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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
Date: 17 May 2011
Judge(s): Whealy JA, McCallum J, Schmidt J

Background

The respondent faced three charges in the District Court: intentionally damaging a taxi window, and causing two witnesses to provide false information to police with intent to pervert the course of justice. The latter two charges arose from allegations that, after police began investigating the window incident, the respondent instructed both a driver and a friend to tell police a fabricated account placing him elsewhere at the time.

Before trial commenced, the respondent applied for what was framed as an advance ruling under section 192A of the Evidence Act 1995, arguing that the Court of Criminal Appeal's decision in Einfeld v R had narrowed the scope of the statutory offence under section 319 of the Crimes Act 1900. The respondent's position was that, because no court proceedings had yet been instituted at the time of the alleged conduct, the charges could not be sustained.

District Court Judge Finnane accepted that argument, ruling that the alleged conduct could not amount to acting with intent to pervert the course of justice. The Director of Public Prosecutions appealed to the Court of Criminal Appeal.

Legal Issues

  • Whether section 319 of the Crimes Act 1900, read with section 312, extends to conduct intended to deflect a police investigation where no curial proceedings have been instituted
  • Whether the Court of Criminal Appeal's decision in Einfeld v R narrowed the scope of the offence so that it could not apply to pre-charge interference with police inquiries
  • Whether the primary judge's ruling constituted an order (quashing the counts or imposing a permanent stay) that gave the Court of Criminal Appeal jurisdiction to intervene under sections 5C or 5F(2) of the Criminal Appeal Act 1912

Decision

Issue 1: Scope of section 319 and the effect of Einfeld

Whealy JA held that the primary judge was plainly in error in his reading of Einfeld. That decision held only that section 312's phrase "the administration of the law" does not extend the statutory offence beyond the pre-existing common law concept. It did not hold that conduct aimed at deflecting a police investigation can never constitute the offence simply because no court proceedings are on foot.

The correct position, confirmed by Einfeld and drawn from the High Court in Rogerson, is that the offence can be committed before any curial proceedings are instituted, provided the accused contemplated the possibility of such proceedings and acted with intent to deflect the police from prosecuting, or from adducing evidence of the true facts. The alleged facts in this case, including the respondent's express instruction to witnesses to tell a false story so "this will just go away", were plainly capable of satisfying those elements at a prima facie level.

Issue 2: Jurisdiction to intervene

Despite the primary judge's clear error, the Court of Criminal Appeal held it had no jurisdiction to correct it. Although the primary judge framed his analysis as one of quashing two counts, he did not in fact make any formal order quashing the indictment or staying proceedings. The Court emphasised that substance prevails over form when characterising orders under section 5F, but that principle presupposes an order was actually made. Here, the ruling remained no more than a ruling: the indictment was left intact and unchanged. Without an order to scrutinise, neither section 5C nor section 5F(2) was engaged.

The Court also noted that the application before the primary judge was procedurally misconceived. An application to quash counts should have proceeded under section 17 of the Criminal Procedure Act 1986, and section 192A of the Evidence Act was not an appropriate vehicle for either quashing counts or obtaining a stay.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that Einfeld v R did not narrow the common law scope of the section 319 offence. Einfeld held only that "the administration of the law" in section 312 does not enlarge the offence beyond the pre-existing common law concept established in Rogerson.
  • Under section 319, conduct that deflects a police investigation can constitute an attempt to pervert the course of justice even where no curial proceedings have commenced, provided the accused contemplated the possibility of such proceedings and acted with intent to frustrate them.
  • An advance ruling under section 192A of the Evidence Act 1995 is not an appropriate vehicle for quashing indictment counts or obtaining a stay of proceedings; applications to quash counts should proceed under section 17 of the Criminal Procedure Act 1986.
  • For the Court of Criminal Appeal to exercise appellate jurisdiction under sections 5C or 5F(2) of the Criminal Appeal Act 1912, an order must actually have been made by the court below. A ruling that leaves the indictment formally intact cannot found that jurisdiction, even where its practical effect was to signal that the Crown would face a directed verdict.
  • In dismissing the appeal for want of jurisdiction, the Court noted that the indictment remained unaltered. The prosecution retained the ability to present the indictment again before the same or a different District Court judge, with the Court's analysis of section 319's correct scope available to guide that future proceeding.

Legislation and Cases Referenced

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

Cases
- Einfeld v R [2008] NSWCCA 215; 71 NSWLR 31; 189 A Crim R 192
- R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 304
- Director of Public Prosecutions v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46 at [54] - [59]
- R v Rogerson (1992) 174 CLR 268; 60 A Crim R 429
- R v Subramanian [2002] NSWCCA 372
- R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [9] - [14] per Spigelman CJ, Dunford and Kirby JJ agreeing
- Dao v R [2011] NSWCCA 63 per Spigelman CJ at [1] - [6], Allsop P at [74] - [76] and Simpson J at [121] - [126]
- Cheiko v R [2008] NSWCCA 191; 75 NSWLR 323 at 329 [25]