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Offences against justice_in public office (19Mb printed to pdf as at 17.12.2024)
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Offences against justice/in public office
[20-120] Introduction
Last reviewed: November 2024
Part 7 of the Crimes Act 1900 is headed “Public justice offences”. Division 2 deals broadly with interference in the administration of justice. Division 3 provides for offences of interfering with participants in the criminal justice process. Division 4 provides for offences of perjury and other false acts.
The seriousness with which the community regards offences against justice can be gauged from the Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, Hansard, 17 May 1990) which inserted Pt 7 into the Crimes Act: Marinellis v R [2006] NSWCCA 307 at [10]; Richards v R [2006] NSWCCA 262 at [68].
The then Attorney-General, the Hon John Dowd MLA said at p 3691:
Offences that damage the administration of justice strike at the very heart of our judicial system. It is fundamentally important that confidence is maintained in our system of justice, and to this end must be protected from attack. Those who interfere with the course of justice must be subject to severe penalties. Not only do offences concerning the administration of justice affect individuals, but the community as a whole has an interest in ensuring that justice is properly done.
Other offences involving the administration of justice are found in the Crimes Act 1914 (Cth), Pt III, Jury Act 1977, Independent Commission Against Corruption Act 1988 and Police Act 1990. There are also residual common law offences including for bribery and contempt.
[20-130] Purposes of punishment — general deterrence and denunciation
Section 3A Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which a sentence may be imposed, including s 3A(b): “to prevent crime by deterring the offender and other persons from committing similar offences”; and s 3A(f) “to denounce the conduct of the offender”.
The Court of Criminal Appeal has consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; R v Taouk (1992) 65 A Crim R 387.
The purpose of an appropriate sentence for an offence such as perjury is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will be visited with serious punishment: R v Bulliman (unrep, 25/2/93, NSWCCA); R v Aristodemou (unrep, 30/6/94, NSWCCA).
In Harrigan v R [2005] NSWCCA 449 at [47], the court endorsed the statement of McClellan J (as he then was) in the two-judge bench decision of R v Giang [2001] NSWCCA 276. In relation to an act intending to pervert the course of justice, McClellan J stated at [21]:
In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action.
The court has also emphasised the importance of general deterrence in relation to bribery offences: R v Pangallo (1991) 56 A Crim R 441 at 443.
The court has also held that denunciation is to be given greater importance in sentencing for an offence against justice committed by those directly involved in the administration of justice: R v Nguyen [2004] NSWCCA 332 at [43].
[20-140] Offences against justice committed by public officials
Where an offence against justice is committed by a public official, the Court of Criminal Appeal has consistently held that the offender’s position is generally a significant matter in aggravation. In Retsos v R [2006] NSWCCA 85 at [31], Sully J (with Howie and Simpson JJ agreeing) stated:
Any offence of, or ancillary to, corrupt conduct on the part of any public official should be denounced plainly and punished condignly.
In R v Nguyen [2004] NSWCCA 332 at [38], Spigelman CJ (with Barr and Hoeben JJ agreeing) explained: “The fact that the offence of perverting the course of justice is committed by a person directly involved in the administration of justice is a relevant consideration, even if the conduct does not occur in the course of that person’s official duty”. See also R v Chapman (unrep, 21/5/98, NSWCCA).
Denunciation is to be given greater importance in sentencing for an offence of attempting to pervert the course of justice committed by someone involved in the justice system: R v Nguyen at [43].
Breaching a position of trust is a matter of aggravation: see generally Objective factors at common law at [10-060].
Police officers
In R v Nguyen [2004] NSWCCA 332, Spigelman CJ at CL stated at [39]:
There is authority in this Court to the effect that it is relevant that a person who commits an offence with respect to the administration of justice is a police officer.
Spigelman CJ quoted from R v Chapman (unrep, 21/5/98, NSWCCA), where Simpson J said:
Those concerned in the administration of the law must be taken to appreciate the supreme importance of truthful evidence being given in judicial proceedings. The respondent did not cease being a police officer, or carrying out the duties and responsibilities, and having the privileges of that office, because these events arose out of recreational and not professional activities. He must be taken to have known, better than most, how important the curial procedure is, and with what respect it must be treated.
Earlier, in R v Nomchong (unrep, 10/4/97, NSWCCA), McInerney J (with Hunt CJ at CL and Sully J agreeing) stated:
The crime of bribery by a police officer, therefore, must be severely punished whenever detected. The police are in constant contact with members of the public and the opportunity for bribery is always great. Those circumstances themselves mean that the element of general deterrence is always a matter that must be kept very much in the forefront of the mind of a sentencing judge when a police officer is charged with an offence such as this. It is important to deter other police officers who may be inclined to similar conduct.
See also R v O’Mally [2005] NSWCCA 166 at [15].
R v Nomchong involved a senior sergeant attempting to corrupt a junior officer under his supervision. McInerney J endorsed the trial judge’s statement that:
The inevitable consequence of the conviction of a police officer for the offence of attempting to pervert the course of justice would in most cases be a fulltime custodial sentence.
In R v Hilder (unrep, 13/5/93, NSWCCA) the police officer was convicted of “seriously corrupt conduct … in the performance of his duties”. Wood J (as he then was) concluded: “That kind of conduct must attract a significant custodial sentence …” However, Wood J noted that “[i]t remains, of course, appropriate in any case involving a person holding public office to take into account the loss of reputation, and employment and also where appropriate, the loss of a pension or superannuation benefits”.
The rank of the police officer, and the corruption of other officers, is relevant to the seriousness of the offence: R v Irwin [1999] NSWCCA 361 at [47]; R v Nomchong.
In the context of corruption offences, less weight can be given to evidence of good character as a police officer: R v Chad (unrep, 13/5/97, NSWCCA); see also R v Farquhar (unrep, 29/5/85, NSWCCA) in relation to judicial officers.