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. Accordingly, no person is to be held guilty of such an offence unless his guilt be strictly proved. A judge may think it probable that the accused did what is charged against him: that is not enough. The law requires that it be proved beyond a reasonable doubt. This imposes a heavy burden upon the prosecution. The effect of it is that sometimes a person who is in fact guilty is acquitted. But it is important to understand that this is not because of any tenderness for the 2 UNREPORTED JUDGMENTS guilty. It is because the law recognizes that mistakes may be made. The rule is made to protect the innocent against wrongful conviction. But if it is to be applied at all it must be applied to all. The unintended result is that sometimes the guilty escape. The standard of proof is high and it is applied in various ways. In some cases, what is in issue is the chain of reasoning to the conclusion of guilt: the question is whether each step in the chain of reasoning has been established. In some cases, what is in issue is the validity of inferences. There may be a number of matters from which, the prosecutor suggests, the inference should be drawn that the accused did what is charged: the question is whether, from circumstantial evidence of this kind, that inference is to be drawn. In cases of these kinds, it must be borne in mind that, as Dixon J said, proof beyond reasonable doubt requires that the prosecution exclude every hypothesis consistent with innocence: see Plomp v R (1963) 110 CLR 234 at 243; Shepherd v R (1990) 170 CLR 573. But in other cases, the issue may be presented differently. Thus, there may be witnesses who swear as to each step or fact in the process of proof. But a reasonable doubt as to guilt may exist if there is such a doubt as to whether the evidence of the witnesses as to a particular step should be accepted. There is, I think, no formula for determining whether the witness's evidence should be accepted as proving that step or fact beyond a reasonable doubt. That must depend upon the degree of subjective satisfaction of the fact finding tribunal. That tribunal will, of course, take into account the evidence supporting the witnesses' evidence or otherwise. But, in the end, the matter is determined by the subjective satisfaction of the truth of what has been said. The present is a case of this kind. Iam not satisfied beyond a reasonable doubt that what Mr Harris said to Mr Bristow was what Mr Perkins has alleged. Shortly before 19 June last, Mr Perkins had informed Mr Harris's solicitors that, in the defamation proceeding, his defence would involve that Mr Harris had written articles about a number of matters and people and that Mr Harris had admitted to Mr Bristow he had written those articles. If that was true, the consequences for Mr Harris could have been serious: it was suggested that some of them could have done harm to Mr Harris for writing the articles. Therefore it was natural that Mr Harris would wish to know if Mr Bristow would support what Mr Perkins had said. At about 10 pm on 19 June last, Mr Harris telephoned Mr Bristow. He spoke to him about what Mr Perkins had said. He asked Mr Bristow about his giving evidence in the defamation proceeding. This is common ground. The dispute is about precisely what Mr Harris said to Mr Bristow in this regard. Mr Perkins' claim is that the relevant part of what was said is as follows: "6. Harris then said to me: 'You'll be in serious trouble if you get involved in giving evidence for Perkins. I've got Perkins nailed and you'll be in serious trouble too if you give evidence for him.' 7. I said: 'What do you mean?' He said: "You'll end up in jail like Perkins if you persist with this. You'll be destroyed.'" It was suggested by Mr Harris, or at least for him, that he did not say that and that what was said represented essentially an attempt to seek from Mr Bristow the assurance that, if he did give evidence, he would tell the truth. There was, it was suggested, no attempt to persuade him not to give evidence. URJ PERKINS v HARRIS (Mahoney JA) 3 The evidence in support of Mr Perkins' version of the conversation was given only by Mr Bristow. He, of course, was the only person, other than Mr Harris, who could speak as to it. Mr Bristow gave both affidavit and oral evidence about the conversation. On his oral evidence alone, I would not be satisfied beyond reasonable doubt that Mr Harris said what Mr Perkins claims he said. To say this is not to cast any reflection upon Mr Bristow. Mr Bristow frankly informed the court that his memory was defective. He said that, at a time after 19 June 1993, he had had a diabetic episode apparently of some seriousness which had caused him to be taken to hospital. Since that time, he said, his memory has been "patchy" and not reliable in the way that it previously was. The evidence that he gave in the witness box and the way in which he gave it provided confirmation of this. In addition, in his oral evidence, Mr Bristow did not say in terms that Mr Harris had said what Mr Perkins claims that he said. He spoke generally as to the telephone conversation. He was not asked to repeat in terms the relevant portion of it and did not do so. He said things which provide support for the view that Mr Harris said to him what Mr Perkins claims but, as I have said, he did not affirm the terms of it. Therefore, if his oral evidence stood alone, I would not find beyond a reasonable doubt that Mr Harris said what is charged against him. But, of course, the oral evidence does not stand alone. It may be accepted that, following the conversation with Mr Harris, Mr Bristow telephoned Mr Perkins' home and, as the result of this, on the following day, Sunday 20 June, Mr Perkins spoke personally with Mr Bristow. Mr Perkins claims, and he is supported in this by Mr Bristow, that Mr Bristow told him what had been said during the conversation, that Mr Perkins took some notes of what Mr Bristow said, and that following this and, it would appear, a subsequent conversation or conversations, Mr Perkins prepared a draft affidavit to be sworn by Mr Bristow. The affidavit was corrected by Mr Bristow in a small respect or respects and, in due course, on 24 June 1993, Mr Bristow swore the affidavit of that date which is now before the court. In that affidavit he records the conversation in the terms now alleged as the basis of the present charge. That affidavit provides strong evidence that Mr Harris said what Mr Perkins now claims he said. The question to be determined is whether, in all the circumstances, it leads to that conclusion beyond a reasonable doubt. It is therefore necessary to determine whether, because the affidavit was prepared shortly after the conversation and sworn shortly thereafter, it is to be accepted as an accurate statement of what the conversation was. Mr Young, for Mr Perkins, submitted that the alternative to finding that the affidavit correctly records the conversation is a finding that Mr Perkins and Mr Bristow deliberately and together concocted a false affidavit. He submits that Mr Tobin QC, for Mr Harris, stopped short of putting to Mr Perkins or Mr Bristow that they did this. Mr Tobin QC accepted that he deliberately refrained from going so far. It may be that in a criminal trial the fact that counsel has refrained from putting to the relevant witnesses that they did a particular thing does not prevent the fact finding tribunal finding that, notwithstanding that, the facts are such; at least, such a possibility may be taken into account in deciding whether there is a reasonable doubt that the alternative view of the facts is correct. But, for the purposes of argument only, I shall assume these matters in favour of Mr Perkins and therefore consider whether the affidavit may be found to be incorrect in this regard upon a basis other than such a conspiracy as Mr Young referred to. 4 UNREPORTED JUDGMENTS In my opinion, there remains a possibility that the version of the conversation contained in the affidavit does not represent what in fact was said. I have come to this conclusion for the following reasons. If the only evidence as to what took place during the conversation were that given orally by Mr Harris and Mr Bristow, I would not be satisfied beyond a reasonable doubt as to what was said. I do not mean by this that I find positively that Mr Harris or Mr Bristow deliberately lied in this regard. I find merely that their evidence, the circumstances of it, and the way they gave it before the court, leave in my mind a reasonable doubt as to its accuracy. Having regard to the manner in which Mr Harris gave evidence and his obvious interest in establishing that the conversation was otherwise than had been deposed to by Mr Bristow, I would not accept his account of it without significant corroboration. No such corroboration exists. Mr Bristow's recollection of what took place, as he frankly admits, is based upon a defective memory and what he said in the witness box confirms this. In addition, he has admitted to convictions for serious offences. These, as he not merely admitted but asserted, were based upon his adherence to sets of facts which were false. (It is not necessary to deal in detail with what he said: his assertion has been that his pleas of guilty in criminal proceedings were based upon versions of facts which, he asserts, he knew were not accurate). It is therefore understandable that, before accepting his evidence to prove a matter beyond a reasonable doubt, a court should require corroboration of what he has said. In addition, it is clear that Mr Bristow's account in his affidavit of what took place is not a full statement of the conversation. In evidence he conceded that Mr Harris and he may have said other things which were relevant in understanding what was deposed to in the affidavit. He accepted, at the least as a possibility, that, as a consequence of what was said between them, Mr Harris said, in effect, that he wanted Mr Bristow, if called as a witness, to tell the truth and that he would be satisfied if he did. There is a further matter of assistance in determining what was said during the conversation. The claim made by Mr Perkins and Mr Bristow was to the effect that what was said amounted to a threat to Mr Bristow as to the consequences of his giving evidence. It is, as I have said, not necessary to conclude whether, to constitute the offence in question, it is necessary that there be a threat to the potential witness. But in this case, the case advanced for Mr Perkins is that there was. It is the likelihood of that which is to be determined. It is, I think, doubtful, in all the circumstances, that Mr Harris would have threatened Mr Bristow. It was, I think, common ground between the parties to this proceeding that Mr Bristow is a person whose purpose has been to establish a reputation of violence: at least, his reputation, as cultivated by him, is such that he asserts that no one would lightly make threats to him. That is what was put forward by him and by Mr Perkins and, I think, accepted for Mr Harris. This, I think, is a factor giving rise to a doubt that Mr Harris would have said to Mr Bristow something which in fact amounted to a threat to him if he gave evidence. At least, in the context of the evidence as I have seen it, I have such a doubt. It may be that what was said, though constituting a warning of the possible consequences of giving evidence, did not amount in terms to such a threat as the affidavit refers to. But if what was said was not a threat, then that which was deposed to by Mr Bristow in the affidavit is not a completely accurate statement of what took place. Therefore, the affidavit is not a completely reliable statement of what took place and therefore there would, in my opinion, be a doubt as to precisely what was said. As I have said, it may be that it is not necessary, in order URJ PERKINS v HARRIS (Handley JA) 5 to establish the present offence, to prove that what was said was precisely what was charged: proof that it was essentially what was charged may be sufficient. But once the complete accuracy of the affidavit be put aside, then there is, in my mind, a significant doubt as to precisely what was said. For these reasons, I am of opinion that the charge has not been established beyond reasonable doubt. In coming to this conclusion it is proper to record that I do not find that any of the witnesses has lied to the court. It is not necessary that such a finding be made. It is therefore proper to record that my conclusions in this matter are based simply upon the fact that, whether it be probable that it took place as alleged, the conversation alleged has not been proved beyond a reasonable doubt. It is proper to record also that no objection has been taken to the form of the present proceeding and that the parties have dealt with the charges by reference to the substance of the allegations made. The motion should be dismissed with costs. Handley JA The claimant (Mr Perkins) commenced these proceedings by notice of motion filed on 2 July 1993 seeking declaratory and other relief in respect of an alleged contempt of court by the opponent (Mr Harris). The proceedings arise out of a pending defamation action in respect of alleged imputations against Mr Harris in the book "The Gambling Man" written by Mr Perkins. The charge against Mr Harris was that he was guilty of contempt of court: "... in that on 19 June 1993 by telephone he spoke words to Charles John Bristow which were 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 in defamation proceedings No 10735/1991 between the plaintffl and the first defendant". The conduct charged would, if proved to the criminal standard, establish a criminal contempt of court by Mr Harris. See Borrie and Low "Law of Contempt" 2nd ed 1983 268 to 272. Australian Supplement (1988) at 66 to 68, Miller "Contempt of Court" (1989) at 208 to 210. See also Miller v TCN Channel Nine Pty Ltd (CA NSW 16 September 1993 unreported). The background facts were not in dispute. On 30 June 1992 Mr Perkins filed in the defamation proceedings 34 pages of particulars of truth. Mr Harris's application to strike out some or all of these particulars was heard by Ireland J on 13 May 1993. The hearing did not finish and his Honour directed Mr Perkins to file written submissions by 3 June. Mr Perkins who was appearing in person filed and served his written submissions on Friday 18 June together with a document headed "Further Particulars of Truth". A copy of both documents was delivered to Mr Harris at his home the following day about 6 pm. The submissions referred to defamatory articles published anonymously in "The Muckrake", "Horse Talk" and "The Launderer" allegedly written by Mr Harris and stated: "T have evidence that the Plaintiff wrote, contributed to and published these articles, ie, he admitted to me that he did so and he also made admissions to private inquiry agent Tim Bristow (see Further Particulars of Truth), and that is the evidence on which I rely... " The Further Particulars of Truth twice referred to Mr Bristow. The first passage read: "The plaintiff in 1985 showed me typewritten stories which he said he had written on...,..., and... a committeeman of the AJC. Articles on these persons later appeared in the anonymous underground sheet The Muckrake and I recognised 6 UNREPORTED JUDGMENTS them as being identical to the articles the plaintiff had shown to me and admitted he had written, saying to me words to the effect of: 'Seeing you won't run this in your column, I've had to write it for the real press'. The plaintiff admitted to private inquiry agent Tim Bristow that he had written articles for The Muckrake, Horse Talk and The Launderer including the ones on... and.... The plaintiff said to Bristow: 'Yes, I fixed up that crook... in The Muckrake, and I gave a serve to...,... and a few others like.... But Tim, don't connect me with any of the stories I did on Mr... or Freeman or you'll get me killed"'. The second passage read: "The plaintiff falsely accused AJC Committeeman... of corrupt conduct by associating with criminals in an anonymous article which the plaintiff admitted to private inquiry agent Tim Bristow he had written in The Muckrake underground scandal sheet in 1988, thereby breaking Australian Racing Rule 175(GG)." Mr Harris said that he received these documents after he returned home from the races. Later that evening about 10 pm he rang Mr Bristow. Ms Suzanne Ellis, Mr Bristow's de facto wife answered the phone. Mr Harris asked to speak to Mr Bristow and she put him on. Mr Harris then had a conversation with Mr Bristow. The terms of this conversation are in dispute and this is the central issue in the proceedings. Following this conversation Mr Bristow returned to his guests. After they left about 11 pm he telephoned Mr Perkins at his home and spoke with Mrs Perkins. An arrangement was then made for Mr Perkins to visit Mr Bristow at his home the following day. Mr Perkins did so and took details of the telephone conversation and recorded these, as he said, on "a scrap of paper". He then prepared a draft affidavit which was shown to Mr Bristow and amended by him. The affidavit as amended was retyped and sworn by Mr Bristow on 24 June. These proceedings were commenced on 2 July. The evidence for Mr Perkins comprised the affidavit of Mr Bristow, a further affidavit by him sworn 15 July, his own affidavit of 1 July, and an affidavit by Suzanne Ellis of 6 October. When the proceedings came on for hearing on 7 October both parties were represented by counsel. The claimant's affidavits were read and objections ruled on. Mr Perkins was then extensively cross examined particularly in relation to the defamation proceedings and his role in the preparation of Mr Bristow's principal affidavit. Although, as one would expect, his cross-examination was skilfully conducted, it was in the main directed to matters which were peripheral to the present proceedings. However Mr Tobin QC did bring out the significance of the references in the documents to Mr Bristow and of evidence he might give in the defamation proceedings in support of the Further Particulars of Truth. He also established that at some stage Mr Perkins discarded both the scrap of paper on which he had noted details of the conversation and the typewritten draft. Mr Bristow was then cross examined, again with considerable skill. He was asked many questions about the alleged events referred to in the Further Particulars of Truth, his association with Mr Perkins, when they discussed those events, his association with Mr Harris, his reputation for violence and his criminal convictions, all being matters which were either peripheral to the central issue or went to his credit. He said that his health had deteriorated in the past month and so had his memory. He was then cross-examined about peripheral aspects of the telephone conversation of 19 June. He first said he could not remember any conversation that evening about a horse, Lightning Ben, he once URJ PERKINS v HARRIS (Handley JA) 7 owned, and then said that he was certain they had not discussed this horse. He first denied saying that it was unfortunate that Mr Perkins and Mr Harris had fallen out and then said he could have said that. (79). Later he said he did not remember saying this (92) He agreed that he told Mr Harris that he would be telling the truth if he had to give evidence, then said he could have said that, and that Mr Perkins was a friend of his. He said he could not remember saying to Mr Harris that he would talk to Mr Perkins and see if the "thing" could be patched up. (92). None of these matters were referred to in Mr Bristow's affidavits. The transcript then records: "Q. And did Harris say to you "That's all I want to hear - that you would be telling the truth?' (Mr Bristow's answer was interrupted from the bench. The question was read back. No answer was recorded.) Q. Perhaps if I can just go back. In the conversation that you are giving evidence about with Mr Harris, which I will come back to clarify in a moment, but I understand your last answer was that he could have said something like 'That's all I want to hear'? A. I terminated the conversation. TOBIN: There was an answer to that last question. (Discussion) Q. When I was asking you and you said, did you say to him that you would be telling the truth if it came to giving evidence, and you said that, either in those words or words to the same effect, you said that you would be - you agree with that? A. Yes. I indicated to him that I was on notice and I could be called to give evidence in the case. I also said to him that I did not think it was right to discuss this and I also said to him I did not like talking on phones. Q. I want to clarify something. You heard the evidence read to you, you have heard the reporter read the evidence that you just gave? A. Yes. Q. And you say, in that evidence and I don't want you to do other than agree or disagree with this - you said in your evidence that you told Harris that you would be telling the truth. Is that right? A. When I'm in a position to tell the truth I will always tell the truth and I have got no reason not to tell the truth so naturally, I did not have to tell him that, but I made it clear that Perkins was a friend of mine and I would tell the truth... Q. In that evidence you said words to the effect that you told Harris, during the phone call 'I will be telling the truth if it comes to giving evidence' or similar sorts of words - you said that didn't you? A. Yes I would have. I can't remember, you asked me if I could remember, I can't remember that I went to that extent in telling him that but it was taken for granted I would be telling the truth when I told him that I was a friend of Perkins and that was it. Q. And then I asked you 'Didn't he say something like 'That's all I want to hear' and you said' I could have said that'. Is that correct? YOUNG: With respect that wasn't said. MAHONEY JA: Is that right that he said 'I could have said that'? TOBIN: I believe so. (The original question at the start of this quotation was then read back). Q. You see, you answered that last question by saying 'I could have said that'. (Discussion followed) Q. Mr Bristow, in answer to the question "Didn't Mr Harris say that's all I want to hear' and pausing there, you remember that question, it has just been read - do you remember the question? A. I heard what was said. 8 UNREPORTED JUDGMENTS Q. You said, didn't you, in answer to me in the witness box, words to the effect 'I could have said that'. You said words to the effect 'He could have said that', isn't that your evidence? A. I said that just a moment ago. Q. And I want to clarify - HE said did he not "That's all I want to hear'? A. I cannot remember him saying that and I did, at that stage, have a strong memory. Q. But you say he could have said it, don't you? A. I don't think he did say it. Q. Why did you say, in the witness box -? A. Because he went on to talk Q. Why did you say in the witness box a few moments ago 'He could have said that'? A. That was not the question you put to me. Q. Look Mr Bristow, a few moments ago in the witness box you agreed with me that in answer to the question "Didn't Mr Harris say to you "That's all I want to hear' you said 'I replied something like' I am sorry - 'HE could have said that'. A. Your Honours, I did not say that I agreed to him saying 'That's all I want to hear' because that is not what he said'. (emphasis supplied) Mr Bristow's answers during this part of his cross examination were consistent with his other evidence and in my opinion don't assist the opponent. In the context of the first question in the passage quoted the answer 'I could have said that', if given, could only relate to that part of the question which referred to Mr Bristow telling Mr Harris that he would be telling the truth. Later in the passage there was a double question which included the words "I could have said that" and "He could have said that", and as the cross examiner recognised in the next question Mr Bristow's answer needed to be clarified. In my opinion this part of the cross examination did not secure an admission from Mr Bristow that Mr Harris had told him during the telephone conversation that all he wanted to hear was Mr Bristow say that he would be telling the truth if he gave evidence in the defamation proceedings. Later he said that he was a diabetic and that during September he had been admitted to Mona Vale Hospital as a result of being put on a drug to which he was allergic and that he had been very sick and that this had affected his memory. In later cross examination he said that he took the conversation with Mr Harris as a threat (87, 92) and that he was concerned about what Mr Harris had told him (87, 93, 94, 95) and that this was why he had rung Mr Perkins' home later that evening. When asked again whether he had discussed with Mr Harris his former horse "Lightning Ben" he said "I was not discussing that on the Saturday night. The conversation was short, I had visitors and I was surprised to find him ringing me to challenge me about signing an affidavit or being connected with an affidavit put together by Kevin Perkins". After Mr Bristow had completed his evidence counsel for the claimant closed his case. Mr Tobin QC then submitted that there was no case to answer and in the alternative invited the Court, as the tribunal of fact, to stop the case. The Court rejected these applications. Mr Tobin then called Mr Harris. He said that when he received the documents he had "a cursory glance" before going out to dinner and that he "noticed the name of Tim Bristow saying certain things about me and Kevin Perkins". (100) Mr Harris said he returned from dinner at 8.45 pm and then walked his dog. While doing so he thought about the documents and wondered whether Perkins had put words into Mr Bristow's mouth. He decided to ring Mr Bristow that evening and ask whether he did say those things to Mr Perkins. He then gave his version of the conversation which ran, without interruption from at 102 to 104. He said that he explained that he was ringing because he had received a document that day in which Mr Bristow's name was mentioned "as SAYING CERTAIN URJ PERKINS v HARRIS (Handley JA) 9 THINGS about me". Shortly after that he said "I want to get a document and read out THE WORDS HE HAS PUT IN YOUR MOUTH and I want you to tell me whether you said THOSE THINGS to him. If it is alright I will go and get the document". He then obtained the document, returned to the phone, and while speaking to Mr Bristow attempted to locate the relevant passages, turning over the pages for this purpose. He was unable to do so and said "Look Tim I am terribly sorry. I can't find the references to you". Mr Bristow then said "You needn't worry, if I am going to be giving evidence, any evidence I give I will be telling the truth" and Mr Harris said "That is all I want to hear'. According to Mr Harris he then asked Mr Bristow about his mare Irish Belle and her progeny Lightning Ben. After that Mr Bristow said that he wanted to get Mr Perkins and Mr Harris together to "patch up the problem" but Mr Harris said that things had gone too far and that if he wanted to speak to Mr Perkins he would do so without his, Mr Harris', blessing. The conversation concluded with Mr Bristow asking Mr Harris for his phone number, saying that he would ring Mr Harris on the Monday or Tuesday and Mr Harris saying "You'd better give me a ring anyway because I might find the damn reference because when I do I will put the words to you". Later in his evidence in chief he said that he was not concerned about Bristow giving evidence because he thought that the relevant part of Mr Perkins' defence and particulars would be struck out altogether "which meant that Tim Bristow would not have to be called to give evidence... the only thing that concerned me when I rang Mr Bristow was to see whether in fact what Mr Perkins had recorded in the document was correct, that Bristow had told him these things." (105) He twice said he had rung to find out whether Mr Bristow had in fact said "these things" to Mr Perkins and then said: "At that stage I had only had a cursory look at the document and I was sure Tim Bristow's name occurred. When I first spoke to Tim Bristow I thought it was more under Imputation A in my imputations and the reason for that was (Mr Perkins) has another admission by me under there which is false as well". He concluded his evidence in chief by saying that he thought Mr Bristow might be a bad witness for whoever called him. (106). Mr Harris had been in court throughout but significant parts of this evidence were not put to Mr Bristow. These omissions included his statement that he said to Mr Bristow that if it was alright he would go and get the document and "read out THE WORDS HE HAS PUT IN YOUR MOUTH. I want you to tell me whether you said THOSE THINGS to him", the fact that Mr Bristow agreed they had not spoken since 1982 or 1983, that the last time they had met was at Warwick Farm after Irish Belle had raced, the conversation while Mr Harris was turning over the pages in the documents trying to find the relevant passages, the references to the AJC Inquiry into Fine Cotton, Michael Sayers, Bertie Kidd, Mr Bristow's statement that Mr Perkins was infatuated with the Waterhouses, Mr Harris' statement that if Mr Bristow spoke to Mr Perkins about a reconciliation that would be without his, Harris' blessing, Mr Bristow's request for Harris' telephone number, his statement that he would ring on Monday or Tuesday, and Mr Harris' request that he do so. Mr Harris was cross examined and re examined. 'The opponent called no other witness and there was no case in reply. At the end of the evidence the Court heard outline submissions from both counsel, gave directions for the filing and exchange of written submissions, and reserved its judgment. 10 UNREPORTED JUDGMENTS At that stage, without the benefit of the second day's transcript, and without full argument, my impression was that the case against Mr Harris had been proved beyond reasonable doubt. Had I been a juror I would then have convicted. The essential question is whether Mr Harris made a threat to Mr Bristow over the telephone that Saturday evening substantially as charged. Mr Bristow's reaction that night and his subsequent conduct were entirely consistent with his general version of the conversation. There was no reason for Mr Bristow to have reacted as he did if the phone conversation had been in the terms alleged by Mr Harris. Although some of Mr Bristow's evidence about peripheral matters may not have been persuasive he was not shaken about the critical parts of the conversation. The Court might fairly conclude that a number of matters may have been referred to in addition to those in his affidavit, but I do not consider that any lack of certainty about these matters creates a reasonable doubt about the critical evidence. Even if all those matters (apart from "That's all I wanted to hear") were mentioned, they would not exculpate Mr Harris. On the other hand Mr Harris' long and detailed version of the conversation did not, in my opinion, ring true. His evidence was given with hardly a pause and as if with total recall ("that is exactly what happened" 109). Parts of his evidence were quite improbable. He said he was not worried about evidence that Mr Bristow might give but rang him at 10 pm on a Saturday night. He said he hadn't read the documents carefully before ringing Mr Bristow. Having been unable to locate the relevant passages that night he did not ring back the next morning. On his version Mr Bristow promised to ring back and never did so but Mr:Harris didn't ring him again either. According to Mr Harris the sole purpose of the phone call was to ask Mr Bristow whether the particularised conversations were true or whether Mr Perkins had put words in his mouth, but this purpose was never achieved, and the call was never followed up. Mr Harris' conduct in the next few days is quite inconsistent with his version. Why didn't he ring Mr Bristow back? However these impressions must be tested against a careful reading of Mr Harris' evidence. Early in his cross examination he said that at 5 pm on the Saturday "I was flicking through the document" (107, 111). He said "I am not prepared to say at 5 o'clock on Saturday I saw (Mr Bristow) in CL17. I saw his name on at least three different occasions". These are the passages from the documents previously quoted in this judgment, the second of which related to contextual imputation 17 relied on by Mr Perkins in the defamation proceedings. The last two references contained the only details of the alleged conversations between Mr Harris and Mr Bristow. The following evidence was then given: "Q. What you were concerned about was that this material went to CL17? A. When you say this material, what material are you talking about? Q. The material that you had said certain things to Mr Bristow A. That is the only thing I was concerned about, was (-) that was false." He denied that he had "completely digested the document" (109), said that if he had understood the document "'it is dubious I would be worried about it" (109) and said that he was looking for the reference to quote it verbatim (111). He denied being aware during his conversation with Mr Bristow that the references he was looking for were in the Further Particulars of Truth (111), and said that he was not then conscious there was such a document (112). Although he was then aware of "a particular assertion that at some time (he) had told Mr Bristow that (he) had been responsible for articles in the three publications in relation to URJ PERKINS v HARRIS (Handley JA) 11 four named people" he denied that he had read this before he spoke to Mr Bristow, and said he "was not conscious of that" (112). This evidence was not only implausible. It was also totally inconsistent with other parts of his evidence. In chief he was asked what he did when he read the documents. He said he was disturbed by "the conversation" Tim Bristow had reported to Mr Perkins which was both false! and in a false time frame. This evidence then occurred: "Q. As a result of that what did you do? A. When I first became AWARE of it. Q. When you read the reference what did you do? A. Nothing. I was at dinner." (101) Mr Harris did not suggest that he took the documents with him to dinner. The last answer must be understood as stating that he did nothing when he "read the reference" because he then went out to dinner. Then when he rang Mr Bristow he said "I have just received a document in which YOUR NAME IS MENTIONED AS SAVING CERTAIN THINGS ABOUT ME... I want to get a document and read out the words he has put in your mouth. I want you to tell me whether you said THOSE THINGS to him." (102) He said more than once that he had rung Mr Bristow to see whether he had told Mr Perkins the things recorded in the document. (105 3 times, 107, 108, 111). When cross examined about whether Mr Bristow said that he would tell the truth Mr Harris, referring to his own thinking said "I know what is in Mr Perkins' document is false". (110 twice). Mr Harris then gave this further evidence: (112) "Q.... You say you had in your mind a particular assertion that at some time you had told Mr Bristow that you had been responsible for articles and publications in relation to four named people? A. Correct. Q. So YOU HAD READ THAT before you spoke to Mr Bristow on the telephone? A. No.... you said when I spoke to Mr Bristow I was shown a reference to him mentioning a conversation with me with four other names mentioned or something to that effect. 1 WAS NOT CONSCIOUS OF THAT. I may have been conscious of this document admissions to private inquiry agent Tim Bristow.... I was having a cursory glance in my mind. The words had stuck in my mind were the mention of Tim Bristow." (emphasis supplied) Mr Harris' evidence that he noticed in the document "the name of Mr Bristow saying certain things about me", his references to "the conversation" in the particulars, to Perkins "putting words" in Mr Bristow's mouth, his wish to get the document and "read out the words" to see whether Mr Bristow had said "those things", and his concern that "those things" were false, convince me beyond reasonable doubt, despite his denials, that Mr Harris had read and understood the various references to Mr Bristow in the documents before telephoning him. Moreover this is altogether probable giving his interest, his concern, the time available for reading the documents, and his decision to ring Mr Bristow that night. I am the more persuaded by these matters because Mr Bristow was not cross examined to suggest that there was a break in the conversation while Mr Harris went away to get the documents, or that on his return he told Mr Bristow that he was flicking over the pages, trying to locate the relevant passages but was unable to do so. On Mr Harris' version these events were central to the whole conversation. 12 UNREPORTED JUDGMENTS I only add that Mr Harris denied being concerned about Mr Bristow being called as a witness (105) and said he thought Mr Bristow would make a bad witness (106) but was unable to give any credible explanation in these circumstances for bothering to ring Mr Bristow at all (105). In my opinion a declaration should be made that the opponent was guilty of contempt of court as charged and the proceedings should be adjourned to a date to be fixed to enable the opponent to call evidence on penalty and to make submissions on that issue. Powell JA It is the fact that the conduct, of which Mr. Harris stands charged by Mr Perkins, would, if established to the appropriate standard, fall within that class of conduct - words or acts obstructing, or having a real tendency to obstruct, the due administration of justice known as "criminal contempt" - a misdemeanour punishable either on indictment by fine or imprisonment, or, in the superior courts of record by the summary process of attachment or committal where an indictment is not calculated to serve the ends of justice - which has dictated the conclusion to which I have come as to the proper disposition of this matter. I say this since, although there appears still to be some debate, in this country (see, for example, Iris Australia Pty Ltd v Kesby [1983] 1 NSWLR 127 and cases there cited; cp Attorney General v Newspaper Publishing Plc [1988] 1 Ch 333, 362 per Sir John Donaldson MR (as he then was) as to what appears now to be the position in England), as to the standard of proof appropriate to be applied in cases of an alleged "civil contempt" - or contempt in procedure - it is clear that, when, as here, the case is one of an alleged "criminal contempt", the burden of proof which is to be discharged by the complaining party is that appropriate to all criminal proceedings, that is, proof beyond reasonable doubt. The "Statement of Charges" attached to, or accompanying the Notice of Motion filed by Mr Perkins is as follows: "Tt is alleged that the Plaintiff... is guilty of contempt of court in that on 19 June 1993 by telephone he spoke words to Charles John Bristow which were 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 in defamation proceedings... between the Plaintiff and the First Defendant. the Particulars of the charges being (inter alia): "On 19 June 1993 at about 10 pm the Plaintiff telephoned Charles John Bristow (known as Tim), and had a conversation with him as follows: Harris: 'You'll be in serious trouble if you get involved in giving evidence for Perkins. I've got Perkins nailed and you'll be in serious trouble too if you give evidence for him. * Bristow: 'What do you mean?' Harris: 'You'll end up in jail like Perkins if you persist with this. You'll be destroyed.'" The principal Affidavit filed in support of the Notice of Motion was a short one - containing some 8 paragraphs - sworn by Mr Bristow on 24th June 1993, in which Affidavit Mr Bristow - in para6 and para7 - deposed to that part of the alleged conversation of 19th June 1993 which is included in that part of the Particulars which I have set out above. That Affidavit was drafted, and engrossed, by Mr Perkins, who claims that, in drafting the Affidavit, he relied upon notes - which, together with earlier drafts of the Affidavit, he later destroyed (see Transcript at 16 to 18) - of a conversation which he had with Mr Bristow on 20th URJ PERKINS v HARRIS (Powell JA) 13 June 1993, when, following a telephone conversation which he had on the previous evening, he went to see Mr Bristow at his home (see Transcript at 10, 13, 15 to 18). Although it is common ground that Mr. Harris did telephone Mr Bristow at about 10.00 pm on 19th June 1992, Mr Perkins (Transcript at 104 and 105) denied having used the words attributed to him by Mr. Bristow in his Affidavit, and, instead (Transcript at 102 to 106) gave an extended, and circumstantial, account of the conversation which he claimed to have had with Mr Bristow at the time. This being so, and the conversation which Mr Harris claimed to have had with Mr Perkins, which conversation, if it occurred, although, in my view, unwise, would, in my view, not have represented constituting "criminal contempt", the present application must fail unless one is satisfied that the particular conversation deposed to by Mr Bristow in his Affidavit took place. Not surprisingly, in the circumstances, Mr TK Tobin QC, who appeared with Mr DR Campbell, for Mr Harris, mounted a vigorous, and sustained, attack upon Mr Bristow's general credibility as a witness, and upon the credibility of Mr Bristow's evidence as to the conversation. Although there are some features of what seems clearly to have occurred - as, for example, that Mr Harris did telephone Mr Bristow on 19th June 1993; that Mr Bristow - who does not appear to be a man who would easily be frightened - then telephoned Mr Perkins; that, on the following day, Mr Perkins went to see Mr Bristow at his home; that Mr Perkins thereafter drafted, and engrossed, the Affidavit which Mr Bristow was to swear on 24th June 1993 - which provide support for Mr Bristow's version - in his Affidavit - of what occurred, the oral evidence (see, for example, Transcript at 79 to 82) which Mr Bristow gave at the hearing - quite apart from the fact that much of it was rather vague - tended to suggest that the conversation which Mr Harris had with Mr Bristow was both rather longer than was suggested by Mr Bristow in his Affidavit and rather less threatening than Mr Bristow's original version suggested. In the circumstances, and notwithstanding that my original disposition was to believe that the conversation between Mr. Harris and Mr Bristow was substantially in the terms to which Mr Bristow originally deposed, I am not persuaded beyond reasonable doubt that this was so. This being so I am of the opinion that the Motion should be dismissed with costs. Motion dismissed with costs. Counsel for the Claimant: JR YOUNG Instructed by: KARAGEORGE AND CO Counsel for the Opponent: TK TOBIN QC/D CAMPBELL Instructed by: VEREKERS