) refers to the administration of civil and criminal law by courts and tribunals, and not to the exercise of law enforcement or regulatory functions more broadly.
- Under s 319, a charge of perverting the course of justice must be founded on conduct directed at judicial or tribunal processes; the statutory definition does not extend the offence to interference with the administrative or enforcement activities of public officials.
- The canon of statutory construction against extending the scope of penal legislation was central to the Court's reasoning: where a literal reading of a definition would expand criminal liability beyond the established legal meaning of the underlying concept, that reading will not be preferred.
- Part 7 of the Crimes Act was treated as a carefully calibrated legislative scheme in which the relative seriousness of offences, the availability of summary disposal, and the presence or absence of particular offence categories are all relevant indicators of Parliament's intent.
- An indictment may be presented and challenged at an interlocutory stage even where the accused has not yet been formally arraigned, at least for the purposes of conferring appellate jurisdiction under s 5F(3) of the Criminal Appeal Act 1912.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 312, 319 and Part 7
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Procedure Act 1986 (NSW), ss 128, 129, 260, 267
- Crimes (Public Justice) Amendment Act 1990
- Interpretation Act 1987 (NSW)
- Road Transport (General) Act 1999 (NSW)
Key Cases
- R v Rogerson [1992] HCA 25; (1991–1992) 174 CLR 268
- R v Nicholls [1911] HCA 22; (1911) 12 CLR 280
- John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344
- R v Edelsten (1989) 18 NSWLR 213
- R v Matovski (1989) 15 NSWLR 720
- R v Waterhouse (1992) 62 A Crim R 59
- Saraswati v R (1990–1991) 172 CLR 1
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562