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Court of Criminal Appeal 17 May 2011

Regina v OM

[2011] NSWCCA 109

Public order & justice offences
CRIMINAL LAW NO ORDER MADE PROVIDING FALSE INFORMATION TO POLICE SCOPE OF OFFENCE

Citation: Regina v OM [2011] NSWCCA 109
Court: Court of Criminal Appeal, NSW
Date: 17 May 2011
Judge(s): Whealy JA (at [1]), McCallum J (at [56]), Schmidt J (at [57])

Background

The respondent faced three charges arising from an incident on 28 December 2008, in which he allegedly smashed the window of a taxi at traffic lights in Wolli Creek. A passenger in the taxi recorded the vehicle's registration, and police investigations ultimately traced the car to the respondent. The respondent was charged with intentional damage to property (count 1) and two counts of causing others to provide false and misleading information to police with intent to pervert the course of justice (counts 2 and 3), under s 319 of the Crimes Act 1900 (NSW).

Counts 2 and 3 related to the respondent's alleged conduct in directing two witnesses, Ms Ullah and Mr Sundarjee, to give false accounts to police denying his involvement. Both witnesses later admitted to police that they had provided false information at the respondent's request, and Ms Ullah ultimately pleaded guilty to concealing a serious indictable offence.

Before the trial commenced in the District Court, the respondent applied for a preliminary ruling that the Crown evidence was incapable of establishing a prima facie case on counts 2 and 3. The trial judge agreed, effectively ruling that the alleged conduct fell outside the scope of s 319, interpreting that provision as narrowed by the Court of Criminal Appeal's decision in Einfeld v R. The Director of Public Prosecutions (the DPP) appealed that ruling.

  • Whether the trial judge had jurisdiction to make the preliminary ruling in the form he did, and whether the DPP had a right to appeal it.
  • Whether the District Court judge correctly understood the scope of the offence of perverting the course of justice under s 319 of the Crimes Act 1900 (NSW).
  • Whether Einfeld v R confined the s 319 offence so that it could not be committed by providing false information to police prior to the commencement of curial (court) proceedings.
  • Whether the Crown evidence, taken at its highest, was capable of establishing a prima facie case on counts 2 and 3.

Decision

Jurisdictional problem: no order, no appeal. The Court of Criminal Appeal found that the trial judge had not actually made any formal order, such as quashing the two counts or staying the proceedings. Because no order was made, the DPP had no interlocutory order to appeal under either s 5C or s 5F(2) of the Criminal Appeal Act 1912 (NSW). The Court therefore lacked jurisdiction to intervene and dismissed the appeal on that basis.

The trial judge's ruling on s 319 was nevertheless wrong. Whealy JA (with whom McCallum J and Schmidt J agreed) proceeded to examine the scope of s 319 and found that the primary judge had materially misread Einfeld v R. That decision did not narrow the common law concept of perverting the course of justice so as to exclude conduct occurring before curial proceedings had commenced. The relevant question is whether, at the time the accused acted, he or she contemplated the possibility that proceedings might be brought and acted with intent to deflect or obstruct that process.

The conduct alleged was capable of supporting the charges. On the facts alleged, the evidence was plainly capable of establishing, at a prima facie level, that the respondent feared prosecution for the window-smashing, contemplated that proceedings might follow, and deliberately recruited two witnesses to give false accounts to police in order to prevent that prosecution from proceeding. The Crown would need to prove those matters beyond reasonable doubt at trial, but the threshold for a prima facie case was clearly met.

The practical consequence. Because no order was made by the trial judge, the indictment remained on foot and unaltered. The Court noted that nothing prevented the Crown from presenting the indictment again before the same judge or a different District Court judge, and expressed that any such court would be expected to apply the correct understanding of s 319 set out in the Court of Criminal Appeal's reasons.

Orders Made

No orders were made in this decision. The appeal was dismissed for want of jurisdiction, and the Court noted that the indictment stood unaffected by the trial judge's ruling.

Key Takeaways

  • Section 319 of the Crimes Act 1900 (NSW), the general offence of perverting the course of justice, is not confined to conduct occurring after curial (court) proceedings have commenced. The offence can be established where an accused contemplated the possibility of prosecution and acted with intent to deflect police from pursuing it or adducing evidence of the true facts.

  • The Court of Criminal Appeal confirmed that Einfeld v R did not narrow the common law concept underpinning s 319 to exclude pre-proceedings conduct. The primary judge's reading of that case was incorrect.

  • Causing third parties to provide false and misleading information to investigating police is capable of constituting the offence under s 319, provided the Crown can prove the accused held the requisite contemplation of proceedings and the requisite intent.

  • In dismissing the appeal, the Court highlighted a critical procedural point: where a trial judge expresses a preliminary view but makes no formal order (such as quashing a count under s 17 of the Criminal Procedure Act 1986 (NSW)), there is no interlocutory order available for the DPP to appeal, and the Court of Criminal Appeal has no jurisdiction to intervene.

  • The absence of a formal order cuts both ways: the indictment remained intact, leaving the prosecution free to re-present the matter before the District Court with the benefit of the Court of Criminal Appeal's analysis of the correct scope of the offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 195(1)(a), 312, 319
- Criminal Appeal Act 1912 (NSW), ss 5C, 5F(2)
- Crimes (Appeal and Review) Act 2001 (NSW), s 107(2)
- Criminal Procedure Act 1986 (NSW), ss 5C, 17
- Evidence Act 1995 (NSW), s 192A

Cases:
- Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31
- R v Rogerson (1992) 174 CLR 268
- R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
- Director of Public Prosecutions v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46
- R v Subramanian [2002] NSWCCA 372
- R v Cheng [1999] NSWCCA 373; 48 NSWLR 616
- Dao v R [2011] NSWCCA 63
- Cheiko v R [2008] NSWCCA 191; 75 NSWLR 323