R v Rogerson [1992] HCA 25; (1992) 174 CLR 268; (1992) 60 A Crim R 429 (17 June 1992)

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R v  Rogerson  [1992] HCA 25; (1992) 174 CLR 268; (1992) 60 A Crim R 429 (17 June 1992)

HIGH COURT OF AUSTRALIA

THE QUEEN v.  ROGERSON  [1992] HCA 25; (1992) 174 CLR 268
F.C. 92/021
[1992] HCA 25; (1992) 60 A Crim R 429
Criminal Law
High Court of Australia
Mason C.J.(1), Brennan(2), Deane(3), Toohey(2) and McHugh(4) JJ.

CATCHWORDS

Criminal Law - Attempt to pervert course of justice - Elements of offence - Police investigations - Whether part of course of justice - Frustrating or deflecting possible criminal prosecution - Whether identifiable offence must be in contemplation of accused or investigators.

HEARING

Canberra, 1991, November 5, 6;
Sydney, 1992, June 17. 17:6:1992

DECISION

MASON C.J. McHugh J. has set out the facts and the circumstances in which this application for special leave to appeal comes before the Court. The Crown brings the application in order to challenge the statement of principle formulated and applied by the New South Wales Court of Criminal Appeal which resulted in that Court quashing the convictions of the three respondents of the offence of conspiring to pervert the course of justice between 1 May 1985 and 31 July 1986. The charge of conspiracy arose out of an alleged agreement to fabricate evidence which had as its object the frustration or diversion of a police investigation into the possible commission of a crime. The Court of Criminal Appeal (Lee C.J. at C.L., with whose judgment Grove and Loveday JJ. agreed) held that the offence of attempting to pervert the course of justice by action of the kind allegedly agreed upon cannot be established in the absence of proof by the Crown of "the general nature of the charge, which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged" (1)  Rogerson , Nowytarger and Paltos (1991) 51 A Crim R 359, at p.369 According to the Court of Criminal Appeal, except in the case where the accused asserts a bogus crime, the Crown must lead evidence that an identifiable crime has been committed or evidence that the investigating officers have evidence that raises a suspicion or belief that such a crime has been committed.

2. Conspiracy to pervert the course of justice, like an attempt to pervert the course of justice, is a punishable misdemeanour (2) Reg. v. Vreones (1891) 1 QB 360, at pp 366-367; James v. Robinson (1963) 1 CLR 593, at p 618; Reg. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, at p 609. An attempt pervert the course of justice consists in "the doing of some act which has a tendency and is intended to pervert the administration of public justice", to repeat the words of Pollock B. in Reg. v. Vreones (3) (1891) 1 QB, at p 369. As the decision in that case indicates, the course of justice is not confined to justice as it is administered by the orthodox court system. In Vreones, the offence consisted in the accused adulterating samples to be used by arbitrators who were "to be considered as a tribunal administering public justice", to quote once again the words of Pollock B. (4) ibid. The course of justice relevantly includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially.

3. It has been suggested that "the course of justice" and "the administration of justice" include police investigations as such. True it is that some judicial comments are capable of being understood as lending support to that bald proposition (5) See Reg. v. Bailey (1956) NI 15, at p 26; Field (1964) 48 Cr App R 335, at p 340; Reg. v. Kane (1967) NZLR 60, at p 63; Reg. v. Thomas (1979) QB 326, at pp 330-331; and especially Reg. v. Selvage (1982) QB 372, at p 381. These comments have been made for the most part in cases in which a person has been convicted of an attempt to pervert the course of justice by misleading police in their investigation of a crime or suspected crime.

4. But police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings. In James v. Robinson, Kitto, Taylor, Menzies and Owen JJ. stated (6) (1963) 109 CLR, at p 606:
"The proposition that proceedings are pending in
criminal cases after a person has been arrested and charged
is firmly established".

South Australia in Reg. v. Todd (7) (1957) SASR 305, at p 331of the proposition that the course of justice under consideration includes the investigation by the police of facts for the purpose of ascertaining whether or not a crime has been committed.

5. In this respect, it is important to note that the expression "the course of justice" is synonymous with the expression "the administration of justice". In no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions (where appropriate) and assist in bringing prosecutions. As Lord Blackburn pointed out in Coomber v. Justices of Berks (8) (1883) 9 App Cas 61, at p 67 "the administration of justice, both civil and criminal, and the preservation of order and prevention of crime by means of what is now called police" are separate functions and not one single function. It follows that I do not accept the contrary view which was expressed by Lord MacDermott in Reg. v. Bailey (9) (1956) NI 15, at p 26, and followed by the New Zealand Court of Appeal in Reg. v. Kane (10) (1967) NZLR, at p 64:

"But the administration of public justice, particularly
in the criminal sphere, cannot well be confined to the
processes of adjudication. In point of principle we think
it comprehends functions that nowadays belong, in practice
almost exclusively, to the police, such as the investigation
of offences and the arrest of suspected persons; and we see
no good reason for regarding these preliminaries as beyond
the scope of the category we are now considering."

6. Accordingly, I would also reject the view which may be implicit in the judgment of du Parcq J. in R. v. Sharpe (11) (1938) 1 All ER 48, at p 51 that the course of justice begins to run as soon as a crime is committed. But his Lordship was there concerned principally to rebut the suggestion that there could be no offence of conspiracy to pervert the course of justice unless proceedings are pending or have commenced. And he was quite right in doing so. The fact that police investigation stands outside the concept of the course of justice does not mean that, in appropriate circumstances, interference with a police investigation does not constitute an attempt or a conspiracy to pervert the course of justice.

7. It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed (12) Reg. v. Murphy (1985) 158 CLR, at p 609; Vreones; Sharpe; Kane; Reg. v. Spezzano (1977) 76 DLR (3d) 160; Reg. v. Thomas. That is because 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 (13) Reg. v. Spezzano (1977) 76 DLR (3d), at p 163. So, in Kalick v. The King (14) (1920) 55 DLR 104, at p 109, it did not matter whether the police officer intended to institute a prosecution; it was sufficient that, being apprehensive of a prosecution, the accused gave a bribe to prevent it. 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.

8. Accordingly, I agree with Brennan and Toohey JJ. that 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 and can ground the offence of conspiring to pervert the course of justice.

9. It was not suggested in argument, nor could it be suggested, that it was necessary for the Crown to prove as an element of the offence charged that the respondents had committed a specific crime, that crime being the subject of a possible prosecution. Indeed, counsel for the respondents did not in terms contend that it was necessary for the Crown to lead evidence, as the Court of Criminal Appeal held, that an identifiable crime had been committed or that the investigating officers believed or suspected that such a crime had been committed. However, counsel for the respondent Paltos did argue that evidence was required to show that the investigation being undertaken would "in the ordinary course lead to an identifiable course of justice" and that may amount to much the same thing. For my part, I would reject both the proposition stated by the Court of Criminal Appeal and the variation of it suggested by counsel. The necessity of proving that an act has a tendency to pervert the course of justice by frustrating or deflecting a possible criminal prosecution and that the act was intended to have that effect does not require evidence that a prosecution for a particular or identifiable offence was in contemplation either by the accused or by investigating officers. In this respect, in a case such as the present, it is enough that there is evidence that an investigation into the relevant transaction or transactions could lead to a prosecution for some offence. Then, it will be a question of determining whether, in the light of that and any other material evidence, the act or acts done by the accused had a tendency to pervert the course of justice and was or were intended to have that effect. If the proposition formulated by the Court of Criminal Appeal were to prevail, persons admittedly guilty of serious criminal activity in circumstances where the particular offences were not identified could not be convicted of an attempt or conspiracy to pervert the course of justice by misleading police investigators or by taking other action having the effect and with the intention of frustrating a prosecution.

10. However, absence of evidence pointing to the commission or possible commission of a particular or an identifiable offence may make it more difficult to establish that the act done by the accused has a tendency to pervert the course of justice by deflecting the bringing of a prosecution for some offence or that it was done with intent to bring about that result. That may be so in a case where, as here, the act or acts relied upon were intended to deceive the police in the course of an investigation.

11. I agree with the comments of Brennan and Toohey JJ. concerning proof of intent to pervert the course of justice and their Honours' reasons with respect to the sufficiency of the trial judge's directions to the jury and the sufficiency of the evidence to support an inference of intent on the part of the respondents  Rogerson  and Paltos to deflect the possible institution of criminal proceedings, and thus to support their convictions.

12. I would grant special leave to appeal for the reasons given by their Honours and I would allow the appeals in the case of  Rogerson  and Paltos, but dismiss the appeal in the case of Nowytarger. In the cases of  Rogerson  and Paltos, I agree with the consequential order proposed by Brennan and Toohey JJ.

BRENNAN AND TOOHEY JJ. McHugh J. has recited the relevant facts giving rise to this appeal. The principles which, in our opinion, apply to those facts are as follows:

2. At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence (15) Reg. v. Andrews (1973) QB 422, at p 425; Reg. v. Rowell (1978) 1 WLR 132, at p 138; (1978) 1 All ER 665, at p 671; Machin (1980) 71 Cr App R166, at p 170; (1980) 1 WLR 763, at p 767. It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice (16) Reg. v. Vreones (1891) 1 QB 360, at p 369; Reg. v. Rowell (1978) 1 WLR, at p 138; (1978) 1 All ER, at p 671; Machin (1980) 71 Cr App R, at p 170; (1980) 1 WLR, at p 767. A conspiracy to pervert the course of justice, like any other conspiracy to commit an offence, is an inchoate offence in the sense that it is complete without the doing of any act save the act of agreeing to pervert the course of justice (17) Reg. v. Kamara (1974) AC 104, at p 119; Reg. v. Panayiotou (1973) 1 WLR 1032, at p 1036; (1973) 3 All ER 112, at pp 115-116. Such an agreement imports a common intention among the conspirators that an act be done by somebody which will have the effect of perverting the course of justice. To describe these offences in that way is to leave without definition the terms "the course of justice" and "pervert". These terms have not been exhaustively defined in the cases (18) Reg. v. Todd (1957) SASR 305, at p 328; Gillies, The Law of Criminal Conspiracy, 2nd ed. (1990), p 133. Although it would be as unwise to attempt to define these terms exhaustively as it is impossible to do so, it is necessary to indicate the nature of these concepts in order to resolve the present case.

3. Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case (19) Reg. v. Todd (1957) SASR, at p 328. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice (20) It seems that the act, though otherwise lawful, may be unlawful by reason of the intent to pervert the course of justice: Reg. v. Kellett (1976) QB 372, at p 391. An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice. Each of these offences requires a specific intent. In the case of an attempt to pervert the course of justice, and in the case of perverting the course of justice, the intent which must accompany the relevant actus reus is that the course of justice should be perverted in one of the ways mentioned. To define the intent required in a case of a conspiracy to pervert the course of justice, the law of conspiracy must be examined.

4. What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object, as Willes J., delivering the opinion of the judges in Mulcahy v. The Queen (21) (1868) LR 3 HL 306, at p 317, said:

"A conspiracy consists not merely in the intention of two
or more, but in the agreement of two or more to do an
unlawful act, or to do a lawful act by unlawful means. So
long as such a design rests in intention only, it is not
indictable. When two agree to carry it into effect, the
very plot is an act in itself, and the act of each of the
parties, promise against promise, actus contra actum,
capable of being enforced, if lawful, punishable if for a
criminal object or for the use of criminal means."

As the "very plot" is the actus reus of the offence, the offence is complete before any further unlawful act is done or any further lawful act is done to carry the unlawful object into effect. When Willes J. spoke of an "unlawful act", he was speaking of an act which has not occurred when the conspiracy is formed. He must have meant an act which, if done in circumstances contemplated by the conspirators, would be unlawful. Although acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed, those acts are not themselves elements of the offence. In that sense, it is immaterial whether an act done in pursuance of a criminal conspiracy is, in the event, unlawful, provided the act was intended to be done in circumstances which, had they eventuated, would have made the act unlawful. In the present case, we are concerned with an alleged conspiracy to do an unlawful act, namely, an act that would have the effect of perverting the course of justice. The prosecution had to prove that the conspirators intended that, if the relevant act was done pursuant to the conspiracy and in the circumstances contemplated by the conspirators, it would have the effect of perverting the course of justice.

5. A conspiracy to pervert the course of justice may be entered into though no proceedings before a court or before any other competent judicial authority are then pending (22) See R. v. Sharpe (1938) 1 All ER 48, at p 51 or are even contemplated by anyone other than the conspirators. A coven of criminals who agree to commit a crime and to mislead the subsequent investigation so that an innocent person will be prosecuted for the crime-to-be-committed are guilty not only of a conspiracy to commit the crime but also of a conspiracy to pervert the course of justice by inducing the institution of a false prosecution. At the time of such a conspiracy, no prosecution for the yet-to-be-committed crime could be pending and no prosecution for that crime would be contemplated by anyone other than the conspirators, yet the conspiracy to pervert the course of justice would be complete.

6. In R. v. Porter (23) (1910) 1 KB 369, it was said that no specific intent was required on a charge of conspiracy to produce a public mischief consisting in an agreement to indemnify a bail against his liability. To an argument that it was necessary to find an intent to obstruct and pervert the course of justice, Lord Alverstone C.J. replied (24) ibid., at p 373 that it was "difficult to conceive any act more likely to tend to produce a public mischief" than an agreement to indemnify a bail. In R. v. Boston (25) [1923] HCA 59; (1923) 33 CLR 386, at p 392, Knox C.J. put an even broader proposition:

"It is settled law that an agreement or combination to do an
act which tends to produce a public mischief amounts to a
criminal conspiracy. In such a case the tendency of the
agreement is a conclusion of law and there is no necessity
for a finding by the jury of intent (R. v. Porter)."

7. Of course, where there is an agreement to do an act that has a manifest tendency to pervert the course of justice, proof of an agreement to do the act may suffice to prove the intent thereby to pervert the course of justice. But, if the act to be done is of such a nature that its tendency to pervert the course of justice is not manifest, proof of an agreement that the act be done does not, without more, amount to proof of a conspiracy to pervert the course of justice: in such a case, there has to be proof of an intent to do an act that will have the effect of perverting the course of justice. The state of an alleged conspirator's knowledge of the nature of the relevant act is of critical importance (26) Reg. v. Churchill (1967) 2 AC 224; see also Thomson (1965) 50 Cr App R 1, at p 2. An act which is not known to have the tendency or is not intended to have the effect of perverting the course of justice is not an act the doing of which attracts a liability to punishment as for an attempt to pervert, or a perverting of, the course of justice. An agreement that such an act be done made among persons who do not know that the act has such a tendency and who do not intend it to have that effect is not a conspiracy to do an unlawful act. To establish a conspiracy to pervert the course of justice, it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect. In this context, knowledge and intent relate to the acts and circumstances contemplated by the conspirators; the legal complexion of those acts and circumstances is a question of law.

8. Although it is well established that an attempt to pervert the course of justice can be committed at a time when no curial proceedings of any kind have been instituted (27) Reg. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, at p 609, the reasoning which has led to this conclusion in some cases does not accord with the principles above expressed. In some cases, where the scope of the offence of an attempt to pervert the course of justice has been held to extend to misleading the police in the course of their investigations into a crime, police investigations have themselves been treated as a part of the "course of justice" (28) R. v. Sharpe; Reg. v. Bailey (1956) NI 15; Reg. v. Kane (1967) NZLR 60; Reg. v. Thomas (1979) QB 326. Though we agree with the result in those cases, we are respectfully unable to accept that reasoning. The course of justice does not begin until the jurisdiction of some court or competent judicial authority is invoked. As McHugh J. shows, there is no historical support for an extension of the "course of justice" in the way which commended itself to the English Court of Appeal in Reg. v. Selvage (29) (1982) QB 372, at p 381 where it was said that "a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress" (our emphasis). Neither the police nor other investigative agencies administer justice in any relevant sense. However, it is their function to bring or to assist in bringing prosecutions as part of their duty to enforce the law (30) See Reg. v. Commissioner of Police of the Metropolis; Ex parte Blackburn (1968) 2 QB 118 and, sometimes, to institute proceedings of a disciplinary nature before an appropriate tribunal under an applicable disciplinary code (31) As to misconduct by police officers, see Police Regulation (Allegations of Misconduct) Act 1978 (N.S.W.), s.22. A tribunal whose jurisdiction extends to the enforcing or adjusting of rights and liabilities in accordance with law and whose procedure is judicial in character is engaged, when exercising that jurisdiction, in administering justice so that the commencement of proceedings invoking that jurisdiction may set in train a relevant course of justice. The offence of perverting or attempting to pervert the course of justice may be committed with respect to such proceedings before a tribunal as well as with respect to proceedings before a court.

9. Although police investigations into possible offences against the criminal law or a disciplinary code do not form part of the course of justice, an act calculated to mislead the police during investigations may amount to an attempt to pervert the course of justice. 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, amounts to an attempt to pervert the course of justice. It impairs the court's capacity to do justice in the actual circumstances of the case. In Kalick v. The King, a bribe to a policeman to induce him not to prosecute for an offence against the Saskatchewan Temperance Act was held to be a corrupt interference with the due "administration of justice" for the purposes of s.157 of the Canadian Criminal Code. Anglin J. said (32) (1920) 55 DLR 104, at p 109:

" It is quite immaterial whether the police officer
actually intended or contemplated instituting a
prosecution. It suffices that the appellant gave the
bribe with intent to head off such a proceeding. The due
administration of justice is interfered with quite as much
by improperly preventing the institution of a prosecution
as by corruptly burking one already begun."

We respectfully agree. The gravamen of the offence of an attempt to pervert the course of justice is an interference with the due exercise of jurisdiction by courts and other competent judicial authorities. As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice. Subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed.

10. When the Crown must rely on inference to prove the intent of alleged conspirators to pervert the course of justice by the doing of an act which tends to mislead the police in their conduct of an investigation into a possible offence, the evidence must be capable of supporting at least -

(1) an inference that the conspirators believed that the
police might invoke the jurisdiction of a court or of
some competent judicial authority or might invoke that
jurisdiction unless the relevant act deflected them;
and
(2) a further inference that the conspirators either knew
that the relevant act would have a manifest tendency to
pervert the course of justice in a relevant respect or
intended that the act should have that effect.

It is not sufficient for the Crown to prove merely an intention to deceive the police.

11. These principles were carried fully into the directions given by the learned trial judge when he directed the jury as follows:

" The Crown says that the conspiracy to fabricate the
source of the moneys deposited in the National Australia
Bank accounts occurred at a time when police investigations
were inevitable and that such investigations could lead
only to criminal proceedings against  Rogerson  and/or
Nowytarger - that is, criminal proceedings were imminent
or threatened. To establish its case the Crown must show
that what was done pursuant to the agreement - that is the
conspiratorial agreement to pervert the administration of
justice - would have that tendency and was so intended by
those who are parties to the conspiracy. The Crown says
that the acts of  Rogerson , Nowytarger and Karp in pursuance
of the agreement were intended to foil the police inquiry
and clearly had that effect - that is the fabrication of
the false agreement, of the receipts and the accounts
given to the police by those three persons. And, of
course, on the Crown case all of those events occurred
after the police inquiry had commenced, if you accept that
it commenced on 16 July."

And later:

" Members of the jury, when I was summarising the Crown
case, I said words to this effect, that in the Crown case
the conspiracy to fabricate a false account of the moneys
deposited in the National Australia Bank account occurred
at a time when the police investigations were inevitable
and that such investigations could lead to criminal
proceedings against either the accused Nowytarger or
 Rogerson  or both. I think it is implicit in what I said
to you there ..., you would have to be satisfied beyond a
reasonable doubt that the accused that you were considering
believed that a police enquiry would take place in that
context at that time."

His Honour did not direct the jury that the offence charged could have been committed if the alleged conspirators intended, by fabricating the agreement, to foil a police investigation which could have led to proceedings against  Rogerson  before the Police Tribunal (33) Police Regulation (Allegations of Misconduct) Act 1978 (N.S.W.), ss.36,41. The prosecution pitched its case on the level of criminal proceedings and his Honour directed the jury accordingly, that is, he directed them that there must be an agreement to do something which would have a tendency to foil a police inquiry into the circumstances of the deposit in the Bank, and thereby deflect the police from instituting criminal proceedings against  Rogerson  and, perhaps, Nowytarger.

12. Although the direction given by his Honour was correct, the question remains whether the evidence in the case was capable of supporting a conviction. The Court of Criminal Appeal held that it was not. Lee C.J. at C.L., speaking for the Court, pointed out (34)  Rogerson , Nowytarger and Paltos (1990) 51 A Crim R 359, at p 365 that:

"At no time in the summing up did the learned trial judge
specify or define the nature of the illegality giving rise
to the deposit of $110,000. The nearest he got to dealing
with it was to say that the Crown suggested that the likely
source of the money was the Miss Jones incident."

His Honour distinguished the present case where no specific crime was proved to be the source of the $110,000 from a case in which the evidence proved the commission of a crime. In a case of the latter kind, his Honour pointed out, an offender who lied to police investigating his crime in order to protect himself would "at least know the general nature of the proceedings that will be faced if proceedings are to be taken" (35) ibid., at p 369. Similarly, in such a case, a friend of the offender who lied to the police in order to protect the offender would contemplate proceedings arising from evidence establishing the commission of the offence. After referring to Selvage, his Honour said (36) ibid:

"it is not sufficient merely to say of the appellants that,
by telling lies to the police, they indicate that they
have done something unlawful which could, if it were
known, result in proceedings brought against them; there
must, when attempting to pervert the course of justice is
charged, be positive evidence put forward to point to the
kind of proceedings, in the sense of the general nature
of the charge, which the accused had in his contemplation
when he engaged in the conduct which resulted in his being
charged with attempting to pervert the course of justice."
(Emphasis added.)

With respect, proof that an offence has been committed or that a charge of a given nature is to be laid is not - at least in theory - necessary to prove that an agreement to deceive police conducting an investigation is an unlawful conspiracy. However, absence of proof that a particular offence has been committed may make it more difficult to prove that an act which has been done to deceive the police has a tendency to pervert the course of justice by deflecting them from bringing a prosecution for some offence and that the act was intended to have that result.

13. In the present case, there was ample evidence that  Rogerson , Nowytarger, Paltos and Karp agreed that a contract be produced purporting to evidence a sale to Karp by  Rogerson  and Nowytarger of a Bentley car and that that contract should be used to provide  Rogerson  and Nowytarger with an explanation of the source of $60,000 being part of the $110,000 withdrawn from the National Australia Bank by  Rogerson  and Nowytarger on 1 July 1985. There was evidence on which the jury was entitled to find that the purported sale of the Bentley car was fictitious, as each of  Rogerson , Nowytarger, Paltos and Karp knew. As the evidence showed that the arrangement to produce the contract was made between the four of them at a meeting in a Kings Cross restaurant in mid-July 1985 which followed the discovery by  Rogerson  and Nowytarger that they had been photographed withdrawing the $110,000 from accounts they had opened in false names at the Bank, the inference could be drawn that the purpose of producing the contract was to fabricate evidence in support of a story which would deceive anybody who inquired of  Rogerson  and Nowytarger as to the source of $60,000 which was part of the amount withdrawn. Police officers, alerted to the fact of the photographed withdrawal, did inquire of  Rogerson  and Nowytarger as to the source of the amount withdrawn.  Rogerson  and Nowytarger gave the police the explanation as to $60,000 that it was the purchase price of a Bentley car sold to Karp. Karp, who gave evidence for the Crown, admitted that the ostensible purchase was a sham. Thus the chief issue in contention on this appeal - though the question did not loom large at the trial - is whether there was sufficient evidence, in the cases against the respective respondents, to support a finding that the particular respondent had the intent that, by producing the contract in support of a false story, the police would be deflected from instituting a prosecution for some offence - not, of course, for the offence of conspiracy. It is in this context that the absence of proof of a specific offence assumes significance.

14. The fact that  Rogerson , who was then a Detective Sergeant of police, and Nowytarger had together withdrawn $110,000 from bank accounts opened by them under false names, though engendering suspicion, was freely admitted by  Rogerson  in his interview with the investigating police. By asserting the false story of the sale of a Bentley car, the inference can be drawn that he intended to deceive the police and that the contract was produced for that purpose. But did he intend to deflect the police from instituting either a prosecution for a criminal offence or disciplinary proceedings? There was evidence that  Rogerson  had handed over a bag containing packets of a white powder to a Miss Jones - the pseudonym of a witness who was an admitted drug courier and drug addict - at the Kingsford Smith Airport on or about 14 May 1985 and had received in exchange a large sum of money in $50 notes in a black red-trimmed travel bag. Next,  Rogerson  enlisted assistance from Paltos and then from Karp (who attended at the restaurant at Paltos' request to assist  Rogerson ) to produce a deceptive account which he,  Rogerson , might use to conceal the true source of $60,000. Then, on 24 July 1985,  Rogerson  rang Detective Inspector Strong to say that he believed that certain police officers would like to be able to prove that  Rogerson  was involved in criminal activities and to say that the money withdrawn from the Bank came from legitimate sources. Later, when Mr Strong (by then Detective Chief Superintendent) interviewed him on the subject of the withdrawal of the money from the Bank, he sought the customary warning before answering because he had heard that the police believed that he "had committed a criminal offence". He understood at the time of the police interview that the police held the belief that a prima facie case existed that he had obtained the money withdrawn from the Bank unlawfully or that the money was stolen. In our opinion, this evidence is sufficient to support a finding that  Rogerson  used the fabricated sale to explain the source of $60,000 with the intention of deceiving the police and thereby deflecting the police from instituting criminal proceedings based on their belief (as  Rogerson  understood) that the money withdrawn from the Bank had been unlawfully obtained.  Rogerson  gave evidence asserting that the Bentley car had in fact been sold to Karp whom he had met socially with Nowytarger and that Karp had paid for the car in cash by instalments which  Rogerson  put into a biscuit tin in a friend's safe. He said that the instalments had been paid as work on repairing the car proceeded.  Rogerson  said that nearly the whole of the price had been paid by November 1984 although Karp did not see the car until after July 1985, when the contract had been signed. The jury, if satisfied that  Rogerson 's evidence was false, were entitled to conclude beyond reasonable doubt that  Rogerson  entered into the conspiracy to produce the fictitious contract for the purpose of deceiving the police as to the circumstances in which the money in the Bank was obtained and deflecting them from instituting criminal proceedings in relation to that money and for the purpose of causing the fabricated contract to be given in evidence in any proceedings that were instituted against him. Accordingly, there was sufficient evidence to support the conviction of  Rogerson .

15. The respondent Paltos secured the attendance of Karp at the Kings Cross restaurant meeting where the arrangement was made to produce the contract of sale. According to Karp, Paltos introduced him to  Rogerson  and Nowytarger at that meeting. The case against Paltos in the material respect rests upon a recording of a conversation between himself, Karp and one Palmer. Karp commented or might reasonably have been understood by the jury as having commented that "they" recognized  Rogerson  as the person withdrawing the money from the Bank and "think now that this money is from ill-gotten". That comment elicited from Paltos the observation: "Drugs, from drugs, tell the truth, drugs". Karp accepted the correction: "Well, he said drugs right okay ..." This evidence showed that Paltos knew that the contract was to be produced to deflect an investigation into some drug-related activity by  Rogerson . Accordingly, the evidence was sufficient to support his conviction.

16. The case against Nowytarger established his participation in the production of the false contract of sale, for he signed that document as a seller. Moreover, after Karp had pleaded guilty to the charge of conspiring with the three respondents to pervert the course of justice, Nowytarger visited Karp in the remand centre at Long Bay to obtain his assurance that he, Karp, would "stick to the story as agreed". But there is no evidence against Nowytarger that the deception which was to be practised as to the source of $60,000 was expected or intended by him to deflect the police from instituting proceedings of any kind against  Rogerson . The circumstances are heavy with suspicion but the proof is insufficient to support a conviction.

17. It follows that the Court of Criminal Appeal was in error in quashing the convictions of  Rogerson and Paltos but correct in quashing the conviction of Nowytarger.

18. The question remains whether special leave should be granted to canvass the issues in this case. The nature of the offences of attempting to pervert the course of justice and conspiracy to pervert the course of justice is a matter of sufficient importance to justify the grant of special leave. To allow the decision of the Court of Criminal Appeal to stand would be to allow a misunderstanding of these offences, which are important in protecting the integrity of the criminal process, to be perpetuated in other cases. Although we would not have granted special leave merely to review an application of the correct principles to the facts of the case, this case is a significant illustration of the operation of the relevant principles. Adopting the approach stated by the majority of this Court in Reg. v. Glennon (37) Unreported, 6 May 1992, we would grant special leave to appeal. Having done so, we would allow the appeals in the case of  Rogerson  and Paltos and dismiss the appeal in the case of Nowytarger. In the cases of  Rogerson  and Paltos, the order of the Court of Criminal Appeal should be set aside and the matter remitted to that Court to hear and determine the appeals by  Rogerson  and Paltos in accordance with the judgment of this Court.

DEANE J. The detailed facts involved in these applications for special leave to appeal are set out in the judgment of McHugh J. It is unnecessary that I repeat them.

2. Special leave should be granted to the Crown to appeal to this Court from a verdict of acquittal entered by a Court of Criminal Appeal "only in very exceptional circumstances" (38) See R. v. Lee [1950] HCA 25; (1950) 82 CLR 133, at p 138; Reg. v. Benz [1989] HCA 64; (1989) 168 CLR 110, at pp 119-120, 127, 146. As I pointed out in Benz (39) ibid., at p 120, that broad proposition should not be seen as empty rhetoric which can be formally acknowledged and effectively ignored. It is dictated by considerations to which regard must be had in determining what is in the interests of justice both "generally" and "in the particular case" (40)Judiciary Act 1903 (Cth), s.35A(b).

3. It is true that Davern v. Messel (41) [1984] HCA 34; (1984) 155 CLR 21 establishes that the common law doctrine against double jeopardy is not infringed by a Crown appeal against a verdict of acquittal entered by an intermediate appellate court. Nonetheless, the main considerations which support that doctrine also militate against the grant of special leave for a Crown appeal against an acquittal by a Court of Criminal Appeal in other than very exceptional circumstances. The ordinary citizen who is told in unqualified terms by a court of a State constituted by three of the State's senior judges that he or she is acquitted for the reason that, as a matter of law, he or she was entitled to be adjudged not guilty of the crime with which he or she was charged is scarcely likely to comprehend that the acquittal is not as authoritative or binding as it would have been if he or she had been acquitted at first instance by a judge or magistrate of an inferior court or by a jury of lay persons. Moreover, in a context where both the prosecution and the court in a criminal case are likely to be seen by the ordinary citizen as emanations of governmental authority and where the costs of private legal representation are oppressively high, there is an undeniable element of harshness in a situation where a citizen who has been told by a competent court of a State that the criminal proceedings which the State has brought against him or her are resolved in his or her favour is subjected to the renewed jeopardy of an appeal by the State (42) See, generally, Davern v. Messel (1984) 155 CLR, at pp 67-68. To say, in that context, that the acquitted person cannot complain if the State subjects him or her to a further appeal since he or she enlivened the appellate process by appealing to the intermediate appellate court may have some validity as a debating point. It is, however, somewhat removed from reality. Indeed, in a context where the overwhelming balance of power and resources will ordinarily favour the State, the proposition that a person is fair game for a further appeal by the Crown by reason of the fact that he or she was acquitted by a Court of Criminal Appeal after being subjected to what the Court of Criminal Appeal has held to be a miscarriage of justice resulting in a wrong conviction seems to me to be singularly unpersuasive.

4. A further consideration which militates against the grant to the Crown of special leave to appeal to this Court from an acquittal entered by an intermediate appellate court arises from the nature of this Court's special leave process. The number of cases in which there can be a grant of special leave to appeal to this Court in criminal matters is necessarily limited. Consequently, in the overwhelming majority of cases, a verdict of acquittal entered by an ultimate State appellate court is final. That means that the considerations of justice and fairness which militate against a grant to the Crown of special leave to appeal against an acquittal operate in a context where, from the point of view of an individual accused, the grant or refusal of such leave is likely to have a somewhat arbitrary character in the sense that it is influenced by considerations other than the merits of the particular case. Inevitably, an accused person whose acquittal by a Court of Criminal Appeal is singled out for a comparatively rare grant of special leave to appeal to this Court is likely to feel, with some justification, that he or she has been singled out for adverse treatment.

5. The above general considerations which militate against a grant of special leave to appeal to the Crown from a verdict of acquittal entered by a Court of Criminal Appeal are at their strongest in a case where, as in two of the present applications, the respondent to the application for special leave to appeal to this Court has served a substantial period in custody and has then been released pursuant to the verdict of acquittal entered by the Court of Criminal Appeal. They are also heightened in a case where the members of a Court of Criminal Appeal were unanimous in entering a verdict of acquittal and this Court is closely divided about the outcome of an appeal from that verdict. Thus, the appearance (from the point of view of an individual accused) of a degree of arbitrariness which is inevitable in any case in which special leave is granted to appeal to this Court from a verdict of acquittal is underlined in the present case by the fact that, in the two cases in which appeals from verdicts of acquittal are being upheld, five of the eight judges who have dealt with the cases at an appellate level have concluded that verdicts of acquittal should be entered or should stand.

6. In the course of argument of the present applications, there was some discussion of what was meant by the expression "very exceptional circumstances" as used in past cases. In my view, nothing would be served by an attempt at further definition by synonym, description or example. The most that can be said is that special leave to appeal to this Court from a verdict of acquittal entered by a Court of Criminal Appeal plainly should not be granted unless the appeal will resolve some important issue of fundamental legal principle.

7. It is arguable that the decision of the Court of Criminal Appeal in the present case involves a question of principle of considerable general importance in that there are some passages in the judgment of Lee C.J. at C.L. (with whom Grove and Loveday JJ. agreed) which can, particularly if read in isolation, be construed as propounding a general rule to the effect that the offence of conspiring to pervert the course of justice in future criminal proceedings by deflecting or frustrating police investigations cannot be established unless the Crown prove "the general nature" of some criminal charge "which the accused had in his contemplation when he engaged in the conduct which resulted in his being charged" (43) per Lee J.,  Rogerson , Nowytarger and Paltos (1990) 51 A Crim R 359, at p 369 with the consequence that "(except where the accused asserts a bogus crime) either ... there must be evidence that an identifiable crime has been committed, or evidence that the police conducting the investigation have before them some evidence which raises a suspicion or belief that an identifiable crime has been committed" (44) ibid., at p 374. Such a general rule would, for example, involve the surprising consequence that a person who was proved (by, e.g., confessional statements) to have obtained large sums of money from serious criminal activity and to have conspired with others to pervert the course of anticipated criminal proceedings in respect of that activity by bribing potential witnesses to give false evidence, could only be convicted of conspiracy to pervert the course of justice if it were possible not only to prove that he had engaged in serious criminal activity but also to identify particular crimes which he had committed. As I followed the argument, however, none of the respondents sought to sustain such a broad and unqualified rule. More importantly, careful examination of the judgment of Lee J., particularly of its decisive final six paragraphs, discloses that the actual decision of the Court of Criminal Appeal did not depend upon acceptance of any such rule. To the contrary, the actual decision turned upon the particular circumstances of the case, including the prosecution's conduct of the trial, and upon the rejection of a proposition framed in narrow terms to fit those circumstances.

8. The alleged conspiracy in the present case involved the concoction of a false story to deflect or frustrate a likely police investigation (which in fact eventuated) of the source of a large sum of money which the respondent  Rogerson , a police officer, had deposited to the credit of a bank account which he had opened in a fictitious name. At the time of the actual concoction of the false story, no relevant curial proceedings were in train or in the contemplation of the authorities and no relevant police investigation had commenced. In Lee J.'s view, the prosecution had neither alleged nor proved that the moneys were the proceeds of some past criminal activity or, for that matter, that any past crime had been committed. Nor was there, at that time, police suspicion that an offence had been committed. In particular, the prosecution case against the respondents had not been "presented ... on the basis that ...  Rogerson  ... received the moneys which were subsequently deposited, from Miss Jones as the price of the 'white powder' which he gave her, i.e. by an illegal drug deal" (45) ibid., at p 375. While the circumstances gave rise to a strong suspicion "that the moneys (had) most likely come from an illegal source" (46) ibid, the prosecution had failed - indeed, had not sought - to establish that that was so. As Lee J. said (47) ibid., at p 363 (emphasis in text):

"And, of course, the fact that the story ... was proved
false did not necessarily relieve the Crown of negativing
that the moneys may have come from some other legitimate
source, eg gambling, before the jury could bring in a
verdict of guilty. No such considerations were ever
mentioned to the jury and there was a very good reason why
they were not, and that is that the Crown and the judge
took the view and put the case to the jury that, because
an inference was open from the making of the deposits and
the telling of the false story, the source was illegal,
the Crown had no obligation to prove what that illegal
source was - the Crown case at no time extended beyond
those limits."

9. Police inquiries do not, of themselves, constitute "the course of justice" for the purposes of the offence of perverting the course of justice. It is necessary, in a case involving alleged conduct to divert or frustrate police inquiries, to identify some actual or potential relationship between the alleged conduct and some pending, probable or possible curial proceedings whose course the accused intended to pervert. It is true that one can point to statements in the cases emphasizing the closeness of the connection between police investigations and pending, probable or possible curial proceedings in relation to the subject matter of those investigations (48) See, e.g., Reg. v. Selvage (1982) QB 372, at pp 380-381; Reg. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, at p 610. The closeness of that connection may, in some circumstances, found a conclusion that conduct aimed at frustrating or misleading police investigations was directed to perverting the course of justice in pending or possible future court proceedings. Nonetheless, such statements should not be permitted to divert attention from the fact that the offence of conspiring to pervert the course of justice involves conspiring to pervert the course of justice in curial proceedings. Where a conspiracy to mislead or frustrate police inquiries is involved, the offence of conspiring to pervert the course of justice will not be established unless it appears that a purpose of the conspiracy was, by misleading or frustrating the police investigation, to pervert the course of justice in pending or possible curial proceedings. For example, if the moneys involved in the present case had indeed come from a "legitimate source" such as "gambling" and the purpose of the concoction of the false story had been merely to conceal  Rogerson 's gambling activities from his police superiors, there would have been no conspiracy to pervert the course of justice. Necessarily, the onus lay upon the prosecution to exclude that or any other reasonable explanation of the acts of the accused. That is not to say that it is necessary to establish that an accused must have had particular identified curial proceedings in contemplation. It would, for example, suffice if the evidence established, whether directly or by inference, an intention to pervert the course of justice in any future curial proceedings that might ultimately be instituted in relation to the subject matter of the police inquiries.

10. On the other hand, if the evidence in the present case had actually established that the moneys deposited in the bank accounts with the National Australia Bank were the proceeds of criminal activity on the part of  Rogerson , the inference could more readily be drawn that a conspiracy to concoct a false story about their origins was directed to perverting the course of justice in any subsequent criminal proceedings relating to those criminal activities. In a context where the prosecution did not seek to prove the commission of some earlier offence and where not even a police investigation had commenced, the question obviously arose whether the evidence established any relationship at all between the conduct of the respondents and some pending, probable or possible course of justice. As I read the judgment of Lee J., the Court of Criminal Appeal held that the evidence failed to establish, or provide an adequate foundation for inferring, any such relationship. The basis of the actual decision to that effect was the rejection of the narrow proposition that, in a case such as the present where no identified curial proceedings at all were pending or in the contemplation of the authorities, it suffices to establish a conspiracy to pervert the course of justice to prove that persons have acted in concert to "fabricate a story as to the source of moneys which they have, but nothing further is shown to relate those moneys to the commission of some crime - as in this case" (49) per Lee J.,  Rogerson , Nowytarger and Paltos (1990) 51 A Crim R, at p 374. In my view, the Court of Criminal Appeal was plainly correct in rejecting that narrow proposition. Proof of the fabrication, by accused persons acting in concert, of a story to frustrate or mislead a police investigation of the source of moneys which are not proved to be unlawfully obtained would not, of itself, suffice to establish conspiracy to pervert the course of justice. There must also be proof that the fabrication was for the purpose of perverting the course of justice in pending or possible curial proceedings which the accused had in contemplation. It is true that the correctness of the factual conclusions reached by the Court of Criminal Appeal about the effect of the evidence, in the context of the conduct of the prosecution case at the trial, is debatable. The correctness of those factual conclusions does not, however, involve any important question of general principle of a kind which would sustain a grant of special leave to appeal to this Court from verdicts of acquittal entered by a court of criminal appeal.

11. Special leave to appeal should be refused.

McHUGH J. The Crown in right of the State of New South Wales seeks special leave to appeal against an order of the Court of Criminal Appeal of New South Wales entering acquittals in respect of an indictment which charged the respondents with conspiracy to pervert the course of justice between 1 May 1985 and 31 July 1986. The principal question in the application is whether, when that charge is based upon an agreement to fabricate evidence designed to interfere with or deflect a police investigation into the possible commission of a crime, proof of the offence requires, as that Court held (50)  Rogerson , Nowytarger and Paltos (1990) 51 A Crim R 359, at p 374, "evidence that an identifiable crime has been committed, or evidence that the police conducting the investigation have before them some evidence which raises a suspicion or belief that an identifiable crime has been committed."

The factual background

2. At all material times, the first respondent, Roger Caleb  Rogerson , was a serving member of the New South Wales Police Force. In May 1985, the second respondent, Morris Enrico Nowytarger, arranged with  Rogerson  for the latter to deposit sums of money totalling $110,000 in false names in two bank accounts with the National Australia Bank. On 1 July 1985, while  Rogerson  and Nowytarger were closing the accounts, they were photographed by the Bank's security cameras. On 11 or 12 July 1985, a police officer told Rogerson  that he had been photographed "with a criminal". Subsequent to that conversation but before 19 July 1985,  Rogerson  and the third respondent, Dr Nicholas John Paltos, met a solicitor, Ross Karp, in a restaurant. According to Karp, Paltos said that  Rogerson  had a problem and that he thought that Karp and Paltos could fix it.  Rogerson  then told Karp that he had money in "a bank account or bank accounts" in false names with a friend.  Rogerson  said that he needed "to explain how the moneys arrived in the account". Later the three men were joined by Nowytarger. Thereafter, the respondents and Karp agreed that Karp would prepare a sale agreement which would falsely show that Karp had paid $60,000 to  Rogerson  and Nowytarger for the sale of a Bentley car. The sale agreement was backdated to December 1983.

3. On 16 July 1985, a detective inspector, having been informed of the circumstances in which  Rogerson  and Nowytarger had been photographed at the Bank, commenced an investigation for the purpose of determining whether  Rogerson  had breached any departmental regulations or had committed any criminal offence in relation to the possession of the $110,000. On 4 October 1985, the inspector interviewed  Rogerson  who claimed that about $16,000 of the moneys deposited in the account belonged to him and "came about as a result of weeks and weeks of work spent in repairing a motor vehicle in my own time which was owned by Mr Nowytarger".  Rogerson  asserted the genuineness of the 1983 sale agreement and said that the moneys came from the sale of the vehicle to Karp. On 10 December 1985, Nowytarger visited Karp who was then in prison and asked him if he was going to "stick to the story as agreed". In March 1986 Nowytarger, when interviewed by police officers, maintained the genuineness of the sale agreement. When Paltos was interviewed by police, he declined to answer questions in respect of the matter.

4. A woman who gave evidence under the pseudonym "Miss Jones" also alleged that on about 14 May 1985 she gave  Rogerson  a large sum of money in exchange for a bag containing white powder in plastic bags. The trial judge told the jury:

"The Crown relies on the evidence of Miss Jones as pointing
to the likely source of at least some of the money that
went
into those accounts."

 Rogerson  denied that he had ever met the woman. His Honour also pointed out to the jury that there was no evidence that Nowytarger or Paltos had any knowledge of this alleged transaction.

5. On appeal the Court of Criminal Appeal of New South Wales unanimously held that the foregoing evidence failed to disclose the offence of conspiracy to pervert the course of justice. Lee C.J. at C.L., with whose judgment Grove and Loveday JJ. agreed, said (51) ibid:

"(except where the accused asserts a bogus crime) ... there
must be evidence that an identifiable crime has been
committed, or evidence that the police conducting the
investigation have before them some evidence which raises
a suspicion or belief that an identifiable crime has been
committed".

Conspiracy to pervert the course of justice

6. To attempt to pervert the course of justice is a common law misdemeanour (52) Reg. v. Vreones (1891) 1 QB 360, at p 367; Reg. v. Murphy [1985] HCA 50; (1985) 158 CLR 596, at p 609. The origin of the offence is obscure but it appears to have developed from the law which came to be categorised as a conspiracy to pervert the course of justice (53) Archbold, Pleading, Evidence and Practice in Criminal Cases, 43rd ed (1988), p 2462. As the English Court of Appeal pointed out in Reg. v. Rowell (54) (1978) 1 WLR 132, at p 138, however, the "use of the word 'attempt' in this context is misleading". The essence of the offence is "the doing of some act which has a tendency and is intended to pervert the administration of public justice" (55) Vreones (1891) 1 QB, at p 369; Murphy (1985) 158 CLR, at p 609. An attempt to pervert the course of justice is a substantive and not an inchoate offence (56) Machin (1980) 71 Cr App R 166, at p 170. In Machin, the Court of Appeal pointed out that the word "attempt" (57) ibid:

"is convenient for use in the case where it cannot be proved
that the course of justice was actually perverted but it
does no more than describe a substantive offence which
consists of conduct which has tendency and is intended to
pervert the course of justice".

It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct did or did not bring about a miscarriage of justice.

7. It follows, as the Court of Criminal Appeal held in this case, that the object of a conspiracy to pervert the course of justice is the substantive offence of attempting to pervert the course of justice. But does this mean, as that Court held, that, if no proceedings are pending, an agreement to make a false statement to a police officer is not punishable as a conspiracy to pervert the course of justice unless the prosecution establishes that an identifiable crime has been committed or that the police had before them evidence which raises a suspicion or belief that an identifiable crime has been committed?

8. Offences for conduct which would now be categorised as conspiracies to pervert the course of justice are among the oldest offences known to the English common law. The modern law of conspiracy developed from the writ of conspiracy, which was created by the Statute of Conspirators "of the probable date, 21 Ed. I" (1293) (58) Winfield, The History of Conspiracy and Abuse of Legal Procedure, (1921), p 51; and see Wright, The Law of Criminal Conspiracies and Agreements, (1873), pp 5-6. That statute made it an offence to combine falsely and maliciously to indict or cause others to be indicted or to combine falsely to move or maintain pleas of the Crown (59) Winfield, op cit, pp 51-52. By the end of the 17th century, however, the types of agreement punishable as conspiracies to pervert the course of justice had been greatly extended. Yet it was not until 1933 that anybody appears to have suggested that by itself a wilfully false statement made to a police officer in relation to an actual, alleged or suspected crime might constitute the offence of attempting to pervert the course of justice. No trace of such a suggestion can be found in the 18th (60) See for example, Blackstone, Commentaries on the Laws of England (1769), vol.IV, pp 127 ff or 19th (61) See for example, Hawkins, A Treatise of the Pleas of the Crown, 8th ed. (1824), vol.1, pp 412-477; Archbold's Criminal Pleading, 19th ed. (1878), pp 1005-1014; Chitty, A Practical Treatise on the Criminal Law, 1st ed. (1816), vol.3, pp 1138-1193; Russell, A Treatise on Crimes and Misdemeanors, 5th ed. (1877), vol.3, pp 109-176 century writers. Moreover, it was not until 1956 that any court adopted the suggestion. English (62) Reg. v. Thomas (1979) QB 326; Reg. v. Selvage (1982) QB 372 and Irish (63) Reg. v. Bailey (1956) NI 15 courts, however, have now accepted that by itself a false statement to a police officer in relation to an actual, alleged or suspected crime can constitute the offence of attempting to pervert the course of justice. Nevertheless, I cannot accept that such a statement by itself is an offence under the common law of Australia.

9. The first suggestion that a false statement to an officer of the law in relation to an actual, alleged or suspected crime might by itself constitute the offence of attempting to pervert the course of justice arose out of R. v. Elizabeth Manley (64) (1933) 1 KB 529. In that case, the Court of Criminal Appeal upheld a conviction that the appellant had unlawfully effected "a public mischief" in falsely informing the police that she had been assaulted and robbed. The Court, relying on a dictum of Lawrence J. in R. v. Higgins (65) (1801) 2 East 5 (102 ER 269), held that "at the present day ... there (was) a misdemeanour of committing an act tending to the public mischief". The Court also said (66) (1933) 1 KB, at p 534:

"In the opinion of the Court the indictment aptly describes
two ingredients of public mischief or prejudice to the
community, one of these being that officers of the
Metropolitan Police were led to devote their time and
services to the investigation of an idle charge, and the
other being that members of the public, or at any rate
those of them who answered a certain description, were put
in peril of suspicion and arrest."

10. The reasoning in Manley was strongly criticised by Dr Stallybrass in an article in the Law Quarterly Review (67) (1933) 49 LQR 183 (1933) 49 LQR 183. However, in the course of that article, he submitted that it would have involved (68) ibid., at p 189:

"no great extension of the existing law relating to
indictable 'frauds affecting the public at large' to have
dismissed the prisoner's appeal in R. v. Manley on the
ground that her fraud interfered with the administration of
criminal justice".

11. In Reg. v. Newland (69) (1954) 1 QB 158, at p 165, the Court of Criminal Appeal said that it was "much too late to object that a conspiracy to effect a public mischief is an offence unknown to the law". Nevertheless, after referring to Manley, Lord Goddard C.J., giving the judgment of the Court, said (70) ibid., at p 168:

"With all respect to a case which, as we have said, is
binding on us we believe that the right approach to what
may be compendiously called public mischief cases is to
regard them as part of the law of conspiracy, and to hold
the actions of an individual not committed in combination
with others as indictable only if they constitute what has
been held in the past to be common law or statutory
offences. It may be that Manley's case will some day be
considered by the House of Lords and in any case we venture
to think that it would be a useful reform if such conduct
as was there disclosed were made a summary offence by the
legislature. We need not further enlarge on it, as the
charge we are now considering was one of conspiracy, except
to say that in our considered opinion the safe course is no
longer to follow it."

12. However, in Reg. v. Bailey (71) (1956) NI, at p 24, where the accused was convicted of unlawfully effecting "a public mischief", the Court of Criminal Appeal of Northern Ireland said that it thought that the purpose of the criticism of Manley in Newland "may have been to criticise the reasoning, based on the dictum of Lawrence J., on which the decision was founded rather than the decision itself". In Bailey, the accused had made a false confession to police officers implicating himself and two other persons in a murder. The Court of Criminal Appeal held that there was no offence of effecting a public mischief but upheld the conviction on the ground that the conduct of the accused fell into the category of acts prejudicial to the administration of public justice. The Court said (72) ibid., at p 26:

"But the administration of public justice, particularly
in the criminal sphere, cannot well be confined to the
processes of adjudication. In point of principle we think
it comprehends functions that nowadays belong, in practice
almost exclusively, to the police, such as the investigation
of offences and the arrest of suspected persons; and we see
no good reason for regarding these preliminaries as beyond
the scope of the category we are now considering. We find
support for this view in Reg. v. Vreones".

13. It is difficult to accept the Court of Criminal Appeal's conclusion in Bailey that the purpose of the criticism of Manley in Newland "may have been" to criticise the reasoning and not the decision in Manley, for Lord Goddard said in Newland that the only safe course was no longer to follow the decision in Manley. Moreover, although in Newland Lord Goddard referred to Dr Stallybrass' criticism of the dictum of Lawrence J. in Higgins, his Lordship did not suggest that the decision in Manley could be supported on the ground that "her fraud interfered with the administration of justice". It is also difficult to see how the decision or the reasoning in Vreones supports the view that investigations by police officers of actual, alleged or suspected crimes are part of "the course of justice" for the purpose of the offence of attempting to pervert the course of justice. In Vreones, the appellant had been convicted on a count which alleged that, after altering the character of certain samples of goods, he forwarded them to an Association with the intent that they should be used before arbitrators if any dispute arose between the parties to the contract for the sale of the goods. No arbitrators had been and, because of his conduct, ever were appointed. But the conviction was upheld. Lord Coleridge C.J. thought that the case was one of the "manufacture of false evidence for the purpose of misleading a judicial tribunal" (73)Vreones (1891) 1 QB, at p 366. Pollock B. thought "that by tampering with the evidence which was to be laid before that tribunal the defendant was interfering with the course of justice" (74) ibid., at p 369. Vreones is certainly authority for the proposition that the offence of attempting to pervert the course of justice may arise when the attempt is to pervert proposed judicial proceedings. It has been so regarded in this Court (75) See Murphy (1985) 158 CLR, at p 609. But it lends no support to the proposition that police investigations are part of "the course of justice" for the purpose of the offence of attempting to pervert the course of justice. Moreover, as Watkins L.J. said in Selvage, the facts of Vreones were "as close to if not on the very boundary itself of the offence of perverting the course of justice" (76) (1982) QB, at p 381.

14. Since Bailey, however, English courts have accepted that police investigations are part of "the course of justice" for the purposes of the offences of conspiring to pervert the course of justice and attempting to pervert the course of justice (77) See Reg. v. Thomas (1979) QB, at p 331; Reg. v. Selvage (1982) QB, at pp 380-381. In Selvage, the Court of Appeal said (78) Selvage (1982) QB, at p 380:

"It is obvious from these cases that this offence which
affects the administration of justice is not confined to
matters directly concerning criminal proceedings already in
being. It impinges upon the process of investigating crime
suspected by the police of having been committed or falsely
alleged to have been committed by a person desirous of
unlawfully bringing criminal proceedings about or of causing
police officers to embark upon the process of investigating
false accusations to the detriment of their other duties."

The Court also said (79) ibid., at p 381:

"a course of justice must have been embarked upon in the
sense that proceedings of some kind are in being or are
imminent or investigations which could or might bring
proceedings about are in progress in order that the act
complained about can be said to be one which has a tendency
to pervert the course of justice".

These passages in Selvage were cited in this Court in Murphy (80) (1985) 158 CLR, at p 610 for the purpose of showing that conduct which occurred before any curial proceedings had been commenced could constitute the offence of attempting to pervert the course of justice. But in Reg. v. Todd (81) (1957) SASR 305, at p 328, in what is by far the fullest and most valuable examination of the whole subject, the Full Court of South Australia said:

"With all respect to the Court of Appeal of Northern
Ireland, however, we are unable to accept, in the absence
of authority, that the course of justice for this purpose
includes the investigation by the police of facts for the
purpose of ascertaining whether or not a crime has been
committed. A perusal of the very full discussions,
supported by reference to many cases, on the subject of
perjury, persuades us that if there had been a parallel
(but less serious) crime of giving false information to the
officers of the law some mention of it would have appeared
in the text books."

15. In Todd, the Full Court held that the accused had committed no offence where his conduct had led police officers to conclude that he may have drowned in a motor vehicle accident and had caused them to investigate whether that was so.

16. I think that the Full Court of South Australia was correct in Todd in holding that investigations of actual or suspected crimes by officers of the law are not part of "the course of justice" for the purpose of the common law offences concerned with perverting the course of justice. Nor without more is it an offence at common law to make a false statement to an officer of the law in the course of an investigation into an actual or suspected crime. The cases and text books to which the Full Court referred in Todd and such additional material, as I have examined myself, give no support for the contrary conclusion. The absence of any contrary statement, prior to the twentieth century, in the reported cases, the digests, the text books and the precedents of indictments in books on criminal law compels the conclusion that, at the time that the common law became part of the law of Australia, a false statement made to an officer of the law during the investigation of an actual, alleged or suspected crime was not by itself a common law misdemeanour. It also compels the conclusion that the investigation of an actual or suspected crime was not part of the "course of justice" for the purpose of the offence of attempting to pervert the course of justice. Nor is there anything in any case decided in this country since the introduction of the common law which lends support for a conclusion contrary to that to which I have come. Indeed, Todd is authority for the proposition that a false statement made to a police officer in relation to an actual, alleged or suspected crime does not constitute an attempt to pervert the course of justice (82) See also R. v. Kataja (1943) VLR 145. It is true that, in Murphy, this Court set out those passages in Selvage which extend the scope of the "course of justice" to include investigations by police officers. But the context shows that this Court was not intending to define the scope of the offence in terms of that passage.

17. Furthermore, principle compels the conclusion that police investigations are not part of the course of justice. The object of the offence of attempting to pervert the course of justice was, historically, and remains today, the protection of the process and procedures of the Sovereign's courts. Indeed, Archbold (83) op cit, p 2463 asserts that "the offence of perverting the course of justice is merely contempt under another name". For the purpose of the law of contempt, it is firmly established "that proceedings are pending in criminal cases after a person has been arrested and charged" (84) James v. Robinson [1963] HCA 32; (1963) 109 CLR 593, at p 606 and not before. In James v. Robinson, this Court held that two newspaper articles which "clearly identified Robinson as the gunman" (85) ibid., at p 599 who had murdered two persons were not contempts of court because the articles appeared two days before any complaints against him were sworn. In Williams v. The Queen (86) [1987] HCA 36; (1986) 161 CLR 278, at p 306, which was not a contempt case, Wilson and Dawson JJ. said:

"The point at which an arrested person is brought before a
justice upon a charge is the point at which the machinery of
the law leading to trial is put into operation. It is the
point from which the judicial process commences and purely
ministerial functions cease."

It follows that for the purpose of the offence of perverting the course of justice, the course of justice does not commence in criminal proceedings until the laying of an information against or the arrest of an accused person (87) James v. Robinson. In civil proceedings it does not commence until the institution of the proceedings. In both criminal and civil proceedings, the course of justice ends when the rights and liabilities of the parties have been finally determined and declared after "an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined" (88) Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, at p 374. As Vreones shows, it is not necessary that the inquiry be conducted by a court in the strict sense, but it must involve an exercise of judicial power. The course of justice, like the judicial function, "is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject" (89) Labour Relations Board of Saskatchewan v. John East Iron Works Ltd. (1949) AC 134, at p 149. It follows that, as a matter of principle, it is not possible to regard police investigations as part of the course of justice for the purpose of the common law offence of attempting to pervert the course of justice.

18. Courts are no longer able to create criminal offences (90) Reg. v. Knuller (Publishing, etc.) Ltd. (1973) AC 435, at p 479. Consequently, it is not open to the courts of this country to extend the law by declaring that, by itself, a wilfully false statement made to a police officer in relation to an actual, suspected or alleged crime constitutes an attempt to pervert the course of justice. Moreover, if, contrary to history and principle, this Court now declared that the common law misdemeanour of attempting to pervert the course of justice was established simply by the making of a wilfully false statement in relation to an alleged, actual or suspected crime, it is difficult to see how the offence could be limited to investigations by police officers. Many government officials, besides police officers, are today charged with the duty of investigating breaches of the law. Indeed, any wilfully false statement made to any person investigating whether curial proceedings should be instituted in respect of an actual or supposed civil or criminal wrong would also be arguably within the ambit of the offence. In the result, conduct which for hundreds of years had not been in breach of the criminal law would become so without legislative authority. Whether conduct which intentionally misleads police officers and other government officials should be punishable as an offence, and, if so, to what extent, must remain a matter for the legislature and not the courts.

19. Nevertheless, in some circumstances, a false statement made to a police officer in the course of the investigation of an actual, alleged or suspected crime can constitute the offence of attempting to pervert the course of justice even though no judicial proceedings have been commenced. As this Court said in Murphy (91) (1985) 158 CLR, at p 609, "an attempt made to pervert the course of justice at a time when no curial proceedings of any kind have been instituted is an offence". Because the course of justice includes proposed as well as existing judicial proceedings (92) Vreones; White v. The King [1906] HCA 53; (1906) 4 CLR 152, a false statement made to a police officer will constitute the offence if it had a tendency to pervert the course of judicial proceedings and if it was made with the intention to do so.

20. Although a statement made before the commencement of judicial proceedings cannot amount to a contempt of those proceedings (93) James v. Robinson, such a statement will be an attempt to pervert the course of justice if the relevant intent and tendency are present. In this respect, the law relating to contempt and the law relating to perverting the course of justice have gone separate ways. The conviction of the appellant in Vreones was upheld although the arbitration never commenced. In White, this Court upheld the conviction of a person who had made a false statement in a petition which sought a judicial inquiry. In Reg. v. Kane (94) (1967) NZLR 60, the New Zealand Court of Appeal upheld a conviction for attempting to defeat the course of justice where the appellant, who had been present at the stabbing of a youth, urged a witness to tell the police, when they came, that he was out of the room and knew nothing of the affair and also persuaded the offender to claim falsely that the stabbing was wholly accidental. McCarthy J., who gave the judgment of the Court, said that it was correct that the charge "does not lie on every occasion when the police are misled by false information wilfully given" (95) ibid., at p 63. He gave Todd as an example of that class of case. But his Honour said that:

"there is an essential difference between that class of
case and the one we have before us now, where in fact a
crime had occurred, the police were in the process of
investigating it, and the accused's conduct was aimed
at preventing or obstructing a prosecution which he
contemplated might follow. It seems to us that, at least
when that situation exists, the offence of attempting to
pervert the course of justice lies at common law."

In Kalick v. The King (96) (1920) 55 DLR 104, the Supreme Court of Canada held that the appellant was rightly convicted of intending "to interfere corruptly with the due administration of justice" where he had offered a bribe of $1,000 to call "the matter square" after a police officer had found a discrepancy in certain records required to be kept under a Temperance Act. In each of these four cases, the conduct of the accused had the tendency to affect identifiable judicial proceedings.

21. Furthermore, the course of justice is not synonymous with the course of any particular judicial proceedings. It is well established that a criminal contempt is committed where there has been "an interference with the due administration of justice either in a particular case or more generally as a continuing process" (97) Attorney-General v. Leveller Magazine (1979) AC 440, at p 449. Thus, to dismiss an employee because he was away from work by reason of jury service is a contempt because it has a tendency to interfere with the administration of justice as a continuing process (98) Attorney-General v. Butterworth (1963) 1 QB 696. Likewise publishing "scandalous" matter concerning a court or judge is a contempt of court although the matter does not relate to any pending proceedings (99) Bell v. Stewart [1920] HCA 68; (1920) 28 CLR 419, at pp 428-429. In Selvage(100) (1982) QB, at p 381, the Court of Criminal Appeal pointed out that the course of justice is "a term with which the administration of justice is for present purposes synonymous". Since attempting to pervert the course of justice is a form of criminal contempt, in principle, the offence of attempting to pervert the course of justice should also encompass attempts to pervert the course of justice as a continuing process. No doubt such cases are rare because they require conduct which perverts the course of justice in general and not in any particular case. Bribing a judicial officer to decide cases of a particular class in a particular way or bribing a police officer to attempt to persuade other police officers to give false evidence whenever members of a particular organisation were arrested would seem to be examples of the offence. Altering the current endorsements on the records of drivers' licences in a case where, by statute, the records were admissible as evidence of their contents would also seem to be an example of attempting to pervert the course of justice if the relevant intent was present because it has a tendency to interfere with the course of any judicial proceedings arising out of the charging of the drivers concerned. But in Selvage, the Court of Criminal Appeal held to the contrary. The Court said(101) ibid:

"It has to be borne in mind that in the present case
there was not the slightest suggestion that criminal
proceedings were pending or imminent or being investigated
or that any actual proceedings were within the contemplation
of Mrs. Selvage or Mr. Morgan or anyone else at any relevant
time. In no decided case known to this court did such a
situation as this obtain. In all of them there was, to say
the least, within the contemplation of the convicted person
some kind of proceeding in a court or judicial tribunal
likely upon the happening of a foreseeable event to arise if
it was not already in being."

However, their Lordships appear to have overlooked that the offence is made out if there is an attempt to pervert the course of justice as a continuing process.

22. Unless the prosecution proves that the course of justice as a continuing process has been perverted or proves facts which show that an identifiable person has committed an identifiable crime, it is difficult to see how the prosecution can prove that the conduct of the accused interfered with the course of justice. Vreones, White, Kane and Kalick are each authority for the proposition that an attempt to prevent a prosecution being instituted or to interfere with the evidence which might be given in a prosecution, if it was instituted, can constitute an attempt to pervert the course of justice. But, in each of these cases, it was possible to identify the proceedings which would have been instituted. Leaving aside the continuous process cases, proof of the offence will require evidence that the accused has engaged in conduct which prevented or might have prevented the prosecution of a particular offence or that the accused has engaged in conduct which had the tendency to change or did change evidence which would otherwise have been put before a judicial tribunal or which had the tendency to prevent or did prevent evidence from being put before that tribunal. If the evidence does not establish what proceedings would have been commenced or what proceedings were interfered with, the conduct of the accused cannot be shown to have the tendency to pervert the course of justice which, ex hypothesi, is undefined. It is not enough that the conduct of the accused has misled an investigation into whether a person has committed any offence against the law.

23. In Reg. v. Withers (102) (1975) AC 842, at p 868, Lord Simon of Glaisdale expressed the opinion that both Manley and Bailey were cases of attempting to pervert the course of justice. Since the accused in Bailey had not only confessed to a murder himself but implicated two other individuals in the murder, it seems correct to regard his statements as perverting the judicial proceedings which would arise out of the prosecution of the accused and the other two men. But while the conduct of the accused in Manley had the tendency and was intended to mislead the investigating police officers, it is difficult to see how her conduct had reached the stage where it had any tendency to mislead a judicial tribunal. To constitute the offence, the conduct of the accused must have been such "for there to be a risk, without further action by him (or her), that injustice will result"(103) Murray (1982) 75 Cr App R 58, at p 62. If the accused in Manley had named or identified an individual, the course of justice which the accused had attempted to pervert would have been identified whether or not the person named or identified was in fact charged. But, without further action by the accused, it is difficult to see how her conduct had any tendency to interfere with any judicial proceedings. She had claimed a crime had been committed but she had not put anybody at risk of prosecution.

24. Just as the offence of attempting to pervert the justice can be committed although no judicial proceedings are pending, so can the offence of conspiracy to pervert the course of justice be committed although no judicial proceedings are pending. Thus, in Hammersley (104) (1958) 42 Cr App R 207, the Court of Criminal Appeal held that two police officers and a bookmaker were correctly convicted of conspiracy to obstruct the course of public justice over a nine-year period. The Crown led evidence that two of the defendants and another police officer (who was acquitted) implemented the agreement by protecting people who were known to be criminals and by preventing the apprehension by other police officers of persons who were suspected to be guilty of offences. The Court said (105) ibid., at p 214:

"These defendants were, on the evidence which the jury
accepted, interviewing suspected criminals, in some cases
actual criminals, and saying that for considerations they
would not bring charges or they would help them when charges
were brought or they would prevent them from being arrested
by other police forces."

The Court seems to have regarded the case as a single conspiracy to pervert the course of justice as a continuing process. In Sharpe and Stringer(106) (1937) 26 Cr App R 122, the Court of Criminal Appeal held that the appellants were correctly convicted of conspiring "to defeat the ends of public justice by concealing and destroying evidence of the commission of a crime". The Court rejected the contention that there could be no conspiracy to obstruct the course of public justice "unless proceedings have already begun"(107) ibid., at p 126. The judicial proceedings which the appellants conspired to pervert were clearly identified. The directions of the trial judge

25. At the trial the Crown made no attempt to prove that the respondents had conspired to pervert the course of justice in relation to any judicial proceedings which were pending or proposed. The learned trial judge left the Crown case to the jury as follows:

"The Crown says that the conspiracy to fabricate the
source of the moneys deposited in the National Australia
Bank accounts occurred at a time when police investigations
were inevitable and that such investigations could lead only
to criminal proceedings against  Rogerson  and/or Nowytarger
- that is, criminal proceedings were imminent or threatened.
To establish its case the Crown must show that what was
done pursuant to the agreement - that is the conspiratorial
agreement to pervert the administration of justice - would
have that tendency and was so intended by those who are
parties to the conspiracy. The Crown says that the acts of
 Rogerson , Nowytarger and Karp in pursuance of the agreement
were intended to foil the police inquiry and clearly had
that effect - that is the fabrication of the false
agreement, of the receipts and the accounts given to the
police by those three persons. And, of course, on the Crown
case all those events occurred after the police inquiry had
commenced, if you accept that it commenced on 16 July.
It would follow, members of the jury, if you accept the
evidence of the young lady who typed out the agreements and
receipts, Miss Parkinson, that she typed the agreement on
17 July. So clearly if you accept that as being the date
that the agreement and receipts were typed, they were signed
certainly no earlier than the 17th by the two accused and
Karp. The accounts given to the investigating police also
occurred after 16 July."

The effect of this direction was to equate perverting the course of justice with foiling the police inquiry.

26. Just before the jury retired, the learned trial judge gave a further direction to the jury. He said:

"when I was summarising the Crown case, I said words to this
effect, that in the Crown case the conspiracy to fabricate
a false account of the moneys deposited in the National
Australia Bank account occurred at a time when the police
investigations were inevitable and that such investigations
could lead to criminal proceedings against either the
accused Nowytarger or  Rogerson  or both. I think it is
implicit in what I said to you there members of the jury
and I do mention this to you, you would have to be satisfied
beyond a reasonable doubt that the accused that you (are)
considering believed that a police inquiry would take place
in that context at that time."

This direction equated the offence with interference with a police inquiry or investigation which could lead to criminal proceedings.

27. It appears from his Honour's directions that the crime with which  Rogerson  and/or Nowytarger would have been charged was never identified. Hence, the nature of the proceedings which the respondents were alleged to have conspired to pervert was never identified. The Crown merely alleged that the police investigations "could lead only to criminal proceedings against  Rogerson  and/or Nowytarger - that is, criminal proceedings were imminent or threatened". In his final summary of the Crown case, the learned judge left the case to the jury on the basis that it was enough to constitute the offence that the police investigations "could lead to criminal proceedings". The Crown did not identify with any precision, or at all, how the investigations could lead to criminal proceedings or what they would be. Since any police inquiry may lead to the institution of criminal proceedings, the effect of the directions of the learned trial judge was that the respondents were guilty if the jury found that the agreement to fabricate an account of the source of the moneys could foil the inquiry and the respondents had the intention to do so. But such a direction could only be correct if police investigations were part of the course of justice or if the offence of conspiracy to pervert the course of justice was made out if the investigation could possibly lead to a prosecution for an offence even though the offence could not be identified.

28. I have already held that police investigations are not part of the course of justice. So the question arises whether a person can be guilty of attempting to pervert the course of justice if the conduct of that person has interfered with a police investigation which could lead to a criminal prosecution. Stated in this bald form, the question can have only one answer. Unless the judicial proceedings, which would be the subject of the prosecution, are identified, it cannot be proved that the conduct of the accused had the tendency to affect the course of justice in judicial proceedings. And the proceedings cannot be identified if their subject matter is not identified. Consequently, the directions of the learned trial judge were erroneous and, by themselves, would require a new trial of the charge. But the Court of Criminal Appeal went further. It held, correctly in my opinion, that there was no evidence to support the charge. No evidence to support the charge

29. I am unable to accept the conclusion that, if accepted, the evidence established the offence because it proved that the respondents conspired to deceive the police and deflect them from instituting a prosecution based on the belief of those officers that the money, withdrawn from the National Australia Bank, was unlawfully obtained. The acceptance of such evidence would lead only to the conclusion that the respondents had agreed to fabricate evidence with the intention of perverting the course of justice. It would not establish that they had conspired to do anything which had the tendency to pervert the course of justice. A conspiracy to pervert the course of justice requires not merely an intention to pervert the course of justice but an agreement to do something which has the tendency to pervert it. The conduct of the respondents was not proved to have any tendency to pervert the course of justice because it was never proved what proceedings could have been affected by their conduct. The offence of attempting to pervert the course of justice is not proved if all that can be established is that the conduct of the accused frustrated or interfered with an investigation into what the investigators believed or suspected might be a crime; it must be shown, in a case such as the present, that the conduct of the accused had the tendency to prevent the investigators from instituting proceedings in respect of a crime. Nor is the offence proved if all that can be established is that the accused believed that what they were doing would pervert the course of justice. Whatever the accused have done or intended to do, the offence of conspiracy to pervert the course of justice is not made out unless they have agreed to do something which has the tendency to pervert the course of judicial proceedings. Since the Crown at no stage attempted to identify the crime or even the category of the crime, which would be the subject of judicial proceedings, there was no evidence upon which the jury could find that the respondents had conspired to do something which had the tendency to pervert the course of judicial proceedings.

30. In this Court, it was also suggested that the police investigation could have led to disciplinary proceedings being instituted against  Rogerson . It is enough to say that that case was not left to the jury and, in any event, suffers from the same defect as the case that was left to the jury. Special leave

31. It is the practice of this Court to refuse to grant special leave to the Crown to appeal against an order of acquittal by a Court of Criminal appeal unless the case is exceptional(108) R. v. Wilkes [1948] HCA 22; (1948) 77 CLR 511, at pp 516-517. Counsel for the Crown in right of the State of New South Wales, supported by counsel for the Commonwealth of Australia and the State of South Australia who intervened in the proceedings, submitted that, to require the Crown to prove exceptional circumstances, is inconsistent with the conferring of the discretion to grant or refuse special leave. It is unnecessary to resolve that issue in this case because the application raises questions of exceptional importance concerning the scope of the offence of conspiracy to pervert the course of justice. It is therefore a proper case for the grant of special leave.

32. Special leave to appeal should be granted. But the appeal must be dismissed with costs.

ORDER

The Queen v. Roger Caleb  Rogerson 

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of New South Wales.

Remit the matter to the Court of Criminal Appeal to hear and determine the appeal to that Court in accordance with the judgment of this Court.
The Queen v. Morris Enrico Nowytarger

Application for special leave to appeal granted.

Appeal dismissed.

The Queen v. Nicholas John Paltos

Application for special leave to appeal granted.

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of New South Wales.

Remit the matter to the Court of Criminal Appeal to hear and determine the appeal to that Court in accordance with the judgment of this Court.

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