PERKINS v HARRIS [1994] NSWCA 251

PERKINS v HARRIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and POWELL JJA 7 and 8 October 1993, 6 June 1994 [1994] NSWCA 251

CONTEMPT PROCEEDING — Allegation of words spoken to threaten or to dissuade a witness from giving evidence in defamation proceeding.

HELD: (Mahoney and Powell JJA, Handley JA dissenting) speaking of words alleged not proved beyond reasonable doubt.

STANDARD OF PROOF discussed.

ORDER

Motion dismissed with costs.

Mahoney JA Mr Arthur Harris has sued Mr Kevin Perkins for defamation. At the time here in question, the proceeding had not yet been heard. It was at least possible that Mr Charles John Bristow would be called as a witness for Mr Perkins.

On 19 June 1993 Mr Harris spoke on the telephone to Mr Bristow. Mr Perkins claims that what he did was "intended or likely or calculated or had a tendency to influence threaten or dissuade the said Charles John Bristow in relation to the giving of evidence by the said Charles John Bristow". He claims that that is a criminal offence. Mr Perkins has brought the present proceeding against Mr Harris, seeking that he be punished for that offence.

The facts are stated in detail by Handley JA. My conclusions are:

1. For Mr Perkins to succeed, two things must appear: first he must prove - and prove beyond a reasonable doubt - that Mr Harris said to Mr Bristow what Mr Perkins alleges he said; and, second, what Mr Harris said must constitute in law a criminal offence, of the nature of an attempt to interfere with the course of justice.

2. am not satisfied to the required extent, namely beyond a reasonable doubt, that Mr Harris said what Mr Perkins claims he said.

3. Accordingly, Mr Perkins' application must be dismissed.

The allegation made by Mr Perkins is a serious one. To use threats or otherwise improperly to persuade a person not to give evidence in a court proceeding is a crime. It is sometimes called contempt of court. The essence of it is the improper interference with the course of justice: The Prothonotary v Collins (1985) 2 NSWLR 549; see also Registrar of the Supreme Court, Equity Division v McPherson and Ors [1980] 1 NSWLR 688 at 696D and 697F - 700F; European Asian Bank AG v Wentworth and Ors (1986) 5 NSWLR 445 at 450 and 451. A person who does this may be sent to gaol.