Citation: Johnston v R [2019] NSWCCA 108
Court: NSW Court of Criminal Appeal
Date: 27 May 2019
Judges: Simpson AJA (leading judgment); Johnson J and R A Hulme J (agreeing)
Background
The appellant was an off-duty police sergeant who was stopped at a random breath test operation on the Pacific Highway in January 2016. When a probationary constable from her own station attempted to administer the test, she interrupted him in a confident and stern manner, asserting that it would be "a conflict of interest" for him to test her. She suggested that if she happened to return a positive reading, it would place him in an awkward position. The probationary constable, who described feeling intimidated and confused about whether he was in breach of some policy, paused and did not administer the test.
The appellant was charged in the District Court with doing an act intending to pervert the course of justice under s 319 of the Crimes Act 1900 (NSW). The Crown's case was that she had used her rank and authority to avoid the breath test, while contemplating possible criminal proceedings against her for an alcohol-related driving offence. A jury convicted her, and she was sentenced to 1 year and 4 months' imprisonment with a non-parole period of 1 year.
The appellant appealed against conviction on two grounds: first, that the trial judge misdirected the jury by omitting a required element of the offence; and second, that the guilty verdict was unreasonable and could not be supported by the evidence.
Legal Issues
- Whether it is an element of the offence under s 319 of the Crimes Act 1900 (NSW) that the act or omission in question must have a "tendency" to pervert the course of justice, in addition to being intended to do so.
- Whether the jury's verdict was unreasonable or unsupported by the evidence, specifically whether the evidence was insufficient to exclude a possible innocent intention on the appellant's part.
Decision
Ground 1: The "tendency" element
Simpson AJA conducted a close textual analysis of s 319, noting that the word "tendency" does not appear anywhere in the provision. The section imposes liability on a person who does any act or makes any omission "intending in any way to pervert the course of justice." The court distinguished this from the position at common law, where the offence of perverting the course of justice required both an intent and that the act or omission actually had a tendency to pervert the course. The court concluded that s 319 replaced the common law offence with a deliberately different statutory formulation, one focused solely on the accused's intention.
The court examined the legislative history, the structure of Part 7 of the Crimes Act, and relevant case law, including the High Court's decision in The Queen v Beckett (2015) 256 CLR 305. It concluded that "tendency" is not a separate element of the s 319 offence. The trial judge therefore did not err in failing to direct the jury on tendency, and Ground 1 was rejected.
Ground 2: Reasonableness of the verdict
The court granted leave to raise this ground, applying the test from M v The Queen (1994) 181 CLR 487. It found the argument in support of the ground to be weak. The evidence of the probationary constable, the appellant's tone and words, and the circumstances of the interaction left it well open to the jury to be satisfied beyond reasonable doubt that the appellant intended to pervert the course of justice. The court also addressed an argument drawn from the sentencing judge's remarks, finding those remarks were directed at a separate sentencing submission and did not suggest any innocent alternative intention. Ground 2 was also rejected.
Orders Made
- Leave granted to the appellant to raise Ground 2 of the appeal.
- Appeal against conviction dismissed.
Key Takeaways
- Under s 319 of the Crimes Act 1900 (NSW), the prosecution is not required to prove that the accused's act or omission had a "tendency" to pervert the course of justice. Proof of the requisite intention is sufficient; tendency is not a separate element of the offence.
- The statutory offence under s 319 differs materially from the common law offence it replaced. The legislature's omission of the word "tendency" from the provision was treated as deliberate and significant.
- In dismissing Ground 2, the Court of Criminal Appeal confirmed that a verdict is not unreasonable merely because an alternative innocent explanation is imaginable; the question is whether it was open to the jury to be satisfied beyond reasonable doubt on the evidence before it.
- Remarks made by a sentencing judge in the course of addressing a sentencing submission do not automatically give rise to findings inconsistent with the jury's verdict on intent.
- No error was established in the trial judge's summing-up, and the conviction and sentence (which the appellant did not challenge) were left undisturbed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 312, 319
- Crimes (Public Justice) Amendment Act 1990 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5
- Crimes Act 1914 (Cth)
- Judiciary Act 1903 (Cth)
Cases
- The Queen v Beckett (2015) 256 CLR 305; [2015] HCA 38
- Beckett v R (2014) 315 ALR 295; [2014] NSWCCA 305
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215
- R v Constantin Karageorge (1998) 103 A Crim R 157
- R v Charles (Court of Criminal Appeal (NSW), 23 March 1998, unrep)
- R v Murphy (1985) 4 NSWLR 42
- The Queen v Rogerson (1992) 174 CLR 268; [1992] HCA 25
- Murphy v The Queen (1985) 158 CLR 596; [1985] HCA 50
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Cunneen v Independent Commission Against Corruption [2014] NSWCA 421