STEPHEN JOHN STANTON v JOHN ABERNETHY [1991] NSWCA 258

STEPHEN JOHN STANTON v JOHN ABERNETHY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, CLARKE and MEAGHER JJA 9 April 1991, 9 April 1991

[1991] NSWCA 258

CRIMINAL LAW AND PROCEDURE — JURISDICTION PRACTICE AND PROCEDURE — Information, Indictment on Presentment — charges of giving false evidence — particulars — HELD — it was open to the prosecution to charge the appellant in the manner attempted but that the charges were defective in form.

Gleeson CJ This application which is commenced by summons filed on 18 December1980 brings before this Court for further consideration proceedings that were the subject of an earlier decision in Stanton v Abernethy and Anor (1990) 19 NSWLR 656. I do not intend to repeat anything that I said in my judgment in that matter. However, in a number of respects what I shall now say needs to be understood in the light of the judgment in that case.

Following the earlier decision to which reference has been made the prosecution laid four charges against the appellant, three of which alleged the giving of false evidence before the State Drug Crime Commission and one of which alleged the giving of misleading evidence before the State Drug Crime Commission. The four charges were accompanied by particulars and the details of the charges and the supporting particulars are to be found in annexures to the affidavit of Claudius Bilinsky dated 20 December 1990 and filed in these proceedings.

The primary submission made on behalf of the appellant is one that was apparently also made to the learned magistrate and rejected by him. It was in substance a submission that in the circumstances of the case and in the light of the earlier decision of this Court it is not open to the prosecution to charge the appellant in the manner that has been attempted. What the prosecution has done in relation to each of the four charges is to assert that the appellant in the course of giving evidence before the State Drug Crime Commission in substance made a statement to a specified effect and each charge then goes on to assert the falsity of the statement. In each case the particulars identify a number of questions and answers which, according to the Crown, amount in combination to a single statement in substance to the effect alleged in the charge.