New South Wales Court of Criminal Appeal CITATION : Regina v Wilfred Lawson REID [1999] NSWCCA 355 revised - 16/11/99 FILE NUMBER(S) : CCA 60229/99 HEARING DATE(S) : 21 October 1999 JUDGMENT DATE : 12 November 1999 PARTIES : Regina Wilfred Lawson Reid JUDGMENT OF : Sully J at 1; Hulme J at 29; Hidden J at 34 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 96/42/0231 98/42/0492 LOWER COURT JUDICIAL OFFICER : Howie DCJ COUNSEL : P. G. Berman - Crown C. A. Pike - Respondent SOLICITORS : S. E. O'Connor - Crown Westside Lawyers - Respondent CATCHWORDS : Criminal law - case stated by District Court Judge for opinion of Court of Criminal Appeal - Crimes Act 1900 (NSW) s.232(a) - person "to be called as a witness" - principles applicable in defining such a person. ACTS CITED : Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) R v Danahay [1993] 1 Qd. R 271 CASES CITED: Reg v Lansdell CCA (NSW) unreported, 22 May 1995 Panayiotou and Antoniades (1973) 57 Cr. App.R 762 DECISION : Question answered 'yes'. Proceedings remitted to District Court with that expression of opinion. IN THE COURT OF CRIMINAL APPEAL 60229/99 SULLY J HULME J HIDDEN J 12 November 1999 REGINA v Wilfred Lawson REID JUDGMENT 1 SULLY J: Before the Court is a case stated, pursuant to section 5B of the Criminal Appeal Act 1912 (NSW), by his Honour Judge R. N. Howie QC of the District Court of New South Wales. His Honour has stated the case at the request of the Director of Public Prosecutions (NSW). 2 His Honour states in the case, and as follows, the relevant facts: "2. Facts 2.1 On 25 January 1996 the appellant was charged with the offences of negligent driving, offensive language and assault arising out of a motor vehicle accident at Moruya on 13 January 1996. 2.2 The appellant pleaded not guilty but was convicted and fined on each charge following a hearing before the Local Court at Moruya on 24 May 1996. During the course of the hearing Alexander John Becchio was called as a witness in the case for the appellant and gave evidence exculpatory of the appellant. 2.3 Evidence was led before me on behalf of the Crown from which it would be open to conclude as follows: (i) At some time before the matters referred to in paragraphs 2.1 and 2.2 came on for hearing before the Local Court the appellant approached Mr. Becchio, who was a personal friend of his at the time, and said: "I need a witness, what do you say Becchio?" Becchio replied; "Well, I don't like it, but yes, seeing you're a good friend I'll be a witness for you." (ii) In fact, Mr. Becchio had not observed any of the incidents which gave rise to the charges referred to in paragraph 2.1. (iii) Soon after, Mr. Becchio had a conversation with the appellant at the appellant's home, allegedly in the presence of the appellant's wife, in which the appellant indicated to Mr. Becchio the evidence which he would be required to give as a witness. (iv) Shortly after, the appellant, the appellant's wife and Mr. Becchio travelled to the scene of the accident and further discussed the facts and circumstances of the collision in order that Mr. Becchio would be able to give plausible evidence in relation to the matter. (T.13-14, 38) (v) Some time later Mr. Becchio attended the office of the solicitor who was acting for the appellant and made a statement of the evidence which he was able and willing to give. (vi) As above stated in paragraph 2.2 at the Local Court hearing on 24 May 1996 Mr. Becchio gave evidence on behalf of the appellant. Notwithstanding that evidence, the appellant was convicted and fined in respect of each charge. (vii) Following the Local Court proceedings the appellant and Mr. Becchio had a falling out over an unrelated matter. They later made up to some extent. However when Mr. Becchio was informed by the appellant that he was going to appeal to the District Court against his convictions referred to in paragraph 2.2 he became upset and concerned that he would have to give false evidence again. Therefore, on 10 February 1997 Mr. Becchio attended Bateman's Bay Police Station and informed Police that he had committed perjury in the Local Court proceedings at Moruya referred to in paragraph 2.2 He participated in an electronically recorded interview and gave full details of the perjury. Mr. Becchio subsequently was charged with one count of perjury, to which he pleaded guilty at Moruya Local Court on 7 November 1997. He was convicted and fined for this offence. (viii) I noted the appellant subsequently withdrew his appeals to the District Court against the convictions referred to in paragraph 2.2 when those proceedings came before me (with the proceedings in question) at the Moruya District Court on 17 February 1999. 2.4 As a consequence of the disclosures by Mr. Becchio the appellant was charged with the offence, particulars of which are set out in paragraph 1. 2.5 During the course of the proceedings before me I sought and received submissions from Counsel as to whether the evidence in the matter, if accepted by me, could properly form the basis for proof of an offence under s.323." 3 The "appellant" to whom Howie DCJ refers in the foregoing statement of facts, is Mr. Wilfred Lawson Reid. The charge preferred against Mr. Reid, being a charge in respect of which he was convicted at the Wollongong Local Court on 12 November 1998, was a charge laid under section 323(a) of the Crimes Act 1900 (NSW). The terms of the charge were as follows: "That Wilfred Lawson Reid on 24th May 1996, at Moruya, did with intent, cause and persuade Alexander John Becchio, a witness, to give false evidence as a witness in a judicial proceeding." 4 Mr. Reid appealed to the District Court against his conviction and against the sentence imposed upon him as a result of his conviction. It was this appeal that came before Howie DCJ, and which gives rise to the present stated case. 5 On 18 February 1999 Howie DCJ indicated that his Honour was of a mind to allow the appeal and dismiss the information. His Honour published reasons for that proposed judgment. Before his Honour actually pronounced an order dismissing the appeal, he was asked to state the present case. 6 The essential reasoning of Howie DCJ is set out in the stated case, and as follows: "Grounds of Judgment 3.1 In my opinion s.323 addresses the situation where a person intentionally tries to interfere with the administration of justice which is underway, by attempting to interfere with a person who is then a witness or who is intended at the time of the interference to be a witness in judicial proceedings. 3.2 On the other hand s.333 of the Crimes Act deals with subornation of perjury and addresses the situation were the person is not, at the time of the subornation, a witness. 3.3 The question to be determined, therefore, was whether Mr. Becchio was a person to be called as a witness for the purposes of s.323(a). 3.4 I rejected a submission for the Crown that from the moment Mr. Becchio was asked to give false evidence for the appellant and agreed to do so, that he thereupon became "a witness" in the judicial proceedings. In my opinion the earliest stage at which he could be considered to be such a witness occurred when he provided a statement to the appellant's solicitor. There was no evidence before me of any act done by the appellant in respect of Mr. Becchio, or the evidence that he might or might not give, after he was a witness to be called in the proceedings. 3.5 I concluded therefore that Mr. Becchio was not a witness, for the purposes of s.323(a), at any time when the appellant was said to have procured, persuaded, induced or caused him to give false evidence." 7 Section 323 of the Crimes Act provides, so far as is at present relevant, as follows: "323. A person who does any act: (a) intending to procure, persuade, induce or otherwise cause any person called or to be called as a witness in any judicial proceedings to give false evidence or withhold true evidence ……………..; is liable to imprisonment for 7 years." 8 Section 333 of the Crimes Act provides, so far as is at present relevant, as follows: "333(1) A person who procures, persuades, induces or otherwise causes a person to give false testimony the giving of which is perjury is guilty of subornation of perjury and liable to imprisonment for 7 years. ……………………..:" 9 An offence of perjury is created by section 327 of the Crimes Act. It is there provided, so far as is at present relevant, as follows: "327(1) Any person who in or in connection with any judicial proceedings makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to penal servitude for 10 years…………………………." 10 Section 323 appears in Division 3 of Part 7 of the Crimes Act; and sections 333 and 327 appear in Division 4 of the same Part. Division 3 is headed: "Interference with judicial officers, witnesses, jurors etc."; while Division 4 is entitled: "Perjury, false statements etc.". 11 The judgment of Howie DCJ turns, as the resolution of the question stated by his Honour will turn, upon the correct understanding of the concept, as embodied in section 323(a), of "any person ………… to be called as a witness in any judicial proceeding". There are two relevant Australian decisions; and there is relevant English authority. 12 The first of the Australian decisions is that of the Queensland Court of Criminal Appeal, (Thomas, Williams and Lee JJ), in R v Danahay [1993] 1 Qd. R 271. 13 That case concerned the construction of section 127(1) of the Queensland Criminal Code which provided, relevantly, as follows: "Any person who ………………. offers to give …………… any ………benefit ………. to………….any person, upon any agreement or understanding that any person called or to be called as a witness in any judicial proceeding shall give false testimony or withhold true testimony …………. is guilty of a crime ……… …." 14 Thomas J dealt as follows with the point here in question: "The first submission for the appellant is that it was necessary for the prosecution to prove that at the material time ………….(the relevant witness) ……… was about to be called as a witness in a judicial proceeding. I do not think that such a matter needs to be proved as an objective fact upon an indictment under s.127(1). It is only within the context of the understanding that such a matter needs to be proved. If the proffered agreement or understanding is in relation to a person identified in the agreement or understanding as one who is called or to be called as a witness, the offence may be made out whether or not he is ever actually called or to be called as a witness. It is enough that the person making the offer and the putative witness understand that he is to be called. It follows that it was unnecessary for the prosecution to prove that ………. (the relevant witness) …………was in fact 'about to be called as a witness'. Plainly the understanding of the parties at the material times was that he was to be so called. ………………." (at 273 (25) - (35) ) 15 Williams J approached the matter in a somewhat different way. His Honour's reasoning, - (it is at 279(5) - (40) ), - appears to depend upon the particular facts of the case. The witness in question in Danahay had been an eye-witness to the alleged criminal offences. Williams J describes him as a person who "in the ordinary course of events ………… ought to have been called by the prosecution". The name of the witness had been notified in the bail conditions as that of a potential witness at any hearing; and he had actually been served with a subpoena requiring his attendance at Court for the purpose of giving evidence. 16 Williams J does observe, however, that particular acts and statements of the appellant Danahay were such as to be capable, at the very least, of being considered by a jury as establishing to the requisite standard that Danahay had regarded the relevant witness "as a person who was to be called as a witness and was dealing with him as such". 17 Williams J does make the following particular observations about the relevant test: "The test determining whether or not a person is 'to be called as a witness' cannot be whether or not that person was subsequently in fact called as a witness. If, as happened here, the accused person pleaded guilty that could hardly absolve a person from criminal responsibility for conduct already completed of corrupting a witness who would have been called if the matter went to trial. The gravamen of the offence is the corrupting of a witness; whether the inducement is effective or not - for any reason - is beside the point. That is the rationale behind all the common law decisions on analogous offences …………. ." 18 The reasoning of the third member of the Court, Lee J, does not seem to me to parallel exactly the reasoning of either Thomas J or Williams J. It seems to me, however, that Lee J was, like Williams J, largely influenced in his Honour's ultimate view by the facts of the particular case as I have earlier summarised them. The essence of the relevant portion of Lee J's reasoning is caught, I think, in the following extract from his Honour's judgment: "Whilst the sub-section is not free of difficulty, and possibly suggests that the contemplated calling of the witness should not be too remote in point of time in relation to the offer, particularly when the word 'about' is added to the charge, I agree generally with the submission that the words 'then to be called' (or 'then about to be called'), mean then 'intended' to be called as a witness There was ample evidence to support this conclusion." (at 292(5) ) 19 The decision in Danahay was considered by this Court, - (constituted by Gleeson CJ, Finlay and Simpson JJ), - in Reg v Lansdell: CCA (NSW); unreported; 22 May 1995. 20 The relevant views of Gleeson CJ are found at pages 6 and 7 of his Honour's judgment. His Honour there expresses the view that "(t)he meaning of the expression is to be found in the legislative purpose of the section. The offence is aimed at preventing the corruption or improper influencing of witnesses, and the critical element is the intention with which the alleged offender has acted.". The Chief Justice went on to observe that it was "………….unnecessary, and undesirable, to formulate a comprehensive statement of what will be necessary, or sufficient, for a conclusion that, in a given case, someone satisfies the description of a person to be called as a witness". His Honour's view was that in Lansdell, as in Danahay, the given facts were such that it was not necessary to resolve what his Honour described as "some difference in the approach taken by the members of the Court in Danahay as to whether the objective element mentioned is necessary or whether the test is purely subjective, and related solely to the understanding and intention of the accused". That said, however, his Honour added the following observations: "There is much to be said for the view, preferred by Thomas J, that the test is purely subjective, and that it is the understanding and intention of the person exerting the corrupt influence, rather than the objective likelihood that one or other party to future proceedings will take a particular course, that matters. However, that question should await resolution in a case where it arises on the facts." 21 Finlay J expressed a simple concurrence with the views expressed by the Chief Justice. 22 The principal judgment of the Court was written by Simpson J. Her Honour explores in much greater detail the question that is central to the present particular case. The relevant portions of her Honour's judgment appear at pages 40-43 of her Honour's judgment. 23 The core of her Honour's reasoning as now relevant is contained in the following passage taken from page 42 of her Honour's judgment: "What must be recognised in the analysis of the argument on behalf of the appellant is that it may be the very act of the person accused which converts, or is designed to convert, a person into a person 'to be called as a witness'. It is quite wrong to say that the offence is not committed unless the person has been designated as such a person. The section is broad enough to include a person who, absent the very act constituting the offence with which the person accused is charged, is not a person called or to be called as a witness, but who, by reason of that act, becomes such a person, or is intended, by the act, to become such a person." 24 The foregoing discussion of authority can be supplemented usefully by a brief reference to a decision of the Criminal Division of the English Court of Appeal: Panayiotou and Antoniades (1973) 57 Cr.App.R 762. The allegation made against the two accused persons in that case was, put shortly, that they had offered money and other material inducements to a particular woman in order to induce her to withdraw an allegation which she had made to the police that one of the two accused had sexually assaulted her. The basic question on the hearing of the appeal was said to be "whether ……….(the woman in question) ……is to be regarded as a witness or a prosecutor". 25 The judgment of the Court contains the following expression of opinion: "In our judgment, the question whether a person is to be treated as a witness or not can only be answered by having regard to the proceedings contemplated. If a person has made a statement with a view to the provision of evidence in support of criminal proceedings, certainly in that case such a person in relation to those proceedings is a witness, and it is a perversion of the course of justice as to offer him (or her) an inducement to alter or withdraw the statement." ( at 766, 767) 26 Applying all that has thus far been said to the given facts of the present case, I would reason as follows: (1) It is, in my opinion, erroneous to contrast sections 323 and 333, and to base upon that contrast a proposition that facts sufficient to support a conviction for an offence against section 333 cannot be sufficient, in a particular case, to found equally well a conviction for an offence against section 323(a). I do not see in the language of either section language that would justify a conclusion that the two sections are mutually exclusive. There is nothing that I can see in the relevant legislative background, - (it is summarised helpfully by Simpson J at pages 40-42 of her Honour's judgment in Lansdell ), - to warrant a contrary conclusion. (2) There is in section 323(a) nothing to indicate a legislative intent that it is only a witness, or an intended witness, for the prosecution, who is to come within the purview of the section. (3) The basic question for present purposes is not whether Mr. Reid might lawfully have been convicted of an offence against section 333. The basic question is whether he was liable, on the given facts, to lawful conviction for an offence against section 323(a). In that context, I consider that the views expressed by Thomas J in Danahay are logically convincing. I am strengthened in that view by the provisional endorsement of those views by Gleeson CJ in Lansdell ; and by the general thrust of the reasoning of Simpson J in the latter case. (4) Applying those principles to the given facts of the present case, I am of the opinion that there is ample evidence to support a conviction of Mr. Reid for an offence against section 323(a). When Mr. Reid did the act particularised at 2.3(i) of the stated case, he intended that, if Mr. Becchio were agreeable to give false evidence in aid of Mr. Reid's case at the forthcoming Local Court hearing, then he, Mr. Reid, would call Mr. Becchio as a witness in his case, and for the purpose of giving that false evidence in aid of that case. Once Mr. Becchio accepted the proposal of Mr. Reid, then he became, in my opinion, a person intended "to be called as a witness" in the sense contemplated by section 323(a). Mr. Reid, having secured Mr. Becchio's agreement to appear as a witness, undoubtedly intended thereupon to call Mr. Becchio in fact as such a witness. It is equally clear, in my opinion, that Mr. Becchio, having accepted Mr. Reid's proposal, intended thereupon to make himself available for the purpose that Mr. Reid had proposed. (5) Thereafter, each of the acts done by Mr. Reid as particularised in 2.3(iii), (iv) and (v) of the stated case, was an act of the kind contemplated by section 323(a). Each such act done by Mr. Reid in order to procure a witness who would give false evidence was, in my opinion, an act corrupting public justice in exactly the way at which section 323(a) is intended to strike. 27 Howie DCJ has put to the Court, in his Honour's stated case, the following precise question: "…………(W)hether, for the reasons stated, I erred in law in concluding that at the relevant time Mr. Becchio was not a person to be called as a witness in a judicial proceeding for the purposes of s.323(a)." 28 In my opinion that question should be answered: yes; and the stated case should be remitted to his Honour with that expression of opinion. IN THE COURT OF CRIMINAL APPEAL No: 60229/99 SULLY J HULME J HIDDEN J 12 November 1999 REGINA -v- Wilfred Lawson REID JUDGMENT 29 HULME J: Subject to one matter, I agree with the order proposed by Sully J and with His Honour's Reasons. 30 My reservation is that I wish to make it clear that I am not endorsing that portion of the remarks of Simpson J in R v Lansdell (unreported, CCA, 22 May 1995) wherein Her Honour said "but who, by reason of that act, becomes such a person, or is intended, by the act, to become such a person" and quoted by Sully J at paragraph 23. 31 It seems to me that included within the essential ingredients of s323 of the Crimes Act are:- (i) The doing of an act by the offender, (ii) with an intention which includes that false evidence will be given or true evidence withheld by, (iii) a second person who answers the description "called or to be called" as a witness… 32 One can only determine the issue of whether that second person is "to be called" by looking at the intention of someone having control or influence over the presentation of the proceedings. I incline to the view, that at the time the act is done by the suggested offender, the second person must answer the description "called or to be called" and it is not sufficient that that person is someone who merely might be called, even if that possibility will become a matter of likelihood or intention once he or she indicates willingness to participate in the corrupt conduct suggested. 33 The acts done by Mr Reid as particularised in paragraphs 2.3(iii), (iv) and (v) of the Stated Case occurred at a time when Mr Becchio answered the description of a witness "to be called" by Mr Reid. IN THE COURT OF CRIMINAL APPEAL 60229/99 SULLY J HULME J HIDDEN J 12 November 1999 REGINA v Wilfred Lawson REID JUDGMENT 34 HIDDEN J: I also agree with Sully J. I share Hulme J's reservation about the passage quoted from the judgment of Simpson J in Lansdell. However, the matter does not need to be resolved for the purposes of this case. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.