Reported Decision : 67 NSWLR 727 New South Wales Supreme Court CITATION : Director of Public Prosecutions v Levent Aydogan and Ravena Annie Gosper [2006] NSWSC 558 HEARING DATE(S) : 12 December 2005 JUDGMENT DATE : 8 June 2006 JUDGMENT OF : Latham J DECISION : The appeal is allowed. I make the following orders and declaration; 1. That the order of the magistrate made on 29 June 2005 at the Downing Centre Local Court dismissing the proceedings against each defendant be set aside; 2. That the magistrate erred at law in finding the false statement made by the first defendant, dated 6 June 2003 in the matter of Police v Donna Maree Bishop did not constitute "evidence" for the purpose of s 317(b) of the Crimes Act 1900; 3. That the magistrate erred at law in finding the false statement made by the second defendant, dated 18 June 2003 in the matter of Police v Donna Maree Bishop did not constitute "evidence" for the purpose of s 317(b) of the Crimes Act 1900; 4. That the matters be remitted to the Local Court to be dealt with according to law; 5. That the defendants pay the Plaintiff's costs in these proceedings. The costs are to be paid to the Registrar of the Downing Centre Local Court within two months of the receipt by the defendants of the bill of costs by the Director of Public Prosecutions. I grant to each of the defendants a certificate under s 6 of the Suitors Fund Act 1951 CATCHWORDS : Appeal from Local Court - whether Magistrate erred in law in finding that false statements were not "evidence" for purposes of s 317(b) Crimes Act - statutory interpretation of Part 7, Crimes Act - s 317 the statutory equivalent of attempt to pervert the course of justice. Crimes Act 1900 Crimes (Local Courts Appeal and Review) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 Crimes (Public Justice) Amendment Act 1990 Suitors Fund Act 1951 R v Rogerson (1992) 174 CLR 268 R v Murphy (1985) 158 CLR The Queen v Vreones (1891) 1 QB 360 CASES CITED : R v Spezzano (1977) 76 DLR (3d) 160 R v Rowell [1978] 1 WLR 132 R v Machin [1980] 1 WLR 763 R v Murray [1982] 1 WLR 475 Plaintiff - Director of Public Prosecutions PARTIES : Defendant (1) Levent Aydogan Defendant (2) Ravena Annie Gosper FILE NUMBER(S) : SC 14736/2005 COUNSEL : Plaintiff - P Buscombe Defendants - J Dailly SC SOLICITORS : Plaintiff - S Kavanagh Defendants - Walter Madden Jenkins IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST LATHAM J 8 JUNE 2006 14736/2005 DIRECTOR OF PUBLIC PROSECUTIONS v LEVENT AYDOGAN and RAVENA ANNIE GOSPER JUDGMENT 1 LATHAM J : In January and June of 2005, the first and second defendants were the subject of proceedings in the Local Court at the Downing Centre, charged with fabricating false evidence with intent to mislead a judicial tribunal pursuant to s 317(b) Crimes Act 1900. The magistrate dismissed the proceedings against each of the defendants on the basis that a false statement made by the first defendant, dated 6 June 2003, and a false statement made by the second defendant, dated 18 June 2003, did not constitute "evidence" for the purposes of the definition of the offence. The plaintiff appeals pursuant to section 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001. 2 The plaintiff filed a summons on 12 October 2005 seeking the following orders and declarations: An order pursuant to section 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 that the order of the magistrate made on 29 June 2005 at the Downing Centre Local Court dismissing the proceedings against each of the defendants be set aside. Declarations that the magistrate erred at law in finding the false statements made by the first and second defendants, dated 6 June 2003 and 18 June 2003, did not constitute "evidence" for the purpose of section 317 (b) of the Crimes Act 1900. An order that the matters be remitted to the Local Court to be dealt with according to law. The Background to the Proceedings 3 On 25 April 2003 at about 6:30 p.m., Constables Jones and Brennan were on duty in a police caged truck, when they were called to an address in Church Street Parramatta to assist the first and second defendants in relation to an arrest. On arrival the constables were asked to convey a Ms Donna Bishop to an address in Alfred Street Rosehill, which was her residence. Ms Bishop was said to be swearing and verbally abusive towards police. The first and second defendants accompanied the caged truck in their police car. 4 On arrival at the Rosehill address, Ms Bishop was removed from the caged truck. She continued to verbally abuse all four police officers, who returned to their vehicles, intending to leave Ms Bishop on the street. Ms Bishop then hit the caged truck with a crutch and a plastic bag. Constable Brennan re-arrested Ms Bishop for offensive conduct and once more placed her in the back of the truck. Prior to leaving Alfred Street, a decision was made not to take Ms Bishop to Parramatta police station for charging, but to convey her to the vicinity of Rosehill racecourse. 5 The first and second defendants drove to a location near the racecourse in their police vehicle, followed by Constables Jones and Brennan in the caged truck. At that location Ms Bishop was asked to get out of the truck, but she refused. It is alleged that Ms Bishop spat in the direction of the first defendant, who was standing at the back of the truck, and that the spittle struck the first defendant's uniform. The first defendant then sprayed Ms Bishop with capsicum spray and closed the truck door, stating in effect that she was now under arrest for assault police. Ms Bishop was then conveyed to Parramatta police station and charged with assault officer in the execution of his duty. A court attendance notice was issued that evening, directing her to appear at Parramatta Local Court on 26 June 2003 at 9:30 a.m. 6 The first defendant made a statement dated 6 June 2003 purporting to give an account of the events of 25 April 2003. In that statement, which was witnessed the same day by another officer, the first defendant omitted any reference to Ms Bishop being conveyed to the vicinity of Rosehill racecourse. Rather, the first defendant stated that the assault occurred when Ms Bishop was dropped at her home in Alfred Street Rosehill. 7 The second defendant made a statement dated 18 June 2003, also purporting to give an account of the events of 25 April 2003. That statement was witnessed by the first defendant on 20 June 2003. In that statement the second defendant omitted any reference to Ms Bishop being conveyed to the vicinity of Rosehill racecourse. The second defendant provided an account consistent with that provided by the first defendant. 8 On 24 June 2003 the second defendant sought the advice of Acting Inspector Stephen McGrath, who at the time was the senior prosecutor for Parramatta, Blacktown and Fairfield Local Courts. The second defendant informed Acting Inspector McGrath that she had left something out of the statement. She was advised to make an additional statement correcting the earlier statement and that the first defendant should do the same. On 7 July 2003 the first defendant gave Acting Inspector McGrath two statements in relation to the matter of Bishop. One was made by the second defendant and dated 18 June 2003, wherein the second defendant gave a new version of the events of 25 April 2003. This later statement, which was witnessed (undated) by someone other than the first defendant, referred to the assault upon police as having occurred in the vicinity of Rosehill racecourse. 9 The second of the two statements provided to Acting Inspector McGrath was a statement made by the first defendant dated 6 June 2003. It had been witnessed by a Constable Dorey on 7 July 2003. In this statement the first defendant also gave a new version of the events of 25 April 2003, in that the assault was said to have occurred in the vicinity of Rosehill racecourse. 10 The defendants were duly charged on the basis that they had provided false statements, which were to be relied upon in the Local Court proceedings against Ms Bishop. The false statements did not become part of a police brief and were never served upon Ms Bishop. In fact, the proceedings against Ms Bishop were withdrawn. The hearing of the charges against the defendants took place before the magistrate on 27, 28 January and 29 June 2005. On 29 June 2005 at the conclusion of the prosecution case, the magistrate held that the prosecution were not able to prove that the statements were evidence for the purposes of the charges against the first and second defendants and that therefore a prima facie case had not been established. The proceedings were dismissed. 11 The issue for determination is whether the magistrate erred in her construction of s 317(b) of the Crimes Act 1900, in that she found that the false statements made by the first and second defendants did not constitute "evidence" for the purposes of section 317(b), albeit they may have been capable of bringing the defendants within s 317(a). It is not disputed that an erroneous finding of no prima facie case in these circumstances is an error of law, nor is it disputed that the statements were false. The Terms of Section 317 Crimes Act 1900 and the Statutory Context 12 Section 317 provides :- A person who, with intent to mislead any judicial tribunal in any judicial proceeding: (a) suppresses, conceals, destroys, alters or falsifies anything knowing that it is or may be required as evidence in any judicial proceeding, or (b) fabricates false evidence (other than by perjury or suborning perjury), or (c) knowingly makes use of fabricated false evidence, is liable to imprisonment for 10 years. 13 The provision appears in Division 2 of Part 7 of the Crimes Act headed "Public justice offences". Division 1 contains definitions relevant to the Part. Division 2 is headed "Interference with the administration of justice", and includes offences relating to false accusations, hindering police in their investigations, threatening or intimidating persons with the intention of preventing information from coming to the attention of a police officer, concealing serious indictable offences, making or using false official instruments to pervert the course of justice and perverting the course of justice. Section 317 is headed "Tampering etc with evidence". Division 3 is headed "Interference with judicial officers, witnesses, jurors etc." and contains offences relating to the corruption of witnesses or jurors, threatening or intimidating judicial officers, witnesses or jurors, influencing witnesses or jurors, preventing or dissuading jurors from attending, and reprisals against judicial officers, witnesses or jurors. For the purposes of Division 3, a reference to the giving of evidence includes a reference to the production of anything to be used as evidence (s 320). 14 Division 4 is headed "Perjury, False Statements etc" and includes the offence of perjury, perjury with intent to procure conviction or acquittal, making a false statement on oath not amounting to perjury, subornation of perjury, and offences relating to false statements in evidence on commission and false instruments issued by public officers. Division 5 is headed "Miscellaneous". Section 341 provides that certain common law offences are abolished, including the offence of attempting or conspiring to pervert the course of justice. Section 343 saves from abolition the common law offences of escaping from lawful custody, assisting a person to escape from lawful custody and refusing to assist a peace officer in the execution of his or her duty. The Magistrate's Reasons 15 The dismissal of the proceedings followed upon an acceptance by her Honour of a submission advanced on behalf of the defendants that the statements relied upon by the prosecution were not "evidence" for the purposes of s 317(b) of the Crimes Act. The basis of this submission was that the statements had not been tendered in evidence, had not been put in a brief of evidence, had not been delivered to the prosecutor for checking, had not been served upon Ms Bishop, and that the terms of the jurat made it clear that each document contained an indication of the evidence that the maker would give, if called as a witness in the proceedings. Reference was made to the fact that the proceedings against Ms Bishop were withdrawn and that, beyond the preparation of the statements, no further use was made of them. 16 Following a reference to the principle of statutory construction that requires a strict reading of a penal provision, her Honour compared and contrasted the terms of s 317(a) and s 317(b). In summary, her Honour held that "the terms of subsection (a) were clearly intended by the drafter to encompass the material which is the subject of the charge here", that is, the statements were documents or things, which had been falsified. Subsection (b), on the other hand, was, according to her Honour, "clearly intended to relate to something else", that is, the use of the statements in evidence. The Competing Submissions 17 The plaintiff's submissions may be summarised as follows. The proper construction of s 317 turns upon the ordinary English meaning of the words of the provision. Accordingly, 317(a) relates to the suppression, concealment, destruction, alteration or falsification of a thing already in existence, in the knowledge that it is or may be required as evidence. Section 317(b) refers to the making or construction of false evidence, whether or not the evidence is ultimately provided to a prosecutor, or included in a brief of evidence, or introduced as evidence in a judicial proceeding. Section 317(c) relates to the use of false evidence which has been made or constructed under (b), whether that be by the creator of the false evidence or some other person. The plaintiff contends that it is implicit in the use of the term "false evidence" in (b) and (c), when contrasted with the use of the phrase "knowing that it is or may be required as evidence" in (a), that the construction or manufacture of material for the purposes of judicial proceedings is sufficient to bring that conduct within the ambit of the offence constituted by (b) and (c). By way of contrast, the conduct prohibited by (a) relates to material which was not created for the purposes of judicial proceedings, but becomes relevant and therefore potentially required for those purposes. 18 The defendants submit that the provision is solely concerned with physical items of evidence, that is, the reference to "evidence" cannot, on the proper construction of the provision, extend to the written contents of the statements or oral evidence in accordance with those contents. Thus, the defendants would place the following construction upon s 317, namely, that (a) relates to the suppression, concealment, destruction, alteration or falsification of any existing physical item that prevents it being used as evidence in its true form, knowing that it is or may be required as evidence and whether or not it is ultimately admitted into evidence; (b) relates to the manufacture or creation of a false physical item, or shaping existing material into a false finished product, which has been introduced into evidence; (c) relates to the introduction of a false physical item into evidence, which has been fabricated by another. Section 317 did not apply because the document or physical item was not capable of misleading a judicial tribunal, only the statements contained within the document may have been so capable. Given that the documents were never served upon Ms Bishop, they could not have been introduced into evidence according to Part 2 of the Criminal Procedure Act 1986. It should be noted that the submissions in this Court are somewhat more refined than the submissions made by counsel in the Local Court and accepted by the Magistrate. The Resolution of the Appeal 19 The construction of s 317 must be undertaken according to the legislative context in which it appears. Part 7 of the Crimes Act was introduced by the Crimes (Public Justice) Amendment Act 1990 in order to consolidate the common law and statutory offences relating to interference with the course of justice. When introducing the Bill on 17 May 1990, the then Attorney General said: At present there is no comprehensive statement of the law relating to public justice offences. The law is fragmented and confusing, consisting of various common law and statutory provisions, with many gaps, anomalies and uncertainties. Common law offences have no specific penalty provided, and the exact limits of these offences are sometimes difficult to establish. The Bill will rectify this by creating specific offences dealing with a number of areas. [The provisions of chapter 2 were then summarised] A general offence of perverting the course of justice is also included in chapter 2. It has been necessary to include this offence as, no doubt, offenders will find particularly devious ways of perverting the course of justice that are not covered by any of the specific offences in the Bill. It is intended that this offence will cover such situations. However, where the facts show that a specific offence has been committed, the specific charges should be laid in preference to charging the general offence. [Chapters 3 and 4 were summarised] As a result of the creation of the statutory offences in this Bill, a number of common law offences are abolished. These are set out in chapter 5 of new part 7 of the Crimes Act. 20 As foreshadowed by the Bill, s 341 in Division 5 of Part 7 abolishes the common law offence of perverting the course of justice and of attempting to pervert the course of justice. However, a general offence of perverting the course of justice was provided for by s 319 in Division 2 of Part 7 for the reasons articulated in the course of the second reading speech. No such provision was made for the offence of attempting to pervert the course of justice. Accordingly, conduct which was capable of amounting to an attempt to pervert the course of justice at common law is now found within the specific offences established by Part 7. 21 In R v Rogerson (1992) 174 CLR 268, the High Court confirmed the well-established principle that the offence of attempting to pervert the course of justice at a time when no curial proceedings are on foot can be committed, citing R v Murphy (1985) 158 CLR at 609; The Queen v Vreones (1891) 1 QB 360; R v Spezzano (1977) 76 DLR (3d) 160. Mason C. J. confirmed that :- Action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceeding before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency [citations omitted]. ……. Action taken to prevent the institution of a prosecution is as much an interference with, or impairment of, the administration of justice as action taken to obstruct the conduct of a prosecution after it has been commenced. ….. an act which has a tendency to deflect the police from prosecuting a criminal offence or instituting disciplinary proceedings before a judicial tribunal, or from adducing evidence of the true facts, is an act which tends to pervert the course of justice and, if done with intent to achieve that result, constitutes an attempt to pervert the course of justice …… 22 Rogerson was itself a prosecution for conspiring to pervert the course of justice, arising out of an agreement to fabricate receipts and accounts relating to monies held by the National Australia Bank, in anticipation of a police investigation of those accounts. Similarly, offences constituted by tampering with evidence or fabricating evidence were prosecuted under the common law as attempts to pervert the course of justice: see The Queen v Vreones (tampering with a sample of a wheat to be used in an arbitration on a contract); R v Rowell [1978] 1 WLR 132 (making a false statement to the police implicating another person in a crime and placing a toy pistol in a bus intending that it be used as evidence of the offence); R v Machin [1980] 1 WLR 763 (making a false allegation of assault by police officers); R v Murray [1982] 1 WLR 475 (tampering with a blood specimen prior to analysis). 23 Section 43 of the Crimes Act 1914 (Cth) provides that it is an offence to attempt to pervert the course of justice in relation to the judicial power of the Commonwealth. In Hugo & Anor. v The Queen [2000] WASCA 199, the Court of Appeal of Western Australia considered the authorities reviewed above in the context of the conviction of two police officers pursuant to s 43 for the falsification of a property seizure record and a notebook entry. Whilst the grounds of appeal did not take issue with the capacity of the conduct of the appellants to constitute the offences upon which they were convicted, the case is instructive in so far as the conduct in each instance consisted of making a false record. 24 In Machin, the English Court of Appeal said:- The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice. …. There are statutory offences, for example, the concealing of information for reward. …. On the other hand, …. ,the common law recognises a wide general offence variously referred to as perverting or obstructing the course of justice, obstructing or interfering with the administration of justice, and defeating the due course, or the ends of justice. The particular acts or conduct in question may take many different forms including conduct that amounts in itself to some other criminal offence or attempt thereat in the strict sense of an inchoate offence. The gist of the offence is conduct which may lead and is intended to lead to a miscarriage of justice whether or not a miscarriage actually occurs. We therefore respectfully agree that the use of the word "attempt" in the present context is misleading … The word is convenient for use in the case where it cannot be proved that the course of justice was actually perverted …. (at 766-767) 25 It is therefore beyond doubt that an offence amounting to an attempt to pervert the course of justice may be committed regardless of whether the false document or record or accusation finds its way into evidence in a judicial proceeding. The authorities also remark on the wide variety of conduct capable of amounting to an attempt to pervert the course of justice under the common law. Indeed, the range of conduct capable of amounting to a perversion of the course of justice warranted the retention of the general offence in the Crimes Act, notwithstanding the creation of other substantive offences within Part 7. It should not therefore be assumed that conduct is not capable of coming within more than one of the offences in Part 7. 26 Disregarding Divisions 1 and 5, Part 7 consists of three broad categories of offences: offences arising out of conduct which is antecedent to the institution of proceedings (Division 2); offences arising out of conduct that interferes with the proper performance of obligations undertaken by persons engaged in judicial proceedings (Division 3); offences arising out of conduct by persons in the course of judicial proceedings (Division 4). When one has regard to the qualifying words appearing in s 317(b), that is, "other than by perjury or suborning perjury", the application of Division 2 to conduct that pre-empts the institution of proceedings is underscored. In the absence of the qualifying words, s 317(b) might be taken to include false testimony. The words appearing in parenthesis put that matter beyond doubt. In my opinion, Division 2 of Part 7 contains those offences which were otherwise recognised under the common law as attempts to pervert the course of justice, as discussed in the authorities at pars 21 to 24 above. 27 In the light of this analysis and taking into account the intention of the legislature to substitute statutory offences for the common law offences relating to interferences with the administration of justice, of which Division 2 of Part 7 is an expression, I can see no basis for adopting a construction of s 317(b) and (c) which would confine the offence either to physical items per se, or to physical items introduced into evidence or intended to be introduced into evidence. The defendants' construction of s 317 is absolutely inconsistent with a statutory interpretation of the provision which ought to reconcile its terms with the legislative purpose of the Crimes (Public Justice) Amendment Act 1990. 28 Accordingly, the appeal is allowed. I make the following orders and declaration :- 1. That the order of the magistrate made on 29 June 2005 at the Downing Centre Local Court dismissing the proceedings against each defendant be set aside. 2. That the magistrate erred at law in finding the false statement made by the first defendant, dated 6 June 2003 in the matter of Police v Donna Maree Bishop did not constitute "evidence" for the purpose of s 317(b) of the Crimes Act 1900. 3. That the magistrate erred at law in finding the false statement made by the second defendant, dated 18 June 2003 in the matter of Police v Donna Maree Bishop did not constitute "evidence" for the purpose of s 317(b) of the Crimes Act 1900. 4. That the matters be remitted to the Local Court to be dealt with according to law. 5. That the defendants pay the Plaintiff's costs in these proceedings. The costs are to be paid to the Registrar of the Downing Centre Local Court within two months of the receipt by the defendants of the bill of costs by the Director of Public Prosecutions. I grant to each of the defendants a certificate under s 6 of the Suitors Fund Act 1951. ********** 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.