Citation: R v Kucukakyuz [2023] NSWDC 77
Court: District Court of New South Wales
Date: 31 March 2023
Judge(s): Turnbull SC DCJ
Background
The accused was charged on an indictment containing two alternative counts arising from conduct on 6 May 2020 at Parkes, NSW. The prosecution alleged that she provided information to a person under police investigation, specifically details about the model and colour of a covert police surveillance vehicle and a description of the covert operative.
Count 1 alleged that she provided this information with intent to pervert the course of justice, contrary to s 319 of the Crimes Act 1900 (NSW). Count 2 alleged that the same conduct constituted acts intended to hinder the investigation of a serious indictable offence (bribery of a police officer) by the person to whom the information was given, contrary to s 315(1)(a).
At the close of the Crown case, and in the absence of the jury, defence counsel applied for a verdict by direction on both counts, arguing there was no evidence capable of sustaining the mental element of either offence.
Legal Issues
- Whether there was evidence capable of establishing that the accused acted with intent to pervert the course of justice for the purposes of Count 1 under s 319 of the Crimes Act 1900.
- Whether a police investigation, without more, constitutes "the course of justice" for the purposes of the s 319 offence.
- Whether there was sufficient evidence to support Count 2, the alternative charge of hindering the investigation of a serious indictable offence under s 315(1)(a).
- What standard applies to a no-case-to-answer application in a jury trial.
Decision
The applicable test. The court confirmed the standard from Doney v The Queen (1990): a verdict by direction may only be granted where there is a defect in the Crown's evidence that is incapable of sustaining a guilty verdict. The court must take the Crown case at its highest and, in a circumstantial case, consider only inferences that are reasonably open and most favourable to the Crown. It is not open to direct a verdict simply because a conviction would be unsafe or unsatisfactory.
Count 1: Pervert the course of justice. The court held that s 319 requires evidence of an intention to pervert a course leading to, or contemplating, court proceedings. Relying on R v Rogerson (1992) 174 CLR 268, the court noted that police investigations do not themselves form part of the course of justice, because police do not administer justice. While R v Beckett [2015] HCA 38 confirmed that no existing judicial proceedings need be on foot at the time of the conduct, the offence still requires that the accused contemplated the possibility of criminal proceedings and that her conduct was directed at deflecting police from invoking the jurisdiction of the courts. The evidence disclosed that the covert surveillance operation had effectively been abandoned due to an investigator's error, and any inference that the surveillance vehicle would be redeployed was mere speculation. There was accordingly no evidence capable of establishing the required interference with a path leading to court proceedings.
Count 2: Hinder the investigation. The court drew a clear distinction between impeding an investigation and impeding the course of justice, observing that Parliament had deliberately enacted separate offences to address each concept. Whereas Count 1 failed for want of evidence connecting the conduct to prospective court proceedings, the evidence relating to the accused's provision of information about the covert operative and vehicle was held to be sufficient to support the hindering charge. Count 2 was therefore refused and allowed to proceed to the jury.
Orders Made
- Verdict by direction entered for the accused on Count 1 (pervert the course of justice, s 319 Crimes Act 1900).
- Application refused in relation to Count 2 (hinder investigation, s 315(1)(a) Crimes Act 1900); Count 2 to proceed to the jury.
Key Takeaways
- A conviction for perverting the course of justice under s 319 of the Crimes Act 1900 requires evidence of an intention directed at conduct capable of interfering with a course that leads toward, or at least contemplates, proceedings before a court. A police investigation alone does not constitute "the course of justice."
- Following R v Beckett [2015] HCA 38, no existing judicial proceedings need be on foot, but the accused must have contemplated the possibility that criminal proceedings would be commenced. The mere existence of an ongoing investigation is insufficient.
- Impeding an investigation and perverting the course of justice are distinct legal concepts. Parliament's enactment of separate offences in ss 315 and 319 of the Crimes Act 1900 reflects this distinction, and each offence has its own elements and reach.
- Where a no-case application is made in a circumstantial case, the court considers only reasonably open inferences most favourable to the Crown. An inference unsupported by evidence is mere speculation and cannot sustain a count.
- The District Court applied the Doney standard strictly: it directed a verdict on Count 1 because of an evidentiary defect going to an essential element, while declining to interfere with Count 2 where sufficient evidence existed.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 312, 315(1)(a), 319
Cases
- Doney v The Queen (1990) 171 CLR 207
- Einfeld v The Queen (2008) 252 ALR 375
- Johnston v The Queen [2019] NSWCCA 108
- May v O'Sullivan (1955) 92 CLR 654
- Meissner v R (1995) 184 CLR 132
- R v Beckett [2015] HCA 38
- R v Karageorge (1998) 103 A Crim R 15
- R v MacDonald [2019] NSWSC 1785
- R v Machin [1980] 1 WLR 763
- R v Obeid (No 2) [2015] NSWSC 1380
- R v Rogerson (1992) 174 CLR 268
- R v XHR [2012] NSWCCA 247