The High Court has allowed an appeal against the decision of the New South Wales Court of Appeal relating to perverting the course of justice and making false statements under oath. Beckett was committed for trial on indictment in the NSW District Court on a charge of perverting the course of justice (s 319 of the Crimes Act 1900 (NSW)) and on an alternative charge of making a false statement under oath (s 330) by allegedly providing Office of State Revenue officers cheques with doctored issue dates and making false statements about those checks. The District Court dismissed Beckett’s motions to have the indictment quashed, for a permanent stay of prosecution as an abuse of process, and to have the record of the interview, notes and other records ruled inadmissible. The NSWCA allowed the appeal in part, ordering that the charge of perverting the course of justice be permanently stayed but otherwise dismissing the appeal. The Court of Appeal held that perverting the course of justice for the purposes of the substantive offence (rather than the common law misdemeanour) requires that the jurisdiction of a court or tribunal first be invoked: because the alleged conduct, even if proved, occurred before such an invocation, the count should be permanently stayed (see at [103]–[111]).

The High Court unanimously allowed the appeal. The joint judgment (French CJ, Kiefel, Bell and Keane JJ) held that s 319 does extend to preventing contemplated proceedings, and cannot be confined to an intention to pervert existing proceedings. The joint judges rejected the respondent’s argument that a ‘universal principle’ from R v Murphy [1985] HCA 50 — that the meaning of ‘the course of justice’ is to be understood with reference to the technical meaning the phrase had under the common law — should be accepted here, and would require that a course of justice ‘have been embarked upon’ (see at [30]): the Court in Murphy did not announce a ‘universal principle’ with respect to the scope of liability for perversion of the course of justice offences, but rather clearly affirmed that a person could be guilty of an offence of that kind even though no proceedings had been instituted (see at [33]–[34]). The matter turned, in any case, on the constructing of s 319 and ‘intention to pervert’ (at [35]–[36]):

The concept that a person may pervert a course of justice by “preventing it” is eloquent of a legislative intention that liability extend to acts done with the proscribed intention in relation to contemplated proceedings. As the appellant correctly submits, liability for the offence created by s 319 hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice. Once this is acknowledged, there is no reason to confine the provision’s reach to conduct that is engaged in with the intention of perverting existing proceedings.

Consequently, the Court of Appeal erred in concluding that s 319 was to be confined to acts or omissions in relation to existing proceedings. Nettle J substantially agreed with the reasons in the joint judgment, but disagreed on the elements of the offence in s 319. Nettle J suggested that in addition, a third element ‘that the act or omission had a tendency to pervert the course of justice’ was required by the common law origins of the section (see especially at [61]–[63]).