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Court of Appeal of New ZealandLast Updated: 27 August 2010
IN THE COURT OF APPEAL OF NEW ZEALAND
CA180/2009 [2009] NZCA 472BETWEEN ANGELINE CLARK MCMAHON
Appellant
Hearing: 13 October 2009
Court: Glazebrook, Potter and Wild JJ
Counsel: G J Thwaite for Appellant
M D Downs for Respondent
Judgment: 13 October 2009
Reasons for Judgment: 18 August 2010 at 4.00 pm
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JUDGMENT OF THE COURT
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____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Factual background [8]
Charges against Brandon [8]
Police visits to Ms McMahon’s home [11]
Mc McMahon’s evidence on police visits [17]
Failure to cross-examine [23]
Events at the meditation centre [26]
Other contact with Brandon [32]
Subsequent events [33]
Relevant statutory
provisions [36]
Errors in
the course of the trial [39]
Course of conduct [42]
Actus reus and mens rea [44]
What is the course of justice? [45]
What is the relevance of an arrest warrant? [56]
What if there is no arrest warrant? [61]
What the jury should have been told [63]
Could Ms McMahon’s
conduct constitute a crime under s 117(e)? [66]
Contentions on behalf of Ms McMahon [66]
Freedom of movement [68]
Statutory headings [70]
Role of police [74]
No offence of assisting a person to avoid arrest [76]
Relationship between s 71 and s 117(e) [78]
Delay [84]
Summary of
principles from the case law [87]
Should there be an order for a
retrial? [88]
Result [94]
Introduction
[1] Following the hearing of this appeal on 13 October 2009, we gave judgment allowing Ms McMahon’s appeal, quashing her conviction, and directing the entry of a verdict of acquittal. We made no order for a retrial. These are our reasons for that judgment, which we indicated would follow.
[2] Ms McMahon appealed by notice dated 27 March 2009, both against her conviction and her sentence. Ms McMahon was originally charged, by information laid indictably on 30 April 2007, with a crime under s 71 Crimes Act 1961. The information alleged that, on 10 January 2007:
(Together with Victor Nottleman) knowing person party to offence punishable by imprisonment assisted that person to avoid arrest.
[3] That charge was abandoned by the police after the depositions hearing held on 28 September 2007. That was because a prerequisite for a crime under s 71 is that an offence must have been committed by the person assisted. That transpired not to be the position here.[1]
[4] Subsequently, an indictment was laid charging, under s 117(e) of the Crimes Act, that Ms McMahon:
... on or about the 10th day of January 2007 at Makurau wilfully attempted to obstruct the course of justice in New Zealand.
[5] The Crown alleged that, despite having the knowledge that the police were looking for her son in relation to an alleged criminal incident, Ms McMahon helped enrol her son under an assumed name at a meditation centre in a remote location so as to hide him from the police.
[6] Following a trial in the District Court at Whangarei in December 2008, the jury found Ms McMahon guilty of the new charge. She was subsequently sentenced to 18 months imprisonment on 9 March 2009. Judge Roberts was the trial judge.
[7] We have divided this judgment into the following sections:
- (a) Factual background.
- (b) Relevant statutory provisions.
- (c) Errors in the course of the trial.
- (d) Could Ms McMahon’s conduct constitute a crime under s 117(e)?
- (e) Should there be an order for a retrial?
Factual background
Charges against Brandon
[8] On 3 December 2006 Ms McMahon’s son, Brandon, was at Ocean Beach, Whangarei with two associates. It was alleged that Brandon assaulted a young life guard. There was also a very serious assault on an older lifeguard who had come to the assistance of the victim and to try and diffuse the situation.
[9] Brandon was arrested for his assault on the young lifeguard that evening and appeared in the Whangarei District Court the next day where he was released on bail to Ms McMahon’s house. Ms McMahon had not, however, agreed that he could reside there and there was an issue with him doing so under the terms of a Family Court order relating to Ms McMahon’s other children. On 6 December 2006 Brandon’s two associates were arrested with regard to the serious assault on the older lifeguard.
[10] From the Judge’s sentencing notes, it appears that an information was laid against Brandon in the District Court with regard to the serious assault on 7 December 2006. A warrant was then issued for his arrest. Another warrant for his arrest was issued on 20 December 2006 with regard to Brandon’s breach of bail following his arrest for assault on the young lifeguard.
Police visits to Ms McMahon’s home
[11] On the same day Brandon’s two associates were arrested (6 December 2006), police officers went to Ms McMahon’s home. They wanted to speak to Brandon about the assault on the older lifeguard. The officers told Ms McMahon that her son Brandon had “some implication or some involvement” in an incident they were investigating and they needed to speak to him. At the request of the police, Ms McMahon called Brandon to the door. Brandon came dressed in a pair of shorts. The officers asked Brandon to accompany them to the police station, but agreed he should first change his clothing. Instead of doing this, Brandon ran out the back of the house. It is not suggested that Ms McMahon was responsible for Brandon’s flight.
[12] After the police realised Brandon had left the address they talked to Ms McMahon and her then partner (Mr Nottleman). One of the detectives (Detective Hamilton) said in evidence:
- So you realised he’s left the address, did you speak to the accused about that?
- Yeah I spoke to both Ms McMahon and her partner just in general conversation to just point out the fact that Brandon needed to be spoken to, that if she knew where he was or had any inkling or however it may be to bring him to us, bring him to me and we will speak to him and get sorted out what needed to be sorted out, it was a general conversation it wasn’t – it was can you do this for us and help us along.
- And did she respond to that at all?
- I got the impression that she was more than helpful, I did stress to her however that Brandon was liable to be arrested for his involvement, I think she was made aware of that and let the process take its course and bring him to us so we can get it cleared up sooner rather than later.
- So on 6 December 2006 there wasn’t an arrest out for Brandon at that point?
- As in [an arrest] warrant or?
- Yes.
- No not that I was aware of it was just a case of progressing the investigation and with that wished to speak with Brandon. [Emphasis added]
[13] Detective Constable Westcott called at Ms McMahon’s home later on 6 December. Ms McMahon approached him when he was by his car outside the address and there was discussion about Brandon coming to the police station with a lawyer:
- You said she approached you and she seemed annoyed?
- Yes she asked me why, simply why were we here, Brandon had already spoken to us and why were we hassling him. ...
- Okay. Your response?
- I simply explained why we were here and that we had spoken to Brandon regarding the incident on the 3rd of December but other witnesses had provided us with further information and we needed to speak to him about that information.
- Okay, and her, what was her reply when you explained a bit more about why you wanted to see Brandon?
- She seemed a bit more relaxed and I recall we actually discussed getting a lawyer, Brandon contacting a lawyer, or her contacting a lawyer and then coming down to the police station with a lawyer.
- Why would you suggest she contact a lawyer?
- It appeared to be the best course of action for her and the family. ...
- After you – or when you had this discussion about either Brandon or herself getting a lawyer, did she say anything to you?
- We discussed who her, who his lawyer was from the previous incident and we talked about David Sayes and I offered if she had any difficulty contacting him I had his number and I was more than happy to contact him, for him to call her. ...
- Now did all this still happen outside by your vehicle, this conversation?
- Yes.
- Okay and what happened after that?
- Then we asked if we could look through her house and she gave us her consent to search the house.
[14] At Ms McMahon’s trial, Detective Constable Westcott gave evidence that he had spoken again to Ms McMahon at her home on 3 January 2007. He had told her that Brandon had been sighted nearby and asked for her consent to search the house (which was given) and said “there was now a warrant out for (Brandon’s) arrest”. He repeated that “they need to contact a lawyer for them to contact us”. He said in evidence:
- And you just said you reiterated that she should get in touch with either you or a lawyer, is that what ...
- Just a lawyer, to contact the lawyer again for them to come to the police station.
- Did you explain under what circumstances they should come to the police station?
- Just that there was a warrant out for his arrest now and just to go through those channels again, contact a lawyer, is the best course of action for them.
[15] Later in his evidence, the detective reiterated that he had not said to contact the police. He had said to contact a lawyer. He said that Ms McMahon “appeared pleasant and cooperative throughout”.
[16] Another police officer, Detective Crawford, gave evidence of a further police visit that occurred on 11 January 2007. Detective Crawford said that four officers visited Ms McMahon’s house at 8.20am. Detective Crawford outlined that he heard a Constable ask the two occupants of the house to go to the front door. He heard a woman screaming and he walked to the bedroom window of the house to see a male standing in the room and a blonde middle-aged female in the bed. He advised the male through the window that he had an arrest warrant for Brendon McMahon which allowed him to search the house. He then gave the arrest warrant to a female officer and sent her into the bedroom to speak to Ms McMahon. He stated that he subsequently entered the bedroom and Ms McMahon was looking at the warrant. The Detective’s notes recorded that Ms McMahon was verbally abusive and yelling at the officers. When Ms McMahon was informed that she could be arrested for assisting Brandon, her response was that her son did not live there and she repeatedly asked the officers to leave.
Ms McMahon’s evidence on police visits
[17] Ms McMahon gave evidence in her own defence. She agreed that the events of 6 December 2006 unfolded “pretty much” as Detective Hamilton described. Detective Hamilton had told her that “he was there to question Brandon and that he had given a statement the day before and they wanted to firm that up”. She also agreed that she had spoken to Detective Constable Westcott that afternoon but said that he left out “one essential comment”:
- That ah, well um, the police know that Brandon had nothing to do with the more serious assault on this specific person.
[18] Mc McMahon said that she had, within a couple of days of that conversation with Detective Constable Westcott, met up with Brandon in Auckland at Mr Barry Hart’s chambers. A friend of her partner’s had referred the matter to Mr Hart:
- ... Why did you decide to meet Brandon at a lawyer’s office?
- Well as I said to Constable Westcott, we would be seeking independent legal advice, that’s what we were there to do, get that advice, in particular for Brandon, to get that advice.
[19] Mc McMahon also testified that she had seen Detective Constable Westcott on a number of occasions after 6 December and he had repeated his comment to her that the police knew Brandon had nothing to do with the more serious assault.
[20] During questioning at trial, it was put to Detective Constable Westcott that on each of the occasions he spoke to Ms McMahon that she reminded him of the fact he had said to her that Brandon had nothing to do with the serious criminal incident, and Detective Constable Westcott stated that he could not recall the exact words of Ms McMahon. It was also asked whether the job sheet, created a few days after 6 December, contained any mention of Ms McMahon saying to him, or of him telling Ms McMahon, that Brandon had nothing to do with the serious criminal offence. Detective Constable Westcott stated that these words were never recorded in the job sheet. He did, however, deny that he had said to Ms McMahon that he knew Brandon was not involved:
- I put it to you that when you were discussing that matter with Ms McMahon, you told her ‘We know Brandon had nothing to do with this serious criminal incident’.
A No I couldn’t say that otherwise I wouldn’t have been at her address.
[21] Ms McMahon had no recollection of being told on 3 January 2007 that there was a warrant out for Brandon’s arrest. She said that she had fallen off a horse onto her head on 1 January, which might explain her lack of memory or she had perhaps just not understood.[2]
[22] With regard to the 11 January incident, Ms McMahon stated that that she had woken up to see an officer staring at her, and then a conversation between Mr Nottleman and Detective Crawford occurred through the window. Ms McMahon stated that she felt offended when a female officer came into her bedroom. She stated that, after some time, she was handed a piece of paper, that she looked at it and was confused by it. Her best memory of what the paper contained was that it was something that was signed off on 5 January by the Court.
Failure to cross-examine
[23] For completeness, we note that it was asserted on appeal that there had been a failure to cross-examine Detective Constable Westcott properly on his assertion that he gave a verbal indication of an arrest warrant to Ms McMahon on 3 January 2007. It was submitted that cross-examination should have focussed, among other things, on the lack of police notebooks to support the claim, the failure of the interim summary to mention that alleged conversation and the inconsistency between this account and the account of the visit on 11 January 2007 when the police held and showed Ms McMahon a copy of a warrant.[3]
[24] In his affidavit before this Court, trial counsel stated that he did not accept that such a cross-examination would have aided Ms McMahon’s case.
[25] In what was we consider a legitimate tactical decision, trial counsel had chosen to deal with this matter in closing at trial, concentrating on Ms McMahon’s understanding of the position rather than on what Detective Constable Westcott might have said. Trial counsel stated in closing that Detective Constable Westcott had given evidence that he had informed Ms McMahon that there was a warrant for Brandon’s arrest. Trial counsel then referred to Ms McMahon’s evidence that she had no recollection of seeing Detective Westcott on 3 January nor any recollection of Detective Westcott telling her there was a warrant for Brandon’s arrest. Trial counsel then went on to say that vagueness in memory is part of human nature and then stated:
[Y]ou’ll recall I didn’t put to Detective Westcott, “well no you didn’t say that”. He may well have. What’s important is Ms McMahon’s state of mind. That’s the focus here. What’s in her state of mind. And you heard the evidence about her falling off the horse and how that had affected her and that wasn’t seriously challenged by my learned friend in cross-examination. So bearing these factors in mind and on the basis of the evidence you’ve heard I suggest that Ms McMahon had no knowledge that there was a warrant for Brandon’s arrest prior to her attending the meditation centre on the 10th of January. [Emphasis added]
Events at the meditation centre
[26] The Crown evidence was that on 10 January 2007 Ms McMahon and her partner took Brandon to a meditation centre near Kaukapakapa in the Makurau area. A Crown witness told the Court that the centre was “fairly isolated”: it was in a bush clad valley about 20-30 minutes up a dirt road. This witness also told the Court that participants in the centre’s courses were not meant to communicate or to have contact with each other or the outside world until the end of the course.
[27] The Crown evidence was that Ms McMahon had completed some of the paperwork involved in enrolling Brandon at the meditation centre. Brandon’s enrolment form stated his name as “Blake Aken” and recorded “Angeline Clark”[4] as the emergency contact person. The Crown’s evidence was that Ms McMahon took bedding from her car for Brandon’s use at the centre.
[28] Another witness from the centre gave evidence that Ms McMahon and her partner collected Brandon at the end of the ten day course, and then brought him back again on the evening of 23 or 24 January 2007 to begin a second ten day course. This witness described Ms McMahon returning with Brandon fairly late at night and said that she had told him that “Blake” would be on the next course and needed somewhere to stay. The Crown’s evidence was that Brandon left the second course unannounced, after he became aware that the police had sent his photograph to the meditation centre.
[29] The jury heard further evidence that Ms McMahon and her partner had returned to the centre on or about 14 February 2007. This coincided with the start of a further ten day course. The Crown’s evidence was that Ms McMahon and her partner were asked to leave because the meditation centre did not want trouble with the police. A witness from the centre said that Ms McMahon, when he suggested that he should call the police, became “defensive” and attempted to persuade him not to do so.
[30] In her evidence in Court, Ms McMahon accepted that she had been involved in taking Brandon to the meditation centre on 10 January, but denied going there again, save for the last visit on 14 February 2007. Ms McMahon stated that she was involved in taking Brandon to the meditation centre on 10 January because she had an understanding from her partner that there had been an arrangement for Brandon to go on the course. She also denied that she knew that Brandon had been introduced as “Blake” on the 10 January visit.[5] She stated that Brandon had simply asked her what address she should put on the form and she had said “not mine”. She then filled out the address and other contact details and wrote “Angeline Clark, mother”. Ms McMahon was unable to recall if other parts of the form had been filled out at the time she filled out her details.
[31] Ms McMahon gave a different account of the last visit to the centre in February. She stated that she was trying to find another medical centre with her partner which had some link with the meditation centre. As they were unable to find the medical centre, they drove to the meditation centre. Ms McMahon stated that her youngest son was in the car and said that he would go inside the meditation centre to ask where the medical centre was, which she assumed he then did.
[32] Ms McMahon also admitted that she had had telephone contact with Brandon after 10 January:
Q On average how often would these conversations be?
[Emphasis added]
[33] Brandon was arrested by the police on 9 May 2007. He was subsequently found not guilty at trial of the serious assault on the older lifeguard of 3 December 2006. His two co-accused were both found guilty of wounding with intent to cause grievous bodily harm with regard to that assault. His co-accused were both sentenced to 10 years imprisonment with a minimum non-parole period of six years. Brandon pleaded guilty to the assault on the young lifeguard referred to at [9] and was sentenced to seven months imprisonment.
[34] Detective Crawford also stated he had spoken to Ms McMahon on 23 April 2007, telling her that he wished to speak to her about her taking Brandon to the meditation centre on 10 January. He said that Ms McMahon exercised her right to remain silent, beyond saying that she had “reasons” for taking Brandon to the centre. Ms McMahon was subsequently arrested on that day.
[35] As noted above, on 11 December 2007 Ms McMahon was convicted on one count of wilfully attempting to obstruct the course of justice. After Ms McMahon’s conviction, she began her prison sentence on 9 March 2009 (having been on bail until that point). She was, however, granted bail by Chambers J on 11 September 2009, pending appeal.[6] Therefore, by the time Ms McMahon was granted bail she had already served six months of her sentence of 18 months imprisonment.
Relevant statutory provisions
[36] Sections 116 and 117 of the Crimes Act read:
116 Conspiring to defeat justice
Every one is liable to imprisonment for a term not exceeding 7 years who conspires to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
117 Corrupting juries and witnesses
Every one is liable to imprisonment for a term not exceeding 7 years who—
(a) dissuades or attempts to dissuade a person, by threats, bribes, or other corrupt means, from giving evidence in any cause or matter (whether civil or criminal, and whether tried or to be tried in New Zealand or in an overseas jurisdiction); or
(b) influences or attempts to influence, by threats or bribes or other corrupt means, a member of a jury in his or her conduct as such (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(c) accepts any bribe or other corrupt consideration to abstain from giving evidence (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction); or
(d) accepts any bribe or other corrupt consideration on account of his or her conduct as a member of a jury (whether in a cause or matter tried or to be tried in New Zealand or in an overseas jurisdiction, and whether the member has been sworn as a member of a particular jury or not); or
(e) wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
[37] Section 71(1) Crimes Act provides:
71 Accessory after the fact
(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him, in order to enable him to escape after arrest or to avoid arrest or conviction.
(2) No person whose spouse or civil union partner has been a party to an offence becomes an accessory after the fact to that offence by doing any act to which this section applies in order to enable the spouse or civil union partner, or the spouse, civil union partner, and any other person who has been a party to the offence, to escape after arrest or to avoid arrest or conviction.
[38] The maximum sentences for conviction under s 71 are prescribed in s 312 of the Crimes Act: seven years imprisonment if the maximum punishment for the crime which the principal offender committed is life; five years imprisonment if the maximum punishment for the crime which the principal offender committed is ten years or more; or half the maximum punishment for the crime which the principal offender committed in any other case.
Errors in the course of the trial
[39] The Crown conceded at the hearing of the appeal on 13 October 2009 that the absence of direction by the Judge as to what constituted the actus reus of the offence, coupled with a further direction that he gave after recalling the jury at the end of his summing up, created a real risk of material misapprehension on the part of the jury as to what had to be proved by the Crown.
[40] This is the Judge’s direction to the jury:
The points of importance are these. Firstly, the date. You’ll know now and understand the significance of the date. Both counsel have canvassed that with you in their closing submissions to you. The second is this aspect of wilfully. Wilfully means, as you’ve probably recognised, deliberately or intentionally with an objective in sight. The next issue of importance is attempt. It says there attempted. That requires some positive act and it’s the positive act here the Crown relies on the accused and her actions on the 10th of January 2007 enrolling her son at the mediation centre. Finally, the obstruction of the course of justice. It’s already been put before you obstruction covers conduct which seeks to thwart or delay the sheeting home of criminal liability against an individual. You’ve got to be satisfied that there was an attempt, you’ve got to [be] satisfied that it was deliberate and you’ve got to be satisfied that the attempt was an attempt to obstruct the course of justice. It does not matter that the attempt was unsuccessful. That, by its very nature is the essence of the charge. The Crown says she tried. I would not have thought the other issues are going to give you much area of concern. Makurau is the area down by the meditation centre. That is not disputed. The issue is whether or not this accused on that day wilfully attempted to obstruct the course of the justice and that provides you with the basis on which Ms Patterson broke down the charge into her four categories.[7] [Emphasis added]
[41] A few minutes after the jury had retired to consider its verdict, the Judge brought them back and gave them this further direction:
It was longer than five minutes, I’m sorry. I want to deal with the indictment again. When I was going through the indictment with you I referred to the 10th of January 2007. I want to make it clear that the Crown case is not restricted to activities on that date. I mentioned the date on the basis that that was the date of the enrolment. You are however, entitled to take into account the subsequent acts, acts after that date that the Crown relied on to demonstrate a course of conduct. A course of conduct which might show the accused have attempted to obstruct the course of justice. You’re not confined when you look at guilt or innocence to act on the 10th of January. You remember what the Crown relies on, the subsequent behaviour, the attendance to uplift, the attendance to re-enrol. Those matters, of course, are denied by the accused. You’ll take that into account. Thank you. [Emphasis added]
Course of conduct
[42] The Crown’s concession is a proper one as to the further directions after the recall of the jury.[8] If the Crown was alleging that a course of conduct occurred on 10, 23 or 24 January and 14 February 2007, or between 10 January and 14 February 2007, then it should have framed its indictment accordingly. This was not a situation where the Crown was unable to specify the dates on which it alleged the offending occurred and thus it was not a situation where it was appropriate for the Crown to allege offending “on or about” a particular date. That emerges from this Court’s comments in R v Hughes.[9]
[43] The Judge’s directions could only have risked a miscarriage because they left the jury without clear guidance as to what conduct comprised the alleged crime “on or about 10 January 2007 at Makurau”. We accept that it could be argued that Ms McMahon’s later actions, if the jury accepted they occurred, could have shed light on her state of mind on 10 January 2007. However, the later incidents were not put before the jury on that basis. The later incidents were put before the jury as a course of conduct. That was not the way the indictment was framed.[10]
Actus reus and mens rea
[44] More importantly, however, it was never made clear to the jury exactly what had to be proved by the Crown with regard to establishing the actus reus of the offending and the requisite mens rea. While the Judge identified the relevant conduct as being “conduct which seeks to thwart or delay the sheeting home of criminal liability against an individual”, he did not direct the jury in a case specific way, in particular whether interfering with the work of the police sufficed. As to mens rea, as this Court acknowledged in R v Meyrick adopting the comments made by Brennan and Toohey JJ in R v Rogerson,[11] s 117(e) creates a substantive offence which requires proof of an intention to pervert the course of justice.[12]
What is the course of justice?
[45] The scope of the term “the course of justice” was examined by the High Court of Australia in Rogerson. In that case the charges had arisen 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.
[46] Brennan and Toohey JJ held that 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. This can be done in a variety of ways:[13]
... 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.
[47] It was held that a police investigation in and of itself does not fall within the scope of the course of justice.[14] However, while police investigations into possible offences against the criminal law[15] 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. This was explained by Brennan and Toohey JJ on the basis 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, amounts to an attempt to pervert the course of justice. [16]
[48] In Rogerson, Brennan and Toohey JJ explored what must be proved to establish that an intent to pervert the course of justice exists when an individual interferes with a police investigation. The Judges noted, in the context of the offence of conspiring to pervert the course of justice, that:[17]
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.
[49] This Court adopted such reasoning in Meyrick. In Meyrick, the appellant’s partner had handed in the appellant’s computer hard drive, which contained child pornography, to the police. A search warrant was issued for the appellant’s daughter’s home, the daughter being in possession of the appellant’s computer tower. The appellant subsequently removed the computer tower from his daughter’s home. Despite his claim that the computer tower had no evidential significance and added nothing of value to the hard drive in police possession, he was charged with wilfully attempting to pervert the course of justice under s 117(e).
[50] Following the approach taken in Rogerson, the Court said this:[18]
The “course of justice” undoubtedly includes the administration of justice by publicly established tribunals, see, for instance, Rogerson. It is sometimes said that the “course of justice” extends to cover police investigations. There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced ... But the fact remains that the tendency and intention which are critical must be addressed to actual or contemplated proceedings before constituted tribunals, a point which emerges clearly from Rogerson.
[51] The Court also specifically examined the issue as to whether wilful interference with a search warrant would fall within the scope of s 117(e). The Court concluded that interference with the execution of a warrant could perhaps be regarded as a subset of the course of justice. The Court reasoned that, if a person knew that a search warrant had been issued, the removal of an item that the police intended to seize as part of a search warrant could be regarded as intended to defeat the execution of that search warrant and therefore intended to defeat the course of justice. This was on the assumption that the person would have appreciated that there had been a judicial process, which had resulted in the making of a court order. The Court said that wilful interference with that order would probably be sufficient to attract liability under s 117(e).[19] It was not necessary to decide the point, however, as the appellant in Meyrick had denied knowing that a search warrant was to be executed.
[52] For completeness we note that, at first sight, the reasoning in Meyrick and Rogerson could appear to conflict with the reasoning of McCarthy J[20] in the earlier decision of this Court in R v Kane.[21] In Kane, there had been a stabbing in a public house. The accused persuaded the offender and a witness to the stabbing to tell false stories to the police. This occurred after the stabbing incident itself and before the police were called. The persuasion carried on until after the arrival of the police. The issue in the case was whether legal proceedings had to have been commenced for a person to be convicted of attempting to pervert the course of justice.
[53] McCarthy J noted the submission there was no offence at common law of making a false statement to the police. He considered that too wide a statement. While the charge of perverting the course of justice at common law did not lie in all cases of making a false statement to the police, it could lie:[22]
... 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.
[54] McCarthy J then adopted what Lord MacDermott said in R v Bailey:[23]
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.
[55] While the adoption of Lord MacDermott’s statement might appear to adopt a position that all interference with police investigations would constitute offences under s 117(e), this has to be read in light of McCarthy J’s earlier comments set out at [53] above. The accused must contemplate that a prosecution might follow and intend to obstruct or pervert that prosecution. This is entirely consistent with Meyrick a[24] Rogerson.24
What is the relevance of an arrest warrant?
[56] While this Court in Meyrick examined whether the issue of a search warrant falls within the parameters of the “course of justice”, the issue as to whether the course of justice has begun at the time an arrest warrant has been issued has not been examined by this Court.
[57] This issue has, however, been discussed by courts in other jurisdictions. In McElhinney (James) v Normand, it was held by Lord Sutherland, of the High Court of Justiciary, that the course of justice commenced when the police officers were informed of the existence of the warrant and set off in chase of an individual.[25] It was found that the course of justice was prevented by the appellant removing the object of the chase.[26]
[58] In R v Todd,[27] a decision of the South Australian Supreme Court relied upon by both Mason CJ and McHugh J in Rogerson,[28] it was established that the “course of justice” begins at the very latest with the issue of a warrant. The Court in Todd noted that Chitty’s Criminal Law contains numerous precedents of indictments for “offences against public justice”, including one for “assaulting and obstructing a person aiding a constable in securing a party on a justice’s warrant”, which was seen as being to “the great hindrance of justice”. It was therefore said that, at common law, the course of public justice in a criminal case commenced at the latest with the issue of a warrant.[29]
[59] Under s 19 of the Summary Proceedings Act 1957, if a defendant is liable on conviction for a sentence of imprisonment, a District Court Judge, Community Magistrate or Registrar may issue a warrant to arrest the defendant and bring him or her before a court. This would suggest that, as acknowledged by the South Australian Supreme Court in R v Todd, the course of justice begins at the point at which a warrant is issued.
[60] Therefore, if an individual, with knowledge that an arrest warrant has been issued, takes positive steps in order to interfere with the execution of that warrant, he or she will have formed the requisite intention to establish liability under s 117(e). The person would, however, have to appreciate that the arrest warrant is a court document.[30]
What if there is no arrest warrant?
[61] With regard to police investigations that occur prior to the issue of a warrant, as outlined by this Court in Meyrick, an intention merely to interfere in some way with that police investigation will not in and of itself suffice to establish interference with the course of justice. Any interference with a police investigation must be undertaken with a view to adversely affecting proceedings that an accused knows have been instituted or that the accused contemplates might follow.
[62] Where an accused knows a crime has possibly been committed and/or knows of an investigation into a possible crime and there is an attempt to destroy possible evidence or to influence witnesses, an intention to affect proceedings could be readily inferred. As no one is obliged to talk to a police officer,[31] however, merely hindering a police investigation by helping a person (including a suspect) to avoid speaking to the police is unlikely to suffice. At the least, a person would have to know that the police intended to arrest someone[32] or know or suspect a crime has been committed[33] and take positive steps to help another person avoid arrest.[34] In that case, it could well be inferred that a person contemplated court proceedings might follow and that the person’s actions were designed to interfere with (or stop or delay) those proceedings.
What the jury should have been told
[63] In this case the jury should have been told (with regard to Ms McMahon’s mens rea) that the Crown had to prove to the requisite standard that either:
(a) Ms McMahon knew of the existence of the arrest warrant before 10 January 2007, that she appreciated that it was a court document[35] and that she intended to interfere with the execution of it; or
(b) Ms McMahon knew that the police wished to arrest Brandon[36] and that her actions with regard to the meditation centre were undertaken with a view to affecting judicial proceedings she contemplated might be instituted.
[64] That was never made clear to the jury. The Judge in his summing up did remind the jury of the evidence of Detective Constable Westcott that he had told Ms McMahon about the existence of the warrant on 3 January 2007 and also of Ms McMahon’s evidence that she had no recollection of Detective Constable Westcott speaking to her about this on 3 January.[37] This, however, did not suffice as the significance of that evidence was not explained. Further, there was nothing said about the possibly conflicting advice of Detective Constable Westcott about going to a lawyer rather than to the police.[38] This could have had the potential to cause confusion regarding the existence of the warrant[39] or as to Ms McMahon’s responsibilities relating to the execution of that warrant.[40]
[65] In light of the errors in the summing up, it is clear that the conviction cannot stand.[41] Mr Thwaite, however, on behalf of Ms McMahon, submitted that Ms McMahon’s actions could, in any event, never have constituted an offence under s 117(e) of the Crimes Act. We now examine that contention.
Could Ms McMahon’s conduct constitute a crime under s 117(e)?
Contentions on behalf of Ms McMahon
[66] On behalf of Ms McMahon, Mr Thwaite submitted that s 117(e) should be interpreted in light of:
(a) The right to freedom of movement in s 18(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights).
(b) The structure of the Crimes Act which tells against an extensive interpretation of s 117(e), as the heading of the section is “Corrupting juries or witnesses” and the section falls within the subpart entitled “Misleading Justice”.[42]
(c) The fact that the police are outside the judicial system and (at the relevant time) acted under the Police Act 1958.
(d) The fact that there is no specific primary offence of avoiding arrest or assisting a person to avoid arrest in the Crimes Act or in the Summary Offences Act 1981 (although ss 112 - 119 Crimes Act create specific offences relating to escaping or assisting an escape from lawful custody after arrest or conviction).
(e) The fact that s 71 creates criminal liability for assisting another to avoid arrest but only if the following essential elements are met:
(i) The occurrence of a crime.
(ii) An act by the accused which assisted a party to the crime or an act which actively suppressed any evidence against the party to the crime.
(iii) Knowledge of the accused at the time of the commission of the act that the person assisted had committed the crime.
(iii) The purpose of the act was one of enabling the person assisted to avoid arrest.[43]
In Mr Thwaite’s submission, s 117(e) should not be interpreted as undermining the conditions set out in s 71 and in particular the condition that there must have been a crime. Mr Thwaite notes that Kane and R v Coneybear[44] can be distinguished as they do not consider the situation where there was no conviction on the underlying charge.[45]
(f) The fact that delaying the work of a police officer does not implicate the administration of law and justice. In this regard, the judgments in Kane and Coneybear may be distinguished because they concern only fabricated evidence (which is relevant to witnesses), and not arrests (which are not relevant to witnesses). Corruption of a juror or a witness may obstruct or pervert justice in that a wrong decision may be delivered. The same does not apply if an arrest is merely delayed. Further, in this case there was no evidence that the Court processes involving Brandon were delayed.
[67] We examine each of these propositions in turn. We then summarise the principles arising from the case law.
Freedom of movement[46]
[68] Mr Thwaite’s first submission is that the right of freedom of movement afforded to Brandon by s 18(1) of the Bill of Rights, coupled with ss 5 and 6 of that Act, require that s 117(e) be construed narrowly against Ms McMahon.
[69] The difficulty with this argument is that legitimate restrictions on Brandon’s freedom of movement had been imposed once the arrest warrant for the serious assault was issued.[47]
Statutory headings[48]
[70] Mr Thwaite’s next submission is that s 117(e) sits within a statutory framework, unique to New Zealand, and that s 117(e) must be interpreted in light of that framework. Mr Thwaite points out that s 117 is one of ten sections in the Crimes Act grouped under the heading “Misleading justice”. The other sections (ss 108 - 116) deal with perjury, false oaths, statements or declarations, fabricating evidence, use of a purported affidavit or declaration (ie one that the user knows was not properly sworn/declared), and conspiring to bring a false accusation or to defeat justice. Section 117 is headed “Corrupting juries and witnesses”. Invoking s 5 of the Interpretation Act 1999, Mr Thwaite relies on these headings as indications that s 117 is limited to the administration of justice by the Courts.
[71] This Court has previously emphasised that the offence now contained within s 117(e) is not constrained to the corruption of juries and witnesses. For instance, in Coneybear, this Court rejected the argument that what is now s 117(e)[49] should be so restricted. The Court noted that such a construction would give a different meaning to the words “obstruct, prevent, pervert or defeat the course of justice” from that conveyed by the same words in s 116[50] and argued that this would contravene the general rule that, where the same words occur in more than one place in the same Act, they should be treated as conveying the same sense.[51] We agree with this reasoning.
[72] Moreover, s 5 of the Interpretation Act cannot alter the meaning given to s 117. By s 5(2), matters such as the headings to sections are indications “that may be considered in ascertaining the meaning of an enactment”. However, s 5(1) provides that that meaning must be “ascertained from its text and in the light of its purpose”. As this Court observed in R v Z, the Interpretation Act does not countenance the use of headings in an act to support a meaning “in contradiction” of the text and purpose of the statute.[52]
[73] It was stated by this Court in Coneybear that when s 117 is read in the context of Part 6 of the Crimes Act, the purpose of which is to protect the administration of justice, there could be no doubt that the Legislature intended that s 117(e) should include all attempts to obstruct, prevent, pervert or defeat the course of justice not covered by the earlier subsections.[53] In light of this reasoning, we do not accept the submission that s 117(e) should be restricted in the manner suggested by Mr Thwaite.
Role of police[54]
[74] Mr Thwaite’s next argument is that the role of the police does not involve “justice”, and thus does not fit within the subpart entitled “Misleading justice” under Part 6 of the Crimes Act. Mr Thwaite’s argument is that this subpart, which includes s 117, is concerned only with the process of Court adjudication, such as perjury, false oaths and fabricating evidence. Therefore it does not apply to conduct which might interfere with the role of the police which is “to prevent crime and to detect and bring offenders to justice”.[55] The Police Act 1958, in force at the time of the alleged offence, says nothing about the functions of the police. However, Mr Thwaite points out that the eight functions of the police listed in s 9 of the Policing Act 2008 do not include any function related to the administration of justice.
[75] Mr Thwaite is correct in his submission that s 117(e) is not concerned with police investigations as such.[56] We did not understand the Crown to contend that the police administer justice in New Zealand, nor to suggest that a police inquiry in itself forms part of the “course of justice” for the purposes of s 117(e). The Crown does contend, however, that the dicta in Meyrick set out at [50] should be followed, for any departure would place New Zealand law at odds with that of our common law counterparts i[57]Austral[58],57 Canada58 and the Uni[59]d Kingdom.59 We have already indicated above that we accept that[60]ubmission.60
No offence of assisting a person to avoid arrest[61]
[76] The next submission is that s 117(e) must be interpreted in light of the fact that there is no specific offence of avoiding arrest or assisting a person to avoid arrest.
[77] The fact that there is no specific offence relating to avoiding arrest or assisting the avoidance of arrest is irrelevant to the question of whether s 117(e) covers that situation. Indeed, it might be thought to suggest that this situation is covered by s 117(e), thus making any specific provision unnecessary.
Relationship between s 71 and s 117(e)[62]
[78] Mr Thwaite submits that, under the legislative scheme in the Crimes Act, a person who could not be convicted under s 71(1) because the principal offender was acquitted after trial, should not be liable for conviction under s 117(e). In his submission, s 71 becomes redundant if a broad interpretation of s 117(e) is allowed.
[79] In our view, there is no warrant for reading into s 117(e) a requirement that a primary offender must be convicted of the substantive offence. In R v Spratt,[63] this Court held that whether or not a crime has been committed makes no difference to whether an offence can be established under s 117(e). In Spratt, the fact that the appellant was later acquitted on the Land Transport Act charges “for whatever reason” was not relevant to whether he had interfered with the investigative process, knowing that his actions in removing and destroying one of two blood specimens taken for the purpose of establishing the appellant’s blood alcohol levels had the tendency to adversely affect the outcome of the investigation.[64] The Court noted that this was analogous to R v Rafique[65] where the appellants were not found guilty of criminal offending but found guilty of attempting to pervert the course of public justice because of actions they took prior to any police investigation commencing or search warrants being issued.[66]
[80] We also note that the belief of the accused in the innocence of the person he or she is helping to avoid arrest did not appear to be taken into account in McElhinney (James) v Normand[67] where the accused was held to have perverted the course of justice. However, when interviewed by the police under caution he was asked, ‘Why did you assist the escape of Brian Smith?’, and answered, inter alia, ‘How can you help an innocent man to escape? You have got the warrant for the wrong guy’.
[81] In another context, it has been held that there is a public interest in ensuring that witnesses and jurors are not interfered with by anyone, whatever their motives. The reasoning applies also to assisting a person avoid arrest. In R v Taffs, Mr Taffs was a barrister and solicitor who had telephoned the mother of the complainant the night before a trial threatening, among other things, that he would “mince the [complainant] up in court tomorrow” and publicly expose him as a homosexual if he gave evidence against his client.[68] It was accepted for the purposes of the hearing that Mr Taffs genuinely believed that the complainant was lying.
[82] Cooke P, for the Court, held that it was lawful to try to dissuade a witness from committing perjury by reasoned argument supported by material facts and documents but threats or other improper pressure take the interference across the line into criminality.[69] To leave a lawyer free to issue threats, provided only he or she genuinely believed that the witness’ evidence would be false, would “savour of transferring the responsibility of judging the case from the Court to the legal representative of the parties”.[70]
[83] For completeness, we note that, while not relevant to conviction, the absence of the conditions set out in s 71 could, however, be relevant to sentencing. Actual innocence of the party whom an accused is attempting to assist and a genuine belief in that innocence by the accused may in some circumstances mean that culpability is lessened (but a sentencing judge must nevertheless take into account the fact that any interference with judicial processes, whatever the motive, is not a trivial matter).
Delay[71]
[84] Mr Thwaite submits that delaying the work of a police officer does not implicate the administration of justice.
[85] Once again, it is necessary to emphasise that, whether or not delaying the work of a police officer falls within the scope of s 117(e), will be dependent on the intention of individual who attempts to interfere with an investigation. While an intention merely to delay a police investigation will not suffice, if interference with the work of police is undertaken with a view to adversely affecting actual or contemplated judicial proceedings, such actions will constitute an offence under s 117(e).[72] Whether or not the Crown will be able to establish that an individual’s actions in delaying the work of the police fall within the scope of s 117(e) will be dependent in each case on the evidence that is available at trial.
[86] In this regard, however, we note that arrest warrants are themselves judicial procedures and intending to interfere with the execution of a warrant suffices (whatever the motive).[73] Even in the absence of an arrest warrant, it is not necessary to prove an actual delay in the substantive proceedings. An attempt to cause delay suffices. Further, criminal proceedings have a number of stages leading up to trial and the term judicial proceedings covers all such stages. It is not limited to the final substantive trial.
Summary of principles from the case law
[87] The following propositions emerge from the case law:[74]
(a) The object of the offence of attempting to obstruct or pervert the course of justice is to protect the process and procedures of the courts (and other tribunals).[75]
(b) It is not necessary to prove that the course of justice was in fact perverted or obstructed.[76] It is merely necessary to prove that the act had a tendency to do so and that the accused intended to pervert the course of justice (ie court or tribunal proceedings).[77]
(c) It is not necessary for court (or tribunal) proceedings to have been actually instituted.[78] It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow[79] with an intention on the part of the accused to pervert the course of justice.[80]
(d) The course of justice has begun at the time at which an arrest warrant is issued.[81] Thus, an attempt to interfere with the execution of an arrest warrant, with the knowledge that such a document has been invoked by the jurisdiction of a court, will fall within the scope of the offence.
(e) Police investigations in themselves do not form part of the course of justice. However, an act which has a tendency to deflect the police from prosecuting a criminal offence or adducing evidence of the true facts is an act which tends to pervert the course of justice if undertaken with this purpose in mind.[82]
(f) The fact that an accused may not have been convicted on an underlying charge is not relevant to a charge under s 117(e).[83] Neither is the fact that a person assisting an accused (or interfering with evidence) believes an accused to be innocent. The courts have the responsibility for judging the case and not the accused or any person assisting the accused.[84]
Should there be an order for a retrial?
[88] Mr Thwaite advanced several grounds why a retrial should not be ordered. The first ground, which the Crown accepted had force, was that Ms McMahon had been on bail for a total of 24 months[85] and in prison for six months. At the time of Chambers J’s bail decision pending appeal, Ms McMahon was due to be released automatically in three months. As Ms McMahon has served the majority of her sentence, with only three months remaining, this is a strong reason not to order a retrial.[86]
[89] Further, there is validity in the argument that the sentence imposed was out of proportion to the charge, which related only to her actions on 10 January. While these actions were not trivial,[87] it is clear from the sentencing judgment that Ms McMahon was sentenced on the basis that her conduct continued over a five month period, which was not the basis of the charge.[88] Even on the basis of a continuing course of conduct, however, the sentence might appear somewhat stern. For example, in R v Hauraki,[89] a High Court sentencing decision with facts that bear some similarity to this case, Ms Hauraki pleaded guilty to one charge of perverting the course of justice. She was involved in hiding her partner who was on the run from the police “for a good part” of the time period of 12 November 2004 to 26 July 2005. In that case a starting point of eight months imprisonment was adopted.[90]
[90] Mr Thwaite also submitted that the proceedings breached s 23(1)[91] and s 24(a)[92] of the Bill of Rights in that Ms McMahon was variously informed that she was being charged under the following sections of the Crimes Act:
(a) s 71 (Information of 30 April 2007);
(b) s 188(1) (Notice of bail of 30 April 2007);
(c) ss 121 and 122 (Notice of bail of 28 September 2007);
(d) s 312 (Letter of 28 September 2007, which should be 17 December 2007);
(e) ss 121 and 122 (Notice of bail of 2 April 2008); and
(f) s 71 (Letter of 4 June 2008).
[91] Ms McMahon had recorded her concern about the lack of information as to the charges she was facing in a hearing on 11 August 2008 and at various times throughout the process. We accept Mr Thwaite’s submission that the fact that Ms McMahon could get no clarity as to the charge she was facing was unsatisfactory (when combined with the other issues in this case) is a factor that also mitigates against a retrial.
[92] Moreover, as earlier discussed, the indictment was confined to the actions taken by Ms McMahon on 10 January 2007. It was thus necessary for the Crown to establish either that Ms McMahon was aware of the existence of the arrest warrant prior to that date (and intended to interfere with its execution), or that her actions were undertaken with a view to affecting contemplated judicial proceedings.[93] At trial, questions remained as to whether Ms McMahon was in fact made aware and understood the nature of the arrest warrant before 10 January 2007[94] and the jury were not specifically directed to this question. There may be issues on any retrial in proving an intention on the part of Ms McMahon to interfere with contemplated judicial proceedings on that date if she had been unaware of the warrant. A reasonable doubt as to this may be raised by the evidence that she wished to help Brandon avoid the police but not any judicial proceedings.
[93] Given all the circumstances of this case, we do not consider that the Crown should now be given the opportunity to improve its case or to reframe the indictment to include a course of conduct.
Result
[94] As we announced at the end of the hearing on 13 October 2009, the appeal against conviction is allowed. Ms McMahon’s conviction is quashed and we direct the entry of a verdict of acquittal. We make no order for a retrial.
Solicitors:
Crown Law Office, Wellington for Respondent
[2] On appeal
Ms McMahon sought to call independent evidence of this fall from a
horse-trekking operator who had witnessed the accident.
However,
Ms McMahon accepted during the hearing that she had not given express
instructions for such evidence to be led. Trial
counsel stated that evidence
from the witness was not called as the witness had only seen the horse accident
and did not witness
its effects upon Ms McMahon. This evidence was not
admitted on appeal as it was neither fresh nor sufficiently
cogent.
[3]
Discussed above at [16].
[4]
The appellant’s full name is Angeline Clark
McMahon.
[5] See at
[26]
above.
[6] R v
McMahon [2009] NZCA
405.
[7] (a)
wilfully (b) attempted (c) obstruct the course of justice (d) in New Zealand.
[8] Set out above
at [41].
[9]
R v Hughes [1998] 1 NZLR 409 (CA) at 410-411.
[10] This error was carried through into sentencing. The Judge sentenced Ms McMahon on the basis of a course of conduct, even though the charge on which she was convicted related only to her actions on 10 January 2007.
[11] R v
Rogerson [1992] HCA 25; (1992) 174 CLR 268 at 279. This reasoning was also explicitly
adopted by Mason CJ at 278. See also Deane J at 294 and McHugh J at
304-305.
[12] R
v Meyrick CA513/04, 14 June 2005 at
[41].
[13] At
280.
[14] At 283 per
Brennan and Toohey JJ. See also at 276 per Mason CJ, at 293 per Deane J and at
302 per McHugh
J.
[15] Or a
disciplinary
code.
[16] At
283-284.
[17] At 284. This
reasoning was endorsed by Mason CJ at 279. The issue as to what the Crown would
need to prove to establish an intent
to interfere with proceedings was not
explicitly discussed by the other judges. Deane J did allude to the issue when
stating “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.” There was no expansion on this
statement. McHugh J did not deal with this
issue.
[18] At
[42].
[19] At
[44].
[20] For the
Court.
[21] R v
Kane [1966] NZCA 24; [1967] NZLR 60 (CA). In Rogerson, at 227, Mason CJ
rejected the Court of Appeal’s adoption in Kane of Lord
MacDermott’s approach in R v Bailey [1956] NI 56 (CCA). Brennan
and Toohey JJ, at 283, saw Kane as treating a police investigation as
part of the course of justice and stated that they did not agree with such
reasoning.
[22] At
63.
[23] R v
Bailey [1956] NI 56 (CCA).
[24] This Court in
Meyrick indeed considered that the reasoning in Kane was
consistent with the reasoning in Meyrick: at [42]. It can also be
noted that McHugh J in Rogerson saw Kane as 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: at
305-306.
[25]
McElhinney (James) v Normand [1996] SLT 238 at 241.
[26] Ibid. It was
stated by Lord Sutherland: “it appears from his reply under caution that
he was aware that there was a warrant
in existence for Smith.” Thus, it
seems as if the Court accepted that the appellant must have had knowledge of the
warrant.
[27] R
v Todd [1957] S.A.S.R 305
(SC)
[28] At 276
per Mason CJ and at 302 per McHugh
J.
[29] At
328.
[30] As acknowledged by this Court in Meyrick, an attempt to interfere with the execution of a search warrant could fall within the scope of s117(e) on the assumption that the person appreciated there was a judicial process which resulted in the making of a court order: see above at [51].
[31] In
Practice Note – Police Questioning (s 30(6) of the Evidence Act
2006) [2007] 3 NZLR 297 it is stated that a member of the police
investigating an offence may ask questions of any person from whom it
is thought
that useful information may be obtained, whether or not that person is a
suspect, but must not suggest that it is compulsory
for the person questioned to
answer.
[32] We
are assuming such an arrest to be on proper
grounds.
[33] In
this case a charge under s 71 of the Crimes Act may be more
appropriate.
[34] We concentrate here on individuals assisting another to avoid a contemplated prosecution given that this is the context of this case.
[35] We note that she was only shown a copy of the warrant on 11 January. Before then she had allegedly just been told about its existence.
[36] There was no evidence Ms McMahon considered Brandon guilty of the serious assault. Indeed the evidence was to the contrary and, in the event, Brandon was acquitted.
[37] The Judge
also outlined that trial counsel had reminded the jury of the evidence of
Ms McMahon where she contended that on 6 December
she had been
informed by Detective Constable Westcott that Brandon had nothing to do with the
serious assault, and her evidence that
she later mentioned this to the same
officer and at no time was that claim challenged by the police.
[38] See above at
[13].
[39] Or indeed as to whether the police did wish to arrest Brandon. We reiterate that as at 10 January Ms McMahon has not been shown the warrant.
[40] There was evidence before the Court that Ms McMahon had contacted various counsel to try to set up a safe environment for police questioning: see at [32] above. Ms McMahon wished to introduce on appeal more evidence on alleged rough treatment of Brandon by the police on an earlier occasion and his willingness on this occasion to surrender to the Court but not the police. These matters were before Judge Roberts at sentencing and to a limited extent accepted by him.
[41] There were a
number of other grounds of appeal but it is not necessary to deal with them
given this
conclusion.
[42]
Reliance was placed on s 5 of the Interpretation Act 1999 with regard to this
submission.
[43]
R v Thomson (1992) 9 CRNZ 108 (HC) at
109.
[44] R v
Coneybear [1965] NZCA 19; [1966] NZLR 52
(CA).
[45]
Kane at 63; Coneybear at 52.
[46] See above at
0.
[47] In fact
Brandon’s movements were also legitimately restricted because he was on
bail for the assault on the young lifeguard.
However, any assistance afforded
by Ms McMahon to the breach of bail by Brandon was not the basis of the charge
against her.
[48]
See above at 0.
[49]
Set out above at [36].
[50]
Set out above at [36].
[51]
At 56.
[52] R
v Z [2008] NZCA 246, [2008] 3 NZLR 342 at
[36].
[53] At
56.
[54] See above
at 0.
[55]
Laws of New Zealand (looseleaf ed) at
[44].
[56] See
above at [47].
[57]
R v Rogerson [1992] HCA 25; (1992) 174 CLR
268.
[58] R v
Wijesinha [1995] 3 SCR
422.
[59] R v
Rafique [1993] QB 843
(CA).
[60] See
above at [61]–[62].
[61]
See above at 0
above.
[62] See
above at 0.
[63]
R v Spratt [2007] 3 NZLR 810
(CA).
[64] At
[21].
[65] R v
Rafique [1993] QB 843
(CA).
[66] At
[22].
[67]
McElhinney (James) v Normand [1996] SLT 238
(HCJ).
[68] R v
Taffs [1991] 1 NZLR 69 (CA) at
71.
[69] At
73 – 74.
[70]
At 73.
[71] See
above at 0.
[72]
See above at [61] - [62].
[73]
See above at [60].
[74] These principles emerge from the discussion above and thus are not intended to provide a complete summary.
[75]
Rogerson at 280. See discussion above at [46]. For general discussion see
Glanville Williams “Evading Justice” [1975] Crim LR
430.
[76] This is
why s 117(e) uses the term “attempting”.
[77] This principle comes from the case of R v Machin [1980] 71 Cr App R 66 (CA), in which it was noted that the use of the word “attempt” is convenient for use in a 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. Machin was referred to by McHugh J in Rogerson at 298.
[78] We accept the
view of the majority in Rogerson that it is enough that judicial
proceedings were in contemplation (as against for a particular identifiable
offence): at 278 per
Mason CK, at 281 per Brennan and Toohey JJ, at 294 per
Deane J.
[79]
Kane at 63. See above at [53].
[80]
Meyrick at [41]. See above at [44].
[81]
Todd at 302, McElhinney at 241. See above at [57]–[58].
[82]
Meyrick at [42]. See above at [50].
[83]
Spratt at [21]. See above at [79].
[84]
R v Taffs [1991] 1 NZLR 69 (CA) at 73.
[85] The bail conditions meant that she was unable to travel to the US, her home country, during this period.
[86] See
generally, Palmer v R CA373/02, 9 December 2002 at [22] and R v Kino
and Mete [1997] 3 NZLR 24 (CA) at
29.
[87] We assume
for these purposes that the charge had been made
out.
[88] See
above at [42] – [43].
[89]
R v Hauraki HC Hamilton CRI-2006-419-167, 6 November 2007.
[90] We are not necessarily to be taken as endorsing the level of sentence in Hauraki as we did not hear full argument on sentence levels for this type of offending. We mention it only as having some similarities to the allegations in this case.
[91] Section 23(1) of the Bill of Rights provides that everyone who is arrested or who is detained under any enactment shall be informed at the time of the arrest or detention of the reason for it and shall have the right to consult and instruct a lawyer without delay and to be informed of that right and shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
[92] Section 24(a)
of the Bill of Rights states that everyone who is charged with an offence shall
be informed promptly and in detail
of the nature and cause of the
charge.
[93] See
above at [63].
[94] We note she was, however, shown the warrant on 11 January although she professed not to have understood it. She did, however, understand it was a Court document – see at [22] above.
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