Citation: Regina v Wilfred Lawson Reid [1999] NSWCCA 355
Court: Court of Criminal Appeal (New South Wales)
Date: 12 November 1999
Judge(s): Sully J, Hulme J, Hidden J
Background
The respondent, Mr Reid, had been charged with a range of minor offences arising from a motor vehicle accident in 1996. Before the Local Court hearing, he approached a personal friend, Mr Becchio, who had no first-hand knowledge of the incident, and recruited him to give false exculpatory evidence. The two men visited the accident scene together to rehearse a plausible account, and Mr Becchio later attended the respondent's solicitor to provide a formal statement. Mr Becchio duly gave false evidence at the Local Court hearing; the respondent was nonetheless convicted.
After a falling out with the respondent, Mr Becchio attended police and confessed to committing perjury. He subsequently pleaded guilty to that offence. As a result, the respondent was charged under s 323(a) of the Crimes Act 1900 (NSW), which creates an offence of intentionally causing a person "called or to be called as a witness" to give false evidence in judicial proceedings.
The respondent appealed his conviction to the District Court. Howie DCJ, sitting on that appeal, was minded to dismiss the charge on the ground that Mr Becchio did not qualify as a person "to be called as a witness" at the time the relevant conduct occurred. Before making that order, however, his Honour stated a case for the opinion of the Court of Criminal Appeal.
Legal Issues
- Whether Mr Becchio was a person "to be called as a witness" within the meaning of s 323(a) of the Crimes Act 1900 at the time the respondent procured or persuaded him to give false evidence.
- Whether Howie DCJ erred in law by concluding that Mr Becchio did not answer that description until he had provided a statement to the respondent's solicitor, and that no relevant conduct by the respondent occurred after that point.
- How s 323(a) (interference with witnesses) is to be distinguished from s 333 (subornation of perjury) in terms of the temporal status of the person targeted.
Decision
The Court of Criminal Appeal answered the stated question "yes": Howie DCJ did err in law. The majority reasoning, set out by Sully J, held that s 323(a) does not require the targeted person to have been formally identified as a witness at the time of the offending conduct. A person can qualify as one "to be called" before any formal steps in the litigation have been taken in relation to them.
Sully J drew a distinction between the two provisions. Section 323 targets interference with the administration of justice that is already underway or in prospect, by acting upon a person connected, or intended to be connected, to the proceedings as a witness. Section 333, by contrast, addresses the procurement of perjury from a person who is not at the time a witness in any proceedings. The two provisions are complementary rather than mutually exclusive.
On the facts, the conduct outlined in paragraphs 2.3(iii), (iv) and (v) of the stated case, namely the coaching sessions, the visit to the accident scene, and the attendance at the solicitor's office, all occurred at a time when Mr Becchio was someone the respondent intended to call as a witness. That was sufficient to bring the conduct within s 323(a).
Hulme J agreed with the outcome but added a reservation. His Honour expressed the view that for a person to be "to be called" as a witness, that status must be assessed by reference to the intention of someone with actual control or influence over the presentation of the proceedings. It is not enough that the person merely might be called. However, on the specific facts, Mr Becchio clearly satisfied even that stricter formulation, because the respondent himself intended to call him. Hidden J agreed with both Sully J and, on the reservation, with Hulme J, noting the point did not need to be finally resolved on these facts.
Orders Made
- The question posed in the stated case was answered "yes."
- The proceedings were remitted to the District Court with that expression of opinion.
Key Takeaways
- Under s 323(a) of the Crimes Act 1900, a person does not need to have been formally identified or listed as a witness before they can qualify as someone "to be called as a witness." The status can arise earlier, once the relevant intention to call that person is formed.
- The Court of Criminal Appeal confirmed that ss 323 and 333 of the Crimes Act serve distinct purposes: s 323 addresses interference with a person connected or intended to be connected to proceedings as a witness, while s 333 addresses procurement of perjury where no such connection yet exists.
- Howie DCJ's approach, which fixed the earliest possible point of "witness" status at the making of a formal statement to a solicitor, was found to be too narrow and legally erroneous.
- Hulme J's separate analysis suggests that the description "to be called" should be assessed by reference to the actual intention of someone with control over the proceedings, not merely a hypothetical possibility of being called, though all judges agreed this issue did not require final resolution on the facts presented.
- In circumstances where a party recruits, coaches, and prepares a witness to give false evidence, those acts can fall within s 323(a) even though they precede any formal court listing or procedural step in relation to that witness.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 323(a), 327, 333
- Criminal Appeal Act 1912 (NSW), s 5B
Cases:
- R v Danahay [1993] 1 Qd R 271
- Reg v Lansdell, CCA (NSW), unreported, 22 May 1995 (Simpson J)
- Panayiotou and Antoniades (1973) 57 Cr App R 762