Offences against justice/in public office
Part 7 Crimes Act 1900 (NSW) is headed “Public justice offences”. Division 2 deals broadly with interference in the administration of justice. Division 3 provides offences for interfering with participants in the criminal justice process. Division 4 provides offences for perjury and other false acts.
The seriousness with which the community regards offences against justice can be gauged from the Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, Hansard, 17 May 1990) which inserted Pt 7 into the Crimes Act: Marinellis v R  NSWCCA 307 at ; Richards v R  NSWCCA 262 at .
The then Attorney-General, the Hon John Dowd MLA said at p 3691:
Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done.
Other offences involving the administration of justice are found in Pt III Crimes Act 1914 (Cth), the Jury Act 1977, the Independent Commission Against Corruption Act 1988 and the Police Act 1990. There are also a number of residual common law offences for bribery and contempt.
[20-130] Purposes of punishment — general deterrence and denunciation
Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a sentence may be imposed, including s 3A(b): “to prevent crime by deterring the offender and other persons from committing similar offences”; and s 3A(f) “to denounce the conduct of the offender”.
The Court of Criminal Appeal has consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected: Marinellis v R  NSWCCA 307 at ; R v Taouk (1992) 65 A Crim R 387.
The purpose of an appropriate sentence for an offence such as perjury is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will be visited with serious punishment: R v Bulliman (unrep, 25/2/93, NSWCCA); R v Aristodemou (unrep, 30/6/94, NSWCCA).
In Harrigan v R  NSWCCA 449 at , the court endorsed the statement of McClellan J (as he then was) in the two-judge bench decision of R v Giang  NSWCCA 276. In relation to an act intending to pervert the course of justice, McClellan J stated at :
In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action.
The court has also emphasised the importance of general deterrence in relation to bribery offences: R v Pangallo (1991) 56 A Crim R 441 at 443.
The court has also held that denunciation is to be given greater importance in sentencing for an offence against justice committed by those directly involved in the administration of justice: R v Nguyen  NSWCCA 332 at .
[20-140] Offences against justice committed by public officials
Where an offence against justice is committed by a public official, the Court of Criminal Appeal has consistently held that the offender’s position is generally a significant matter in aggravation. In Retsos v R  NSWCCA 85 at , Sully J (with Howie and Simpson JJ agreeing) stated:
Any offence of, or ancillary to, corrupt conduct on the part of any public official should be denounced plainly and punished condignly.
In R v Nguyen  NSWCCA 332 at , Spigelman CJ (with Barr and Hoeben JJ agreeing) explained: “The fact that the offence of perverting the course of justice is committed by a person directly involved in the administration of justice is a relevant consideration, even if the conduct does not occur in the course of that person’s official duty”. See also R v Chapman (unrep, 21/5/98, NSWCCA).
Denunciation is to be given greater importance in sentencing for an offence of attempting to pervert the course of justice committed by someone involved in the justice system: R v Nguyen at .
Breaching a position of trust is a matter of aggravation: see generally Objective Factors (cf 21A(1)) at [10-060].
In R v Nguyen  NSWCCA 332, Spigelman CJ at CL stated at :
There is authority in this Court to the effect that it is relevant that a person who commits an offence with respect to the administration of justice is a police officer.
Spigelman CJ quoted from R v Chapman (unrep, 21/5/98, NSWCCA), where Simpson J said:
Those concerned in the administration of the law must be taken to appreciate the supreme importance of truthful evidence being given in judicial proceedings. The respondent did not cease being a police officer, or carrying out the duties and responsibilities, and having the privileges of that office, because these events arose out of recreational and not professional activities. He must be taken to have known, better than most, how important the curial procedure is, and with what respect it must be treated.
Earlier, in R v Nomchong (unrep, 10/4/97, NSWCCA), McInerney J (with Hunt CJ at CL and Sully J agreeing) stated:
The crime of bribery by a police officer, therefore, must be severely punished whenever detected. The police are in constant contact with members of the public and the opportunity for bribery is always great. Those circumstances themselves mean that the element of general deterrence is always a matter that must be kept very much in the forefront of the mind of a sentencing judge when a police officer is charged with an offence such as this. It is important to deter other police officers who may be inclined to similar conduct.
See also R v O’Mally  NSWCCA 166 at .
R v Nomchong involved a senior sergeant attempting to corrupt a junior officer under his supervision. McInerney J endorsed the trial judge’s statement that:
The inevitable consequence of the conviction of a police officer for the offence of attempting to pervert the course of justice would in most cases be a fulltime custodial sentence.
In R v Hilder (unrep, 13/5/93, NSWCCA) the police officer was convicted of “seriously corrupt conduct … in the performance of his duties”. Wood J (as he then was) concluded: “That kind of conduct must attract a significant custodial sentence …” However, Wood J noted that “[i]t remains, of course, appropriate in any case involving a person holding public office to take into account the loss of reputation, and employment and also where appropriate, the loss of a pension or superannuation benefits”.
The rank of the police officer, and the corruption of other officers, is relevant to the seriousness of the offence: R v Irwin  NSWCCA 361 at ; R v Nomchong.
In the context of corruption offences, less weight can be given to evidence of good character as a police officer: R v Chad (unrep, 13/5/97, NSWCCA); see also R v Farquhar (unrep, 29/5/85, NSWCCA) in relation to judicial officers.
The fact that an offender who bribes or attempts to bribe a police officer is a solicitor is an aggravating feature, whether the bribe is large or small: R v Pangallo (1991) 56 A Crim R 441. In Pangallo, Lee CJ at CL explained at 443–444:
The police are in constant contact with members of the legal profession, both barristers and solicitors, and the opportunities for bribery are great and those circumstances of themselves mean that the element of deterrence is always a matter which must be kept very much to the forefront of the mind of a sentencing judge when a solicitor appears before him on a charge such as the present one. Solicitors as part of the legal profession, are expected to conduct themselves towards their clients with honesty … and that high standard of honesty is also expected of them in their dealings with the police, the courts and indeed also with other public authorities.
In a case of attempting to pervert the course of justice, a custodial sentence will be imposed where the offender is a judicial officer: R v Farquhar (unrep, 29/5/85, NSWCCA). The court stated at pp 30–31:
Where, as here, the offence is committed by a person holding judicial office in the judicial hierarchy of the State the attempt to commit the offence strikes at the very core of the integrity of the administration of justice. Such a person is in a commanding position to attempt to pervert the course of justice and when he seeks to abuse his position to achieve that end, public confidence in the judicial system will be lost unless it is made clear that such conduct will bring a prison sentence.
The court made clear that since the public is entitled to expect a judicial officer will be of good character and integrity, previous good character or reputation of a judge convicted of attempting to pervert the course of justice will be of far less weight than in a different type of offence: R v Farquhar at p 31. In Einfeld v R (2010) 200 A Crim R 1 at , Basten JA said:
… it is beyond question that for a senior legal practitioner and former judge of a superior court to commit offences against the administration of justice is apt to give rise to public disquiet about the integrity of the judicial system. These were offences to which the present status of, and the offices formerly held by, the applicant were of great significance.
There is “a risk that judges will deal more harshly than some would think appropriate with those from within their own ranks”: Einfeld v R at . Notwithstanding that danger, it is accepted that an offender’s status as a senior legal practitioner and former judge rendered perjury and perverting the course of justice more serious than they would otherwise have been: Einfeld v R at . Basten JA also stated at  (Latham J agreeing at ; RS Hulme J agreeing at ) that the applicant’s former positions removed:
… an element of ignorance which might otherwise have diminished the degree of culpability. It was not merely a matter of knowing that it is a crime to lie on oath or seek to pervert the course of justice: it was a matter of understanding the significance accorded to such conduct by the law and the heightened seriousness of offences when committed by a person with the applicant's background and experience.
In R v Jackson and Hakim (unrep, NSWSC, 2/9/87), the Minister for Corrective Services of NSW was sentenced to a term of sentence of 7 years 6 months, with a non-parole period of 3 years 9 months, for the common law offence of conspiracy. He had conspired to receive money corruptly in exchange for the early release of prisoners on administrative licence. Roden J stated:
The true measure of his criminality, however, is not to be found solely in how much or little he gained, or in how much or how little society may have suffered through the early releases of prisoners he procured. Its true measure lies in the undermining of the institutions and the principles on which we depend.
A Crown appeal asserting that the sentence was manifestly inadequate was upheld (Lee J; with Finlay J agreeing, Street CJ dissenting): R v Jackson and Hakim (unrep, NSWCCA, 23/6/88). The court resentenced Jackson to 10 years imprisonment, with a non-parole period of 5 years. Lee J observed at p 1:
We live, and are fortunate to live, in a democracy in which members of Parliament decide the laws under which we shall live and cabinet ministers hold positions of great power in regard to the execution of those laws. A cabinet minister is under an onerous responsibility to hold his office and discharge his function without fear or favour to anyone, for if he does not and is led into corruption the very institution of democracy itself is assailed and at the very height of the apex.
The fact that Jackson was not the instigator of the scheme, was addicted to gambling and had previously been of good character counted for little. In relation to the last matter, Lee J explained at p 3:
… as was pointed out in R v Farquhar … the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as in the case of an ordinary citizen committing crime, for the public is entitled to expect that those who are placed in high office will necessarily be persons whose character makes them fit to hold that office.
[20-150] Interference in the administration of justice: Pt 7 Div 2 Crimes Act 1900
Section 314 — False accusations etc
Section 314 states: “A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years”.
It is appropriate in assessing the objective criminality of an offence under s 314 to identify a critical respect in which the police investigation was diverted: R v Richards  NSWCCA 262 at . Where an offender under s 314 stands to gain more than co-offenders, his or her objective criminality will be greater: R v Richards at .
Section 315 — Hindering investigation etc
Section 315(1)(a)–(c) prohibits any conduct that is intended in any way to hinder the investigation of, discovery of evidence in relation to, or apprehension of another for, a serious indictable offence.
Range of offending
Hindering an investigation under s 315(1)(a) is capable of encompassing a wide range of objective criminality: R v Mobbs  NSWCCA 371 at . It is appropriate to take into account the seriousness of the “serious indictable offence”, the investigation of which was hindered by the offender: R v Mobbs  NSWCCA 371 at ; R v Lawrence  NSWCCA 404 at .
It is also relevant to consider the extent to which the investigation is hindered and the conviction of a person for the related “serious indictable offence” is made more difficult. In some cases, the hindering will be relatively unsuccessful. For example, in R v Lawrence, the applicant maintained statements exculpating her de facto partner of an assault, despite police arresting him and finding evidence linking him to the crime. Howie J at  contrasted the case with R v Derbas  NSWCCA 44, where an offender organised other persons to degrease a vehicle used in connection with a homicide and make it appear stolen.
Similarly in R v Richmond  NSWCCA 173, the court took particular note of the actual impact on the investigation. Smart AJ explained at : “While the police were subjected to additional expense and there was probably some delay in the investigation, it could not be said that Mr Richmond’s criminality extended to other than making a false statement which was not accepted”. In Sampson v R  NSWCCA 19, the fact police were not hindered in their investigation by the offending conduct was a factor taken into account by the sentencing judge in finding the offence was “in the lower part of the middle range” of objective seriousness: Sampson v R at –.
In some circumstances where a person hinders an investigation, the fact that the person who committed the “serious indictable offence” is eventually convicted will be of no significant weight. In R v Derbas, the killer was only convicted by the fortuitous circumstance of another person coming forward: R v Derbas at –.
The statutory hierarchy of offences in Part 7 and the De Simoni principle
Care must be taken not to infringe the De Simoni principle (see discussion at [1-500]) when sentencing an offender for an offence under Pt 7 of the Crimes Act 1900. See generally Fact Finding at Sentence at [1-500]. In R v Mobbs  NSWCCA 371 at –, Johnson J stated that:
The offence under s 319 [perverting the course of justice — 14 years] is regarded by the legislature as being more serious than an offence under s 315 [hindering investigation — 7 years]. As Howie J observed in R v Hamze  NSWSC 136 at paragraph 24, insofar as the maximum penalty for a s 315 offence reflects Parliament’s assessment of the conduct giving rise to the offence, a maximum penalty of seven years is “a relatively modest one”. In passing sentence for a s 315 offence, it is necessary to keep in mind the different elements and penalties referable to offences under ss 315 and 319. A sentencing judge must not attribute to an offender conduct which would constitute a more serious offence [than] that for which he is to be sentenced: De Simoni; R v El-Zeyat  NSWCCA 138 at paragraph 46.
… A finding that, but for the actions of a s 315 offender, another person would have been prosecuted for a more serious offence appears to me to move beyond the elements of a s 315 offence to a s 319 offence so as to infringe the De Simoni principle.
A decision to hinder an investigation based on threats may be relevant to sentencing, but such a claim must be supported by evidence: R v Derbas  NSWCCA 44 at –.
An offence motivated by loyalty is not necessarily less serious than conduct motivated by reward. The former is part of the evil against which s 315 is directed. Although a motivation of reward may be thought to be more deserving of censure, the need for general deterrence of offenders motivated by loyalty is likely to be greater: R v Derbas at .
Offending committed on the spur of the moment must be distinguished from the more serious scenario of conduct which, although not premeditated, is nevertheless ongoing and organised: R v Derbas at .
Factors relevant to sentencing an offender under s 315 were discussed by Johnson J in R v Mobbs  NSWCCA 371 at –. The applicant was a passenger in a car driven by Richards which was involved in a fatal head-on collision. The applicant agreed with Richards that he would claim to be the driver:
There had been a tragic collision causing the death of one person and serious injury to a number of people. For a period of about 24 hours, the Applicant hindered the police investigation. He told a number of people that he was the driver and he placed his P plates on Richards’ vehicle. These were aggravating features of this offence.
There are other factors, however, which bear upon an assessment of the objective criminality of the offence. The fact that the offence is committed on the spur of the moment, without planning or premeditation, is relevant … The length of time during which the hindering is maintained is also relevant … The motive of the offender in committing the offence is relevant … General deterrence is significant …
This was not an offence where the Applicant stood to gain or receive any benefit for himself. Indeed, an admission that he was the driver of a motor vehicle which had just been involved in such a catastrophic collision could only be regarded as an admission attracting substantial detriment to the Applicant. This is a most unusual feature of this case. The Applicant’s hindering of the investigation of the offence attracted investigation by police of himself for serious offences. [Citations omitted.]
Similarly, Howie J enumerated a number of factors relevant to the objective seriousness of an offence under s 315 in R v Hamze  NSWSC 136 at –.
Section 316(1) — Concealing serious indictable offence
It is an offence for a person, knowing or believing that a serious indictable offence has been committed, to fail without reasonable excuse to give information which might be of material assistance to police: s 316(1). A person who solicits or agrees to accept a benefit in consideration for doing anything that would be an offence under s 316(1) is also guilty of an offence: s 316(2).
The seriousness of the “serious indictable offence” which is concealed is relevant to the objective seriousness of an offence under s 316: R v Crofts (unrep, 10/3/95, NSWCCA).
In Crofts, Meagher JA observed:
The section is a comparatively new section and this is the first case, so far as one knows, which has been brought under it. It is a section which has many potential difficulties, the chief of which is the meaning of the words “without reasonable excuse”, difficulties which are magnified when one endeavours to contemplate how those words would apply to the victim of the crime.
Gleeson CJ added: “… depending upon the circumstances of an individual case, it may be extremely difficult to form a judgment as to whether a failure to provide information to the police was ‘without reasonable excuse’”.
The NSW Law Reform Commission concluded in Review of Section 316 of the Crimes Act 1900 (NSW), Discussion Paper 39, 1997 at [4.40] that the wide scope for prosecution under s 316(1) was unsatisfactory:
Section 316 has a valid social purpose of encouraging members of the public who have information about serious crimes to report that information to the police and other appropriate authorities. However, the technical application of s 316(1) to information acquired in the course of confidential relationships, including relationships between law enforcement agencies and informants, health care professionals and patients and researchers and research subjects inhibits participation in these relationships. This problem outweighs the social utility of s 316(1).
In 1997, Parliament introduced s 316(4)–(5), which provides:
A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.
The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).
In the subsequent report, Review of Section 316 of the Crimes Act 1900 (NSW), Report 93, 1999, the NSW Law Reform Commission stated at [3.1]:
The Commission has concluded that the amendments to s 316 which came into force in March 1998 do not adequately address the problems with the section identified in the Discussion Paper. The Commission recommends that s 316(1) should be repealed. This is a unanimous recommendation. A minority of Commissioners favours the substitution of a new provision, somewhat analogous, but, in the minority’s view, adequate to overcome the grave problems created by the present subsection. The Commission also considers that the compounding offence contained in s 316(2) should be slightly amended.
Section 319 — Perverting the course of justice
Section 319 provides: “A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years”.
Objective seriousness of offence
The high maximum penalty recognises the importance of protecting the integrity of the criminal justice system: R v Purtell  NSWCCA 21 at . Offences of perverting the course of justice are singled out as offences of the most serious kind: Taylor v R  NSWCCA 99 at . They strike at the very heart of the justice system and must be severely punished wherever detected: Marinellis v R  NSWCCA 307 at ; citing R v Pangallo (1991) 56 A Crim R 441 at 443.
Strongly deterrent sentences are required in sentencing for an offence under s 319: Taylor at ; Marinellis at ; Harrigan v R  NSWCCA 449 at ; R v Giang  NSWCCA 276 at ; Church v R  NSWCCA 149 at .
In Harrigan, James J said at –:
It seems to me that an offence under section 319 has some affinity with an offence of bribing a police officer, in that each offence is an interference with the criminal justice system.
In R v Duong (1999) 109 A Crim R 60, a case in which one of the offences was an offence of offering a bribe to a police officer, Wood CJ at CL said … “save in the most exceptional circumstances, such an offence will call for a significant term of imprisonment to be imposed cumulatively or at least substantially cumulatively upon the sentence for the primary offence in respect of the detection or prosecution of which the bribe was offered.”
In my opinion, her Honour was required to make the sentences she imposed at least substantially cumulative on each other.
The fact that an attempt to pervert the course of justice did not succeed or was doomed to failure is of far less significance than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R  NSWCCA 99 at ; Marinellis v R  NSWCCA 307 at ; R v Taouk (1992) 65 A Crim R 387 at 392. It is, therefore, an error to take into account the fact the acts were unsuccessful when assessing the objective seriousness of an offence of perverting the course of justice: R v PFC  NSWCCA 117 at –, applying Taylor v R. It is the tendency of the conduct which is decisive and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis v R at .
In R v Nomchong (unrep, 10/4/97, NSWCCA) McInerney J (with Hunt CJ at CL and Sully J agreeing), endorsed the trial judge’s reasoning that “… the inevitable consequence of the conviction of a police officer for the offence of attempting to pervert the course of justice would in most cases be a full-time custodial sentence”. The case involved a senior police officer attempting to corrupt a junior officer under his supervision.
In the two judge-bench of R v Giang  NSWCCA 276, McClellan J (as he then was) stated at –:
There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate.
The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence.
The use of intimidation or threatened violence as part of conduct intended to pervert the course of justice increases the seriousness of the offence: R v Mrish  NSWCCA 17 at .
It has been accepted that the fact a person is protecting a family member is a relevant consideration when sentencing for a s 319 offence: Podesta v R  NSWCCA 97 per McClellan CJ at CL at . However, in R v Nguyen  NSWCCA 332, Spigelman CJ held at :
… personal advantage can take many forms. Greed may be regarded as a less worthy motive than protection of a family member. The latter is no less a form of personal gain to an offender and, often, is a more powerful motive. Protection of the system of criminal justice should not be significantly less vigilant where its perversion is attempted for reason of family ties, rather than the expectation of monetary gain.
The more serious the offence, the less weight should be given to motive as a mitigating factor: R v Mitchell  NSWCCA 296 per Howie J at –.
In R v Moore  NSWCCA 3, the respondent forged a letter from his employer in support of an application for bail variation with the intended purpose of enabling him to attend a weekend vocational course without breaching bail conditions. In the course of dismissing the Crown’s appeal against sentence, the court noted (per Simpson J at ) that “when consideration is given to the other purposes for which an offence of this kind is sometimes committed — for example, unwarranted acquittal on a serious charge — this offence may be seen in its proper perspective on the scale of objective gravity”.
Relevance of the principal charges being no billed or dropped
In R v Marinellis  NSWCCA 328, the applicant asked a number of acquaintances to provide an alibi for an alleged sexual assault. The sexual assault charges were ultimately not proceeded with, although the applicant was committed for trial. In rejecting his sentence appeal in relation to perverting the course of justice, McClellan J (with Studdert J agreeing in a two-judge bench), stated at –:
I do not accept that the applicant’s culpability should be reduced by reason of the fact that the charges of aggravated sexual assault were not proceeded with. The Court is not aware of the circumstances which motivated that decision and is unable to form any conclusion about the strength or otherwise of the Crown case. However, it is apparent that the applicant was committed for trial. The fact that the applicant believed it necessary to procure others to give false alibi evidence on his behalf suggests a belief in him that, unless this was done, he was at risk of being convicted.
In these circumstances, even if it be relevant, there was no basis for his Honour to conclude that the motive for the offence was to achieve a just result. I do not accept that even if the court was to assume that the applicant was the subject of false allegations, this was a significant mitigating feature. A result obtained by perjured evidence could not be described as just.
In Church v R  NSWCCA 149, the applicant perverted the course of justice by failing to contradict, in sentence proceedings for an assault occasioning actual bodily harm, an assertion by her solicitor that she was suffering from cancer. On appeal against the sentence imposed for the perversion offence, the court found it was not an error for the sentencing judge to consider the hypothetical sentencing outcome had the course of justice not been perverted: Church v R at . The finding that the applicant evaded imprisonment for 12 months, which would have been the appropriate sentence for the assault offence, was an important part of assessing the objective seriousness of the perversion offence: Church v R at , .
Level of interference in the justice process — stage of proceedings
The offence of perverting the course of justice is not confined to legal proceedings already in existence but can extend to acts done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may be instituted: The Queen v Beckett (2015) 256 CLR 305 at .
In R v Finnie and Finnie  NSWCCA 38 at , Sully J (with Simpson and Latham JJ agreeing) endorsed the sentencing judge’s approach that an offence intended to influence the grant of bail is not generally as serious as an intended perversion of trial or sentencing proceedings.
In R v Purtell  NSWCCA 21 at , Giles JA accepted the Crown’s submission that intending to influence sentencing proceedings was as serious as interference with trial proceedings.
In R v Karageorge (1998) 103 A Crim R 157 at 175, although the court allowed a conviction appeal and ordered a new trial, Levine J, with Sully and Simpson JJ agreeing, expressed a view that:
For myself, I would not regard the obtaining of an adjournment as a perversion of a relatively minor kind: the course of justice must include the efficient management of the Court’s business in respect of which great reliance is placed upon the conduct of the profession. A trial adjourned is, of course, a trial delayed thereby depriving both the Crown and the accused of that which the law strives to attain, namely finality. It prejudices people waiting for their cases to be listed. The course of justice in relation to a particular matter adjourned on the false basis here predicated may cause immense prejudice arising not merely from the fact of delay but its effect upon the memories of all those to be called to give testimony.
In R v Nguyen  NSWCCA 332 at , Spigelman CJ rejected the respondent’s submission that encouraging an innocent person to plead guilty could be assessed as a “low” level of seriousness:
Encouraging a person to plead guilty to an offence, which that person did not commit, and thereby allowing a citizen to acquire a criminal record and to suffer criminal punishment is, in my opinion, a significant form of the offence of perverting the course of justice.
See also R v Meissner (unrep, 27/11/92, NSWCCA), where Allen J (with Sully and Ireland JJ agreeing) endorsed the trial judge’s comment: “… to directly interfere with a person’s right to plead not guilty to a criminal charge is to cut the ‘golden thread’. It is to interfere with the most fundamental right that any person has under the law, the right to defend a criminal charge relying upon the presumption of innocence”.
In Allen v R  NSWCCA 11, the applicant had been charged with sexually assaulting his former girlfriend. Emails and a video containing sexually explicit images of the complainant were later sent to a number of people. The applicant said he could stop the circulation of the images if the complainant made a statement that she wanted the charges dropped. The applicant’s counsel argued on appeal that higher sentences for perverting the course of justice should be reserved for those who interfere with justice officials such as judges or police officers. Grove J rejected the submission at :
Each case needs to be assessed in its particular circumstances and, as a generality, the attempt to suborn a complainant, who may succumb, could very well be misconduct more serious than an attempt directed at those whose callings make it more likely that they would not only resist the attempt but report it to authority and thereby ensure that the offender is called upon to answer.
In R v Egan  NSWCCA 196, the respondent was charged with sexual offences and used the complainant’s email address to send emails to himself in an attempt to damage her credibility. The first trial date was vacated while the integrity of the emails was investigated. The court found it was not open to the sentencing judge to regard the offence as “at the low end of the range” given its intention to bring about a miscarriage of justice for the respondent’s own benefit in his trial for serious offences: R v Egan at .
[20-155] Common law contempt of court
Forms of contempt
The common law offence of contempt is broadly aimed at preventing interference in the administration of justice: Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 739. Contempt may involve, amongst other things:
interference by publication (sub judice contempt)
misconduct by participants in the proceedings
breach of orders or undertakings
refusal to attend on subpoena or give evidence.
Contempt may also be classified as occurring “in the face of the court”: see Civil Trials Bench Book, Contempt in the face of the court at [9-0000]. See further Civil Trials Bench Book, Contempt generally at [9-0300] and the Criminal Trial Courts Bench Book, Contempt, etc at [1-250]ff.
The NSW Law Reform Commission reviewed sub judice contempt in Contempt by Publication, Report 100, 2003. For a discussion of the history and various species of contempt, see a paper by the Honourable Justice Whealy, “Contempt: some contemporary thoughts”, 2007, available at <www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_whealy180807>.
Contempt may be classified as either civil or criminal, although the distinction has been criticised as “unsatisfactory” and “illusory”: Australasian Meat Industry Employees Union Ltd v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109; Witham v Holloway (1995) 183 CLR 525 at 534. Notwithstanding what was said in Witham v Holloway, the court in that case were at pains to make clear that proceedings on a charge of contempt were not to be regarded as the equivalent of a criminal trial and do not attract the criminal jurisdiction of a court: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at , . The contempt proceeding in Boral’s case arose in the course of a civil proceeding between Boral and the appellant, and was commenced and pursued under the civil procedure rules: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd at –, .
The “companion principle” — that the prosecution cannot compel the accused to assist it to discharge its onus is a “companion” of the accusatorial nature of criminal trials, and does not apply in contempt proceedings: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd at , –, –. There are important distinctions between contempt proceedings and criminal proceedings.
Contempt must be proved beyond reasonable doubt: Pang v Bydand Holdings Pty Ltd  NSWCA 69 at , , . The rules of court do not distinguish between civil and criminal contempt and the “punishment” that can be imposed applies regardless of whether a contempt is characterised as civil or criminal: Pang v Bydand Holdings Pty Ltd at .
Referrals by the Local Court to the Supreme Court and procedural fairness
In Prothonotary of the Supreme Court of NSW v Dangerfield  NSWCA 277, the Court of Appeal held that before the Local Court could exercise its power of referral under s 24(4) Local Court Act 2007, the principles of natural justice apply — procedural fairness requires the magistrate to inform the respondent of the two options available ie to deal with the alleged contempt summarily or to refer the matter under s 24(4). An alleged contemnor should be given an opportunity to make submissions on the question of referral and must be afforded procedural fairness: Prothonotary of the Supreme Court of NSW v Dangerfield at . In Prothonotary of the Supreme Court of NSW v Chan (No 23)  NSWSC 535, the defendant was unrepresented. There was no adjournment so he could receive advice, nor was he given, as he had to be, an explanation of the options open to the Local Court under s 24, or their consequences. Justice required the matter be referred back to the Local Court to determine how the defendant’s contempt should be further dealt with, after the defendant has been given the procedural fairness that s 24 required: Prothonotary of the Supreme Court of NSW v Chan (No 23) at .
Penalty for contempt
The provisions of the Crimes (Sentencing Procedure) Act 1999 apply when sentencing an offender to imprisonment for contempt: Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at –; confirmed in Attorney-General for NSW v Whiley (1993) 31 NSWLR 314 at 320–321.
As a common law offence, there is no specific maximum penalty for contempt. As Hunt CJ at CL described it in Wood v Galea (1997) 92 A Crim R 287 at 290: “Punishment is said to be ‘at large’, subject only to the restriction in the Bill of Rights 1688 (UK) upon cruel punishments. [Smith v The Queen (1991) 25 NSWLR 1 at 15–18]”. The Supreme Court Rules 1970, Pt 55, r 13 provides:
Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both …
Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.
The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.
The rule merely confirms the court’s sentencing power and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314; Whiley at 320; Jando at . The sentencing principles for contempt were helpfully summarised by Wilson J in In the Matter of Steven Smith (No 2)  NSWSC 1141 at –.
Part 55, r 14 confers power on the Supreme Court to “revisit and review” a decision to imprison a person for contempt. It permits the contemnor to have the court review the question of punishment and sentencing in light of some change in the relevant circumstances: Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88 at –. It confers power in circumstances where the court fixing punishment by a term of imprisonment might otherwise be functus officio. The rule is clearly designed to permit discharge short of the service of a specified term: Menzies v Paccar Financial Pty Ltd at ; Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 282–283.
Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition, and establish that the punishment suffered already is enough to vindicate the authority of the court: Menzies v Paccar Financial Pty Ltd at .
An offender dealt with in the District or Local Courts for contempt in the face of the court may receive a fine not exceeding 20 penalty units or imprisonment not exceeding 28 days: s 199(7) District Court Act 1973; s 24(1) Local Court Act 2007; see further Civil Trials Bench Book, Contempt in the face of the court at [9-0000].
Maximum penalties for statutory offences that are similar to common law contempt charges may provide some guidance. In Whiley, the offender threatened violence in an attempt to influence Children’s Court proceedings involving his infant son. The Court of Appeal accepted that the 10 year maximum penalty under s 322 of the Crimes Act 1900 reflected the seriousness with which such conduct is regarded by the legislature and the community: Whiley at 319.
Range of seriousness — technical to contumacious contempt
The “nature of the contempt itself and its consequences vary … greatly in different cases”: Wood v Galea at 277.
In Maniam (No 2) (1992) 26 NSWLR 309 at 314, Kirby P identified classes of cases relevant to sentencing an offender guilty of contempt:
For the purposes of punishment, various classes of contempt have been identified in the cases. They include technical, wilful and contumacious contempt. For technical contempts, the Court will usually accept an apology from the contemnor. It may order that the contemnor pay the costs of the proceedings brought to uphold the authority of the courts of law … A similar approach is sometimes taken to contempts which are more than technical and which, although wilful, are not found to have been deliberate …
In relation to the most objectively serious form of contempt, Kirby P continued:
The most serious class of contempt, from the point of view of sanction, is contumacious contempt. Not every intentional disobedience involves a conscious defiance of the authority of the Court which is the essence of this class of contempt …This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice, as distinguished from a simple interference with property rights manifested by a court order … In cases where such a measure of wilfulness is established, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both. In such a case the elements necessary to establish wilfulness, carrying as they do the potential of penal consequences, must all be proved to the criminal standard.
This approach was followed in Jando at .
Contempt by publication (sub judice contempt)
In Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, the NSW Court of Appeal (in a five-judge bench) found then Premier Wran and Nationwide News Pty Ltd guilty of contempt. In sentencing proceedings, the court said:
… it has long been established that it is a serious contempt of court to make public assertions about the guilt or innocence of an accused which have a tendency to prejudice the fair conduct of an impending trial. It does not matter whether the assertion is of innocence or guilt. Either is capable of affecting a potential juror’s mind and of defeating the fair trial which it is the fundamental purpose of our system of criminal justice to secure …
It must be made plain in particular that the courts will not tolerate the deliberate intervention of those in positions of authority who deploy their power and prestige in support of assertions of that kind.
In the South Australian case of Director of Public Prosecutions v Francis (No 2) (2006) 95 SASR 321, Bleby J reviewed a number of sentences involving contempt by media organisations and commentators, from NSW and other jurisdictions. His Honour said at :
… the penalty for this kind of contempt must give significant recognition to the seriousness of the offending and must be such as to act as a deterrent both to the offender and to others. The vice in this type of contempt is the denigration of and the undermining of confidence in the administration of justice.
Bleby J referred at  to Gallagher v Durack (1983) 152 CLR 238 at 243, where the High Court considered factors relevant to contempt involving imputations against the court or judges:
The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”.
See also DPP (Cth) v Besim (No 2)  VSCA 165.
Breach of orders or undertakings
The High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 112–113 has noted that “lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court”.
Not every intentional disobedience of a court order involves a conscious defiance of the authority of the Court, but wilful contempt in defiance of the court is contumacious contempt: DB Mahaffy & Associates v Mahaffy  NSWSC 1959 at .
In The Prothonotary of the Supreme Court of NSW v Battye  NSWSC 48, the defendant solicitor transferred shares to a third party in breach of a District Court order. Given the defendant’s status as an officer of the court and the fact it left open no doubt as to his understanding of the contempt involved, the court concluded that the seriousness of the offence, as a wilful and contumacious contempt, precluded disposal of the offence by way of a s 10 non-conviction order under the Crimes (Sentencing Procedure) Act 1999: Prothonotary v Battye at , –. A term of imprisonment would have been the only appropriate sentence had the shares not been finally transferred to the intended recipient under the court order: at Prothonotary v Battye at .
Misconduct against judicial officers by participants in proceedings
In Prothonotary v Wilson  NSWSC 1148, Wilson threw two bags of yellow paint at the trial judge after he received an advance ruling. Wood CJ at CL explained at  that in the case of a contempt in the face of the court involving a reprisal against a judge:
The gravamen of the offence lies not in protecting the personal dignity of the judge who may be the object of an assault or personal attack but of protecting the public from the mischief that will incur if the authority of the courts is undermined or impaired.
An appeal against sentence was allowed on the basis of fresh evidence: Wilson v Prothonotary  NSWCA 23.
Several cases and sentences involving reprisals against judges are referred to in Principal Registrar of Supreme Court of NSW v Drollet  NSWSC 490 at –, and also discussed in the paper by the Honourable Justice Whealy, “Contempt: some contemporary thoughts”, 2007, see above under Forms of Contempt at [20-110]. See also R v Dent  NSWSC 444 at  where the offender was sentenced for three serious examples of contempt involving “wilful and extreme defiance and disregard for the authority of the court”.
Refusal to attend on subpoena or give evidence
In Registrar of the Court of Appeal v Raad (unrep, 9/6/1992, NSWCA), Kirby P stated at p 14:
The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community or because he or she is within it. It is a concomitant of a society ruled by law and not by brute force that a person competent to do so should, where required, be sworn or affirmed to give truthful evidence and that he or she should give evidence when called upon to do so in the courts in answer to questions lawfully addressed.
A refusal to be sworn or affirmed, or to answer questions, has been identified as “very serious” contempt: Principal Registrar of the Supreme Court of NSW v Jando at , R v Razzak  NSWSC 1366 at –; In the Matter of Steven Smith (No 2)  NSWSC 1141 at . It is not unusual for persons who wilfully disobey a subpoena to attend court as a witness to receive a custodial sentence, especially in criminal proceedings: Registrar of the Court of Appeal v Maniam (No 2) at 315.
The Court of Appeal in Field v New South Wales Crime Commission  NSWCA 144 at  considered Registrar of the Court of Appeal v Gilby (unreported, NSWCA 20 August 1991) which identified the following factors to be taken into account when punishing for a contempt in the context of a deliberate refusal to give evidence:
the objective seriousness of the contempt
whether the contemnor was aware of the consequences of what he or she proposed to do
whether the contempt was committed in the context of serious crime
whether the contempts were motivated by fear of harm should evidence be given
whether the contemnor had received a benefit by indicating an intention to give evidence.
In Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185, Dunford J identified similar factors, as well as a number of additional factors, which may be relevant when sentencing for contempt involving a refusal to give evidence. These factors have been referred to and applied in subsequent cases involving the refusal to give evidence: Principal Registrar of Supreme Court of NSW v Drollet at  and Anderson v Hassett (No 2)  NSWSC 1444 at .
The contemnor in Field v NSW Crime Commission twice refused to submit to an examination before the Supreme Court under ss 10 and 12 Criminal Assets Recovery Act 1990. The Court of Appeal characterised the conduct as “a contumacious contempt in circumstances where the appellant was fully aware of the possible consequences”. A sentence of a fixed term of imprisonment of 4½ years was held not to be excessive in the circumstances: at , .
No tariff of sentences for contempt
Heydon JA remarked in Wilson v The Prothonotary  NSWCA 23 at : “there is little point in comparing sentences in a field of criminal conduct which is rarely committed”.
In Principal Registrar of the Supreme Court of NSW v Jando, Studdert J had been referred by counsel to a schedule of contempt cases and penalties but concluded at :
I have considered those various cases but I do not propose to review them in the course of this judgment. The penalties varied significantly from case to case. That is by no means surprising because it has to be recognised that what penalty is appropriate in a particular case is so dependent upon the assessment of all its features, including the nature of the particular contempt and its consequences.
Similarly in R v Razzak, Johnson J said at :
I do not consider that sentences for contempt, in other cases, provide a safe guide to the proper tariff or punishment for contempt of court given that the nature of the contempt itself, and its consequences, vary so greatly between the cases …
In Principal Registrar of Supreme Court of NSW v Tran  NSWSC 1183 at , the court acknowledged the vast range of criminality encompassed by contempt. The case has a schedule attached containing 15 contempt cases and the penalties imposed. A summary of penalties imposed in contempt cases up to 2007 can also be found in the Honourable Justice Whealy’s paper, “Contempt: some contemporary thoughts”, 2007, see Forms of Contempt at [20-155].
[20-158] Disrespectful behaviour in court
From 1 September 2016, an accused person, defendant, party to, or person called to give evidence in proceedings before the court is guilty of an offence if they intentionally engage in behaviour in the court during the proceedings and that behaviour is disrespectful to the court or presiding judge: Local Court Act 2007, s 24A; District Court Act 1973, s 200A; Supreme Court Act 1970, s 131; Land and Environment Court Act 1979, s 67A; Coroners Act 2009, s 103A. The offence was introduced to bridge the gap between contempt and community expectations of behaviour in court (Second Reading Speech, Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016, NSW, Legislative Council, Debates, 11 May 2016, p 9).
The offence is punishable by 14 days imprisonment or 10 penalty units, or both. Proceedings for the offence are to be dealt with summarily before the Local Court (or the Supreme Court in its summary jurisdiction, where the offence is committed in the Supreme Court: Supreme Court Act, s 131(4)).
The new offence does not affect any power with respect to contempt. Proceedings for contempt may be brought in respect of behaviour that constitutes a “disrespectful behaviour” offence, but a person cannot be prosecuted for both contempt and the offence in respect of essentially the same behaviour.
[20-160] Interference with judicial officers, witnesses, jurors etc: Pt 7 Div 3 Crimes Act 1900; s 68A Jury Act 1977
Section 323 — Influencing witnesses and jurors
Section 323(a) provides a maximum penalty of seven years for, inter alia, intending to cause a witness in any judicial proceeding to give false evidence, withhold true evidence, not to attend as a witness, or not to produce anything in evidence pursuant to a summons or subpoena. The essence of a s 323(a) offence is that it strikes at the integrity of the justice system and so some form of custodial sentence is normally appropriate: Warby v R  NSWCCA 173 at ; R v Burton  NSWCCA 128 at ; Asplund v R (Cth)  NSWCCA 237 at .
Section 323(b) provides a maximum penalty of seven years for intending to influence the conduct of a juror in any judicial proceedings.
Section 324 is an aggravated form of ss 321–323, punishable by a maximum of 14 years, where the offence is committed with the intent of procuring a conviction or acquittal for a “serious indictable offence”.
It is an error to sentence an offender, who pleads guilty to an offence under s 323(a), for the more aggravated offence under s 324. Section 324 “constitutes a distinct and greater offence which must be specifically alleged in the indictment”: Warby v R, above, at .
But, in assessing the objective seriousness of an offence under s 323(a), it is an error to have regard to the absence of a fact which, if it were present, would constitute a different and more serious offence, such as an offence of threatening or intimidating a juror under s 322(a): R v Burton, above, at .
Where an offence under s 323(a) is committed in the context of domestic violence by an offender who wants to dissuade criminally the victim from giving evidence, there is a need for a significant element of general deterrence: R v Burton at . A correct exercise of sentencing discretion required the court to have express regard to the need for general and specific deterrence and denunciation of domestic violence offences: R v Burton at , Hiron v R  NSWCCA 336 at , R v Hamid  NSWCCA 302 at . Additionally, given that victims of domestic violence often — and contrary to their interests — forgive their attackers (at ), a court should cautiously approach a victim’s expressions of forgiveness and requests for a lenient sentence: at , .
In Asplund v R (Cth), there was an added element of seriousness to an offence under s 323(a) where the witness influenced by the offender was his 17-year-old son, as such offending had a traumatic effect on the witness and constituted a breach of trust: Asplund v R (Cth) at .
In sentencing for an offence under s 323(b), it is relevant to consider the nature of the intention to influence a juror. In the unusual case of R v Sultan  NSWCCA 461, the applicant approached the husband of a juror during his trial for a break and enter offence. He asked that the juror “listen to the evidence carefully”. Grove J (with Sully and Howie JJ agreeing) accepted that the applicant’s conduct was merely “an exhortation to perform the duty of the juror”: at . Grove J observed at :
The intention of the legislature in enacting s 323(b) was clearly to proscribe any act intended to influence a jury in any way whether benign or not. But it does not derogate from acknowledgement of that intention to assess the seriousness of an offence against the presence or absence of sinister connotation.
See also s 68A Jury Act 1977 below; R v Laws (2000) 50 NSWLR 96.
Section 326 — Reprisals against judges, witnesses, jurors etc
Section 326(1) provides a maximum penalty of 10 years for threatening or causing injury or detriment to a person on account of anything lawfully done as a witness, juror, judicial officer or other public justice official. A similar offence applies where an offender threatens, does or causes injury or detriment believing the person will or may be called as a witness or serve as a juror: s 326(2). It is immaterial whether the accused acted wholly or partly for a reason specified in ss 326(1) or (2): s 326(3).
An offence against s 326 is, by its very nature, serious; amounting to a direct attack upon the administration of justice: Linney v R  NSWCCA 251 at . In Linney v R, the applicant sent emails containing death threats aimed at a judge via the judge’s associate and the police. The court found no error in the sentencing judge’s assessment of the offence as above mid-range: Linney v R at . Although the offence is concerned not only with threatening but also doing or causing injury or detriment, the death threats made by the applicant were repeated, not spontaneous and made in circumstances where the recipient was given real cause to fear they could be carried out: Linney v R at , –.
In R v Jaques  NSWCCA 444, where the applicant made a threat to kill a magistrate, Dowd J (with Wood CJ at CL and Bell J agreeing) explained the gravamen of the offence at :
The offence of course is complete with the uttering of the words, and in the circumstances of the uttering of those words, the finding of guilty by the jury is not a finding of his intention to carry out the threat.
Dowd J continued at –:
His Honour is correct that there is a need for deterrence for this sort of offence. However, in the circumstances of an offence which was not made in the face of the court, which was done in an office where there were other people present, and although it appears it was uttered in anger, it was not such as to clearly indicate an intention to commit the offence that was threatened.
I consider that his Honour has erred in giving too much weight, in the circumstances of the utterance of these remarks, to the severity of what was uttered and has taken into account the applicant’s previous record, and in the circumstances, the penalty is manifestly excessive.
In R v Gaudry; MacDonald  NSWCCA 70 at , the sentencing judge erred by finding the s 326 offences committed by each respondent fell “toward the bottom of the range”. Each respondent threatened a person waiting in the foyer of a courthouse to give evidence. The threat involved reprisals against the person by persons with a reputation for violence. The making of the threat actually interfered with the course of justice by intimidating the person threatened to the effect that he did not give evidence that day: R v Gaudry; MacDonald at .
In Malicki v R  NSWCCA 162, however, the offence contrary to s 326(2) was held to be properly characterised as at the lower end on the basis that Malicki’s criminality was dwarfed by that of the co-offender Widmer: Malicki v R at .
Section 68A Jury Act 1977 — Soliciting information from or harassing jurors or former jurors
It is an offence under s 68A Jury Act 1977 to solicit information from, or harass, a juror or former juror for the purpose of obtaining information about the deliberations of a jury or how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in the trial (or coronial inquest).
In sentencing the radio presenter John Laws for an offence under s 68A, Wood CJ at CL noted that the increase in maximum penalty from a fine to imprisonment for seven years in 1997 “marks the seriousness with which the Legislature regards intrusion into the sanctity of the jury room”: R v Laws (2000) 50 NSWLR 96 at . Wood CJ at CL imposed a suspended sentence.
[20-170] Perjury, false statements etc: Pt 7 Div 4 Crimes Act 1900; ICAC Act 1988; Police Integrity Commission Act 1996; Crime Commission Act 2012
Part 7 Div 4 Crimes Act provides a range of offences for perjury and false statements. Section 87 of the Independent Commission Against Corruption Act 1988 (ICAC Act) also provides that a person who, at a compulsory examination or public inquiry conducted by the Commission, gives evidence that is false or misleading in a material particular knowing it to be false or misleading, or not believing it to be true, is guilty of an indictable offence. The maximum penalty for the offence is 200 penalty units or imprisonment for 5 years, or both. Similarly, s 107(1) Police Integrity Commission Act 1996 and s 27(1) Crime Commission Act 2012 provides that a person who, at a hearing before the Commission, gives evidence that is, to the knowledge of the person, false or misleading in a material particular is guilty of an indictable offence. The maximum penalty for an offence under s 107 is the same as the maximum penalty for an offence under s 87 ICAC Act. The text in s 107, “(cf ICAC Act s 87)”, evinces a legislative intention that the sentencer should compare or confer with the false swearing offence created in s 87.
Seriousness of offences
Offences of perjury and false swearing undermine the very foundation of the justice system: R v Aristodemou (unrep, 30/6/94, NSWCCA).
The need for general deterrence is the prime consideration in sentencing for offences of this kind: R v Aristodemou; R v Bulliman (unrep, 25/2/93, NSWCCA).
Any person who commits perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an Independent Commission Against Corruption (ICAC) inquiry should do so in the clear understanding that if their offence is detected, they will go to gaol except in exceptional circumstances: R v Aristodemou; R v Chad (unrep, 13/5/97, NSWCCA); R v Chapman (unrep, 21/5/98, NSWCCA); R v Fish  NSWCCA 196 at , ; R v Mahoney  NSWCCA 138 at –.
Motive as relevant factor
An offence of perjury or false swearing will be of lower objective seriousness where it was motivated by threats rather than the offender’s own purposes: R v Pile  NSWCCA 74 at . In that case, the applicant falsely resiled from statements implicating a co-offender in a robbery, but only after he was transferred from protective custody into a cell next to the co-offender.
In R v Fish, the first appellant was a police officer who denied in court that fellow police, including her husband, had assaulted prisoners. The husband had a history of domestic violence towards the appellant. Bell J (with Ipp AJA and Dunford J agreeing) allowed an appeal against sentence. Bell J stated at :
I am persuaded that it was relevant to the question of sentence to take into account the circumstance that the appellant’s offence took place in the context of an abusive marital relationship. This was not simply a matter of a police officer lying in court to protect fellow officers because of a misguided sense of loyalty. The appellant’s case in this respect possessed exceptional features. The reality of her situation was that had she given truthful evidence … she would not only have exposed her husband to liability for his criminal offences but almost certainly she would have been subject to serious physical violence at his hands. These matters raise considerations quite distinct from the need for courts to impose deterrent sentences in cases where police officers lie in order to protect their colleagues.
In R v Yilmaz (unrep, 4/3/91, NSWCCA) Smart J (with Gleeson CJ and Lee CJ at CL agreeing) considered that the applicant’s subjective case was sufficient to justify a non-custodial sentence. The applicant spoke poor English and did not fully understand the consequences of giving false evidence; the false evidence was to no avail; there was considerable delay in finalising the matter. Regarding delay as a mitigating circumstance, see also R v Fifita (unrep, 26/11/92, NSWCCA).
However, in R v Bulliman (unrep, 25/2/93, NSWCCA) Abadee J (with Gleeson CJ and Hunt CJ at CL agreeing) stated:
False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence or offences are committed.
In R v Aristodemou (unrep, 30/6/94, NSWCCA) Badgery-Parker J stated:
I do not accept the proposition that the community would regard as in any way a mitigating circumstance that the motive for the applicant’s false swearing was not to conceal corruption on his own part but was to conceal the corrupt conduct of others. No doubt there is an acceptance on the part of those who commit crime that it is dishonourable to inform on others and that there is some nobility in declining to do so. It by no means follows that the same view is taken by right-thinking members of the community and for my part, I refuse to proceed on the assumption that that is so. It is no doubt true that in some circumstances the seriousness of a crime may be seen to be mitigated if it was committed for an honourable, albeit mistaken motive. It is in my view an attempt to press that submission too far if the conduct is such to defeat the purpose of legislation enacted in the public interest.
In R v Mahoney  NSWCCA 138 at , the respondent argued that his perjury was less serious because it involved “a pathetic attempt” to mount a defence to an “overwhelming case”. Shaw J concluded that such a characterisation did not fundamentally detract from the seriousness of the offence.
Similarly, in R v Bulliman (unrep, 25/2/93, NSWCCA), Abadee J (with Gleeson CJ and Hunt CJ at CL agreeing) stated that offenders convicted of perjury “ought to be severely punished and this is irrespective of whatever be the outcome of the proceedings in which the false evidence was given”.
[20-180] Other corruption and bribery offences: Pt 4A Crimes Act 1900; s 200 Police Act 1990; common law bribery
Part 4A Crimes Act 1900
Part 4A provides offences for corruptly receiving commissions or rewards, and other corrupt conduct.
In Retsos v R  NSWCCA 85 at , Sully J (with Simpson and Howie JJ agreeing) said that: “Any offence of, or ancillary to, corrupt conduct on the part of any public official should be denounced plainly and punished condignly”.
In R v Potter  NSWCCA 26, the applicant pleaded guilty to five counts of corruptly receiving a benefit under s 249B(1)(a) as the Chief Steward of the Greyhound Racing Control Board. The sentencing judge properly took into account the historical background that the applicant had engaged in corrupt conduct for at least seven years, although he had been convicted of only five offences. It was permissible to use the applicant’s course of conduct to demonstrate the seriousness of those offences: at . The offences were at the top of the range, based on his official position, the motive of financial gain, the duration of his corrupt conduct, and the number of innocent people affected: at .
Section 200 Police Act 1990 — common law bribery offences
Further offences of bribery and corruption are provided in s 200 Police Act 1990. Under s 200(1), it is an offence for a member of the NSW Police Force to receive or solicit a bribe (pecuniary or otherwise). Under s 200(2), it is an offence for a person to give, offer or promise a bribe to, or make any collusive agreement with, a police officer.
An offence against s 200 is an indictable offence punishable by 200 penalty units, or 7 years imprisonment, or both: s 200(4).
There are also residual common law offences of bribery, conspiracy to bribe a public officer, and conspiracy to receive or solicit a bribe.
In R v Pangallo (1991) 56 A Crim R 441 at 443, Lee J stated that:
In my view, the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected.
In R v O’Mally  NSWCCA 166 at –, Grove J (with Stein AJA and Howie J agreeing) endorsed the following comments in R v Nomchong (unrep, 10/4/1997, NSWCCA): “The police are in a position of authority and trust in the community and the public depends on them to uphold the rule of law. The crime of bribery by a police officer is one that strikes at the very heart of the justice system”. Grove J added, “Those remarks are pertinent to the present offence and not just to an offence higher in the scale of criminality such as was the circumstance in that particular instance.”
In R v Duong  NSWCCA 353, Wood CJ at CL (with Foster AJ agreeing) said at :
The offence of bribery or of offering a bribe to police in the course of the execution of their duties is a most serious offence … Save in the most exceptional circumstances it will call for a significant term of imprisonment to be imposed cumulatively or at least substantially cumulatively upon the sentence for the primary offence in respect of the detection or prosecution of which the bribe was offered.
In R v MacLeod  NSWCCA 108 at , the CCA reiterated the serious nature of offences of the kind under s 200, threatening as they do the integrity of the administration of justice and potentially posing danger to police sources of information and jeopardising important investigations.
The failure of an attempted bribery may not be a mitigating factor: R v Duong at . The fact that an attempted bribery was made is more significant than in other attempts to commit substantive offences: R v Duong at ; R v Taouk (1992) 65 A Crim R 387. The likely outcome of an attempted bribery, if it had been successful, may be an aggravating factor. In R v Duong, Wood CJ at CL explained at :
Here we have an offence which, had the attempt succeeded, two results would have followed: first, two police would have been corrupted; second, no less than $8,000,000 worth of heroin would have found its way on to the streets of Sydney with the horrific social consequences which would flow from that release.
These matters, and particularly the second of them, in my view place this attempt to bribe police squarely within the category of the worst type of case.
[20-190] Common law offence of misconduct in public office
The common law offence of misconduct in public office provides that it is an offence for a public official, in the course of or connected to his or her public offence, to wilfully misconduct himself or herself by act or omission without reasonable excuse or justification, where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those objects: R v Quach (2010) 27 VR 310 at ; Obeid v R  NSWCCA 309 at ; Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 per Sir Anthony Mason NPJ.
The offence extends to politicians, such as a member of the NSW Legislative Council: Obeid v R (2015) 91 NSWLR 226 at –. Members of Parliament are entrusted with certain powers and discretions on behalf of the community, and they must be free to exercise those powers and discretions in the public interest, unfettered by considerations of personal gain or profit: Horne v Barber (1920) 27 CLR 494 per Rich J. The system of government expects, and depends on, individual Ministers to do the right thing: R v Macdonald  NSWSC 638 at .
As a common law offence, the penalty for misconduct in public office is at large. In such instances it is the practice of the court to adopt an analogous or corresponding statutory offence, where available, as a reference point for the imposition of penalty: Blackstock v R  NSWCCA 172 at ; citing R v Hokin (1922) 22 SR (NSW) 280. However, the courts have emphasised that the statutory analogue is a point of reference only; it does not establish a kind of de facto maximum: Blackstock v R at ; Jansen v R  NSWCCA 301 at .
The penalty for an offence of being an accessory before the fact to misconduct in public office is also at large, as an accessory before the fact is liable to the same punishment as the principal offender: s 346 Crimes Act 1900. The same approach of sentencing having regard to a statutory reference point, as set out in R v Hokin, may be applied: Jaturawong v R  NSWCCA 168 at . The misconduct in Jaturawong v R involved the offender corruptly receiving payments whilst acting as the manager of a registry of the RTA. Both the offender and the Crown accepted that the relevant reference point was Pt 4A Crimes Act which provides for offences of corruptly receiving commissions and other corrupt practices which carried a maximum penalty of 7 years imprisonment: Jaturawong v R at .
Assessing objective seriousness
Given the offence can cover a wide range of conduct, the circumstances of a given offence and offender are likely to vary enormously; it is not helpful to attempt to break the offence up into artificial sub-categories: Jansen v R  NSWCCA 301 at .
The court said in Blackstock v R  NSWCCA 172 at :
By way of explanation of the rationale for the offence, Doyle CJ said in Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63 at 66:
It is clear, I consider, that the .... offence ... strikes at the public officer who deliberately acts contrary to the duties of the public office in a manner which is an abuse of the trust placed in the office holder and which, to put it differently, involves an element of corruption. It may be that the mere deliberate misuse of information is sufficient to give rise to an offence, but the further allegation of an intent to receive a benefit clearly, in my opinion, brings the matter within the ambit of the common law offence.
This statement of the purpose of the applicable rule of criminal responsibility assists in the task of assessing the objective seriousness of the offending in this case: see also R v Quach  VSCA 106; (2010) 27 VR 310 at –; and Attorney General’s Reference (No 3 of 2003)  EWCA Crim 868;  1 QB 73 at –.
Where relevant, the amount of money involved is a highly relevant consideration in assessing the objective seriousness of the offending: Blackstock v R at . In that case, the offender had channelled government contracts to a company he had specifically established for that purpose, and the level of profitability indicated the degree of abuse of office involved: Blackstock v R at .
However, the offence need not involve monetary amounts to be objectively serious. In Hughes v R  NSWCCA 15, a police officer improperly accessed the COPS database for illegitimate purposes, passed on the information so gained, and failed to report admissions to crimes to appropriate police officers. The offending was correctly characterised as of a high level of objective seriousness: Hughes v R at . Jansen v R  NSWCCA 301 is a further example of the offence involving access and dissemination of confidential police information.
In the case of misconduct on the part of a politician, the damage caused by the offence is not measured by any material loss to the State or gain to the offender; the real harm is the damage caused to the institutions of government and public confidence in them: R v Obeid (No 12)  NSWSC 1815 at ; R v Macdonald  NSWSC 638 at , –. The offender’s conduct in R v Macdonald in exercising power conferred by a statute, as a Minister, for an improper purpose to confer a benefit on a third party was found to be a serious example of the offence: R v Macdonald at .
As a breach of trust is not part of the definition of the offence under common law, it does not constitute double counting for a sentencing judge to have regard to that factor; rather it “serves to emphasise the degree of departure from the proper standard that must be established”: Blackstock v R at  citing R v Quach (2010) 27 VR 310 at .
A very significant matter in the assessment of any level of criminality is the nature of the duty owed and the extent of the breach. The more senior the public official, the greater the level of public trust in their position and the more onerous the duty that is imposed: R v Obeid (No 12) at , . Mr Obeid’s offence was regarded by the court as a very serious example because of the onerous nature of the duty owed as a parliamentarian compared to other officials, and the extent of his departure from it: R v Obeid (No 12) at . General deterrence, denunciation and recognition of harm done to the community were the dominant considerations in determining the appropriate sentence. No penalty other than imprisonment was appropriate in that case given the nature of the offending: R v Obeid (No 12) at .
Publicity will only be considered where “it reaches such proportion as to have a physical or psychological effect on the offender”: R v Obeid (No 12) at  applying Duncan v R  NSWCCA 78 at .
See further Extra-curial punishment at [10-520].
[20-195] Resisting/hindering/impersonating police
A person who hinders, resists, or incites another person to hinder or resist, a police officer in the execution of their duty is liable to imprisonment for 12 months and/or a fine of 20 penalty units: s 60(1AA) Crimes Act 1900.
Offences of assault and other actions against police and other law enforcement officers are contained in Pt 3 Div 8A (see [50-120] Assaults etc against law enforcement officers and frontline emergency and health workers).
It is also a summary offence to impersonate a police officer: s 546D(1) Crimes Act. A maximum penalty of 2 years imprisonment and/or a fine of 100 penalty units applies. Section 546D(2) provides for an aggravated form of the offence where a person not only impersonates an officer but purports to exercise a power or function as a police officer, with intent to deceive. A maximum penalty of 7 years’ imprisonment applies.
The offence of impersonating a police officer was formerly in s 204 Police Act 1990. The maximum penalty was 6 months imprisonment and/or a fine of 100 penalty units. On 1 July 2007, the offence was replaced by s 546D, which was inserted into the Crimes Act by the Police Amendment (Miscellaneous) Act 2006. These amendments may be taken as an indication by Parliament that such offences were to be regarded as more serious and warranted a higher level of criminal sanction than was previously the case: Opacic v R  NSWCCA 294 at .
The aggravated offence under s 546D(2) committed in Opacic v R was “significantly serious” given the target of the applicant’s deception was a young woman whose vulnerability was exploited for the applicant’s own sexual gratification: Opacic v R at .