7.8.3 - Perverting and attempting to pervert the course of justice

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  1. The offences of attempting to pervert the course of justice and perverting the course of justice are common law offences in Victoria (R v Vreones [1891] 1 QB 360; R v Murphy (1985) 158 CLR 596).
  2. The existence of these offences is recognised in s 320 Crimes Act 1958.
  3. At common law, both the offences of attempting to pervert the course of justice and perverting the course of justice are substantive and not inchoate (R v Rogerson (1992) 174 CLR 268 at 279; R v Beckett (2015) 256 CLR 305 at [37]).

    Elements of the offences

  4. The offence of attempting to pervert the course of justice has the following elements:
    1. The accused engaged in conduct that had the tendency to pervert the course of justice.
    2. The accused intended for that conduct to pervert the course of justice.
  5. The offence of perverting the course of justice has the following elements:
    1. The accused engaged in conduct that did pervert the course of justice.
    2. The accused intended for that conduct to pervert the course of justice.
  6. Due to the overlap between these two offences, this commentary will describe both offences.

    The accused engaged in conduct that tends to pervert or did pervert the course of justice

    What is a course of justice?

  7. Police investigations of an actual or suspected offence are not part of the course of justice because the police do not administer justice (R v Rogerson (1992) 174 CLR 268 at 276 per Mason CJ and 283 per Brennan and Toohey JJ).
  8. Historically, the offences of perverting and attempting to pervert the course of justice existed to protect the processes and procedures of the Sovereign’s courts and through this protect the administration of justice (R v Rogerson (1992) 174 CLR 268 at 303).
  9. The course of justice begins when the jurisdiction of a court or competent judicial body has been invoked (R v Rogerson (1992) 174 CLR 268 at 276 per Mason CJ, 283 per Brennan and Toohey JJ and 303 per McHugh J).
  10. In criminal proceedings, it was said “the course of justice [commences with]… the laying of information against or the arrest of an accused person” (R v Rogerson (1992) 174 CLR 268 at 303).
  11. However, in light of the s 5 of the Criminal Procedure Act 2009 (Vic) a criminal proceeding (or the invocation of the court’s jurisdiction) does not commence until the
    1. the filing of a charge sheet in accordance with s 6;
    2. direct indictment under s 159 or
    3. a direction under s 415 to be tried for perjury.
  12. This suggests that the notion that a course of justice begins when a person is arrested is not correct in Victoria.
  13. For conduct to amount to the actus reus of the offence of perverting the course of justice, the conduct must have been engaged in after the jurisdiction of a court or competent judicial body has been invoked. Conduct frustrating a police investigation, before the invocation of a court’s jurisdiction, therefore does not amount to the actus reus of the offence of perverting the course of justice.
  14. In contrast, the offence of attempting to pervert the course of justice can be committed by engaging in the relevant conduct before the institution of judicial proceedings (R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ, 283 per Brennan and Toohey JJ, 293-4 per Deane J and 304-5 per McHugh J; R v Beckett (2015) 256 CLR 305 at [34]).
  15. Therefore, it is possible for the frustration of a police investigation, before judicial proceedings have been instituted, to amount to the actus reus of attempting to pervert the course of justice. This is because frustrating a police investigation, in the circumstances of the case, could have the tendency to pervert the course of justice by hindering the ability of the police to invoke a court’s jurisdiction or ascertain the truth of facts presented to a court.
  16. The course of justice ends when the rights and liabilities of the parties are finally determined and declared by the court or other competent judicial body (R v Rogerson (1992) 174 CLR 268 at 304).
  17. The course of justice includes sentencing hearings (see, eg, Saleem v The Queen [2014] VSCA 190) and appeals (see, eg, Zotos v The Queen [2014] VSCA 324).

    Defining perversion of the course of justice

  18. The course of justice involves the exercise by a court, or competent judicial authority, of its jurisdiction to enforce, adjust or declare the rights and liabilities of the parties to a proceeding (R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ).
  19. The perversion of the course of justice therefore, occurs when the conduct of an accused impairs, obstructs, adversely interferes or prevents the court from administering justice (R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ; Meissner v R (1995) 184 CLR 132 at 148 per Deane J).
  20. This definition captures all judicial proceedings, including civil and criminal proceedings.
  21. The following are recognised ways in which the proper administration of justice can be interfered with and thus the course of justice perverted:
    1. Erosion of the integrity of the court or competent judicial authority; or
    2. Hindering access to the court or competent judicial authority; or
    3. Deflecting applications that would be made to the court or competent judicial authority; or
    4. Denying the court or competent judicial authority knowledge of relevant law; or
    5. Denying the court or competent judicial authority knowledge of the true circumstances and facts of the case; or
    6. Impeding the free exercise of the jurisdiction and power of the court or competent judicial authority including the power to execute its decisions (R v Rogerson (1992) 174 CLR 268 at 280 per Brennan and Toohey JJ).
  22. This list is not exhaustive, but merely illustrative.
  23. For the offence of perverting the course of justice, the conduct of the accused must result in the perversion of the course of justice. Therefore, the prosecution must prove there has been an adverse interference with the course of justice, for example in one of the ways listed in paragraph 21. The tendency to pervert the course of justice (e.g. in one of the ways listed in paragraph 21) is sufficient for the attempt offence [see below on ‘Defining tendency’].

    Defining tendency

  24. For the attempt offence, conduct must objectively tend to pervert the course of justice. This will be satisfied, for example, when conduct has the objective capacity to result in one of the things listed in paragraph 21 (R v Rogerson (1992) 174 CLR 268 at 280; Meissner v R (1995) 184 CLR 132 at 148 per Deane J).
  25. The tendency of conduct to pervert the course of justice will be proved by showing that without further action by the accused, there is a real possibility or risk that what he or she said or did had the capacity to interfere with the proper administration of justice (R v Murray [1982] 1 WLR 475; Healy v The Queen (1995) 15 WAR 104 at 107 per Malcolm CJ).
  26. “Without further action” does not mean the accused cannot be guilty of the attempt offence unless it is shown that the conduct of the accused “without more” risks perverting the course of justice (R v Allan [1995] 2 VR 468, 472). Rather, the first act committed that has the tendency to pervert the course of justice is sufficient.
  27. The tendency of the conduct is not to be judged on the particular circumstances of the case but by the risk it poses to the course of justice in the ordinary course. This is so even if, in the particular circumstances of the case, there was no actual risk of perverting the course of justice (R v Aydin (2005) 11 VR 544 at 546; see also Smith v R (2013) 39 VR 336 at [46]-[47]).
  28. Therefore, impossibility is no defence to attempting to pervert the course of justice (R v Aydin (2005) 11 VR 544 at 546).
  29. For example, in R v Aydin, the alleged threats and bribes were made to a police officer who was part of a controlled operation. Therefore, there was no actual risk of the officer being induced to act on the threats or bribes. The defendant was still convicted of attempting to pervert the course of justice because in the ordinary course bribing or threatening a police officer does pose a real risk (or have the tendency to) interfere the course of justice (R v Aydin (2005) 11 VR 544, at 546).

    Proof of a specific offence in relation to possible criminal proceedings

  30. Where the conduct is engaged in before the commencement of judicial proceedings, the conduct must still tend to pervert “imminent, probable or even possible judicial proceedings” (R v Rogerson (1992) 174 CLR 268 at 277).
  31.  The prosecution does not need to prove the commission of an identifiable or specific offence committed by the accused or third party, in order to satisfy the requirement that a future prosecution was “imminent, probable or possible”. It is sufficient if the conduct had the tendency to deflect the police from bringing a prosecution for some offence (see R v Rogerson (1992) 174 CLR 268, at 278 per Mason CJ, 288 per Brennan and Toohey JJ and 294 per Deane J; McHugh J in dissent at 307).
  32. If the prosecution case is that the accused’s conduct perverted a future prosecution for some offence, this will generally require proof that the conduct deflected an inevitable police inquiry and consequently deflected the police from instituting an “imminent, probable or possible” prosecution for the subject matter of the inquiry (R v Rogerson (1992) 174 CLR 268 at 285 per Brennan and Toohey JJ).
  33. However, in the absence of proof of an identifiable offence, it is likely to be more difficult to prove that the conduct of the accused had the tendency to pervert an “imminent, probable or possible” course of justice (and that it was intended to bring about that result) (R v Rogerson (1992) 174 CLR 268 at 279 per Mason CJ, 286 per Brennan and Toohey JJ and 294 per Deane J).
  34. The case of R v Rogerson provides an example of how this principle applies in a case where there is no proof of an identifiable offence. There was evidence that the accused had received bags of white powder in exchange for cash at an airport, raising the suspicion of criminal conduct. The prosecution did not seek to prove this was a drug related transaction, but did prove after the swap the accused then conspired with others to concoct a false story about the origins of the money. At the time the false story was formulated, no police investigation or prosecution had commenced. It was held to be open to the jury to find the accused had fabricated a story to deceive police about the true origins of the money, and this deception had the tendency to deflect a probable prosecution (i.e. the course of justice), even though the offence could not be identified with precision (R v Rogerson (1992) 174 CLR 268 at 279 per Mason CJ and 288 per Brennan and Toohey JJ).
  35. See also the section below titled 'Penalty notices and warning about prosecution' in respect the impact of warnings about future prosecution and how it relates to the possibility of future proceedings.

    Inducing a person to alter evidence or plea

  36. Conduct that involves threatening or bribing a person to alter their evidence (see Librizzi v Western Australia (2006) 33 WAR 104) or plead guilty when that person would not have otherwise done so (see Meissner v R (1995) 184 CLR 132) has the tendency to pervert the course of justice.
  37. If the conduct of the accused is merely lawful persuasion aimed at securing a legitimate end, namely an end consistent with the administration of justice, then the course of justice will not tend to or be perverted (Meissner v R (1995) 184 CLR 132 at 142 per Brennan, Toohey and McHugh JJ, see also 149 per Deane J and 157 per Dawson J).
  38. For example, it is lawful to give reasoned argument or advice, no matter how strongly that advice or argument is put, to persuade someone to plead guilty (Meissner v R (1995) 184 CLR 132 at 142 per Brennan, Toohey and McHugh JJ). This is because deciding to plead guilty is an end compatible with the proper administration of justice. Furthermore, merely giving advice to a person recommending they plead guilty (e.g. by their lawyer) generally maintains their free choice in the matter.
  39. However, a plea resulting from intimidation is not made freely. This would amount to the actus reus of the attempt offence. This is because when the court acts on this plea it has been misled or denied the true circumstances of the case (Meissner v R (1995) 184 CLR 132 at 142 per Brennan, Toohey and McHugh JJ).
  40. It is recognised that the line between lawful persuasion and improper means is difficult to draw. This difficulty is resolved by assessing whether in all the circumstances of the case the inducement, argument or advice could reasonably be regarded as compatible with the maintenance of free choice by that person (Meissner v R (1995) 184 CLR 132 at 143 per Brennan, Toohey and McHugh JJ).
  41. Evidence of:
    1. The existence of an ulterior or improper motive;
    2. The nature of the relationship between the accused and other person;
    3. The nature of the persuasion (e.g. was the conduct aimed at advancing a legitimate interest of the person entering the plea?); and
    4. Harassment or intimidation;

    are all relevant to determining whether the conduct of the accused amounted to improper or unlawful pressure and therefore tended to pervert the course of justice (Meissner v R (1995) 184 CLR 132 at 143 per Brennan, Toohey and McHugh JJ, 149 per Deane J).

  42. Where the means employed by the accused extend beyond lawful persuasion into improper or unlawful pressure, the actus reus of the attempt offence will be satisfied, even if the purpose for engaging in the conduct was compatible with the administration of justice (i.e. preventing a person from committing perjury). In contrast, if the aim of the conduct is not compatible with the administration of justice then the actus reus will be met even if the conduct of the accused only amounts lawful persuasion (Meissner v R (1995) 184 CLR 132 at 142 per Brennan, Toohey and McHugh JJ, 149 per Deane J and 159 per Dawson J; see also R v Kellett [1976] QB 372 at 388).

    Intention to pervert the course of justice

  43. The second element of both offences is that the accused intended to pervert the course of justice (R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ and 282 per Brennan and Toohey JJ).
  44. However, a person can be guilty of either offence even if s/he does not have the concepts of ‘course of justice’ or ‘pervert’ in mind when they engage in the relevant conduct (Meissner v R (1995) 184 CLR 132 at 159 per Dawson J; see also Librizzi v R (2006) 33 WAR 104 at [48]).
  45. It is sufficient to prove the person engaged in conduct for a purpose that would result in the perversion of the course of justice, if that purpose was carried out successfully (Meissner v R (1995) 184 CLR 132 at 144 per Brennan, Toohey and McHugh JJ and 159 per Dawson J; see also Librizzi v R (2006) 33 WAR 104 at [48]; cf Hatty v Pilkinton (No 2) (1992) 35 FCR 433 at 439).
  46. For example in Meissner v R, the relevant mens rea was the intention to induce the entry of a guilty plea when the person induced would not, or might not, have entered that plea when exercising free choice (Meissner v R (1995) 184 CLR 132 at 144 - 147).
  47. Another example is Tognolini v R, where the accused attempted to prevent a prosecution for offences for which he believed he was innocent. The defence argued the accused did not have the requisite intention to pervert the course of justice because of the belief in his innocence. The court held the accused did intend to induce and threaten witnesses to alter their evidence and this conduct, if successful, result in the perversion of the course of justice (Tognolini v R (2011) 32 VR 104 at [44]).

    Proving intention before a course of justice has commenced

  48. For the offence of attempting to pervert the course of justice, the prosecution must prove the accused’s intention related to a “course of justice”. Therefore, the conduct must be directed towards perverting “imminent, probable or even possible judicial proceedings” (R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ).
  49. It is not sufficient to prove a mere intention to deceive a police investigation without a connection to future judicial proceedings (R v Rogerson (1992) 174 CLR 268 at 284 per Brennan and Toohey JJ).
  50. The evidence must be capable of showing that:
  51. It is only necessary for the prosecution to prove the accused contemplated “imminent, probable or possible” judicial proceedings (R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ and 284 per Brennan and Toohey JJ).
  52. Therefore, the prosecution does not need to prove the possibility of proceedings in fact and as such it is not necessary for any other party, agency or person (including the police) to have contemplated proceedings before the accused engaged in the alleged conduct (R v Rogerson (1992) 174 CLR 268 at 277 per Mason CJ and 284 per Brennan and Toohey JJ).

    Penalty notices and warning about prosecution

  53. If the prospect of judicial proceedings are distant or hypothetical, and there is no indication that the accused contemplated such proceedings, this will not be sufficient to amount to an intention to pervert the course of justice (R v Einfeld (2008) 71 NSWLR 31 at [134]).
  54. For example, making false statements in respect of penalty notices issued under an administrative system, will not in the ordinary course amount to the attempt offence.
  55. Typically, under an administrative system, judicial proceedings are only instituted if the person who had received the notice wished to appeal it. Where there is no indication that the accused had contemplated such an appeal, there is no “imminent, probable or possible” judicial proceeding to be perverted (Police v Zammitt [2007] SASC 37 at [54]-[56]; R v Einfeld (2008) 71 NSWLR 31).
  56. Conversely if at the time the accused engaged in the relevant conduct, the accused had previously been warned of a probable prosecution, or had otherwise contemplated one (i.e. considering an appeal of a penalty notice), then it is likely to be open to find the accused engaged in the alleged conduct intending to deflect the contemplated proceedings (see, e.g., R v Beckett (2015) 256 CLR 305).

    Differences between the two offences

  57. The two offences both involve conduct with an intention to pervert the course of justice, but are distinguished by result (R v Beckett (2015) 256 CLR 305 at [37]).
  58. There are two key differences between the two offences:
    1. First, to prosecute the offence of perverting the course of justice, a judicial proceeding must be on foot at the time the relevant conduct was undertaken and thus a course of justice commenced [see the section above on the commencement of the course of justice].
    2. Second, for the offence of attempting to pervert the course of justice, the prosecution must only prove the conduct had the tendency to pervert the course of justice. In contrast, for the offence of perverting the course of justice it must be proved that the conduct actually did effect such a perversion.
  59. Under s 320 of the Crimes Act 1958 both offences have the same maximum sentence of 25 years imprisonment.

Last Updated: 27 April 2016

In This Section

7.8.3.1 - Charge: Perverting the course of justice

7.8.3.2 – Checklist: Perverting the course of justice

7.8.3.3 - Charge: Attempting to pervert the course of justice (Course of justice commenced)

7.8.3.4 – Checklist: Attempting to pervert the course of justice (Course of justice commenced)

7.8.3.5 - Charge: Attempting to pervert the course of justice (No course of justice commenced)

7.8.3.6 – Checklist: Attempting to pervert the course of justice (No course of justice commenced)

See Also

7.8 - Offences against justice

7.8.1 - Statutory Perjury

7.8.2 - Common Law Perjury