R v Michael Miras Scc [1986] ACTSC 84 (12 September 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. MICHAEL MIRAS
S.C.C. No. 32 of 1986
S.C.C. No. 40 of 1986
Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly C.J.(1)

CATCHWORDS

Criminal Law - Indictment charging count of assault and count under s. 37(a) Crimes Act (Cwth) 1914 - Whether in circumstances counts might be tried jointly - Whether offer of benefit to witness summoned to give evidence to dissuade him from attending constitutes offence under s. 37(a) - Meaning of "withhold true testimony" considered.

Crimes Act (Cwth) 1914 - ss. 37 and 40

R. v. Russell (1932) QWN 40

R. v. Assim (1966) 2 QB 249

R. v. McCarthy (1984) 14 ACrim R 155

Kerridge v. Simmonds [1906] HCA 66; (1906) 4 CLR 253

Thorne v. Motor Trade Association (1937) AC 797

Cort v. The Ambergate Railway Company (1851) 17 QB 127: 117 ER 1229.

R. v. Watt (1905) 20 CCC 852.

HEARING

CANBERRA
12:9:1986

DECISION

On 4 August 1986 Michael Miras was charged on indictment on two counts. The first count charged that on 3 July 1985 he assaulted Thomas Charles Fisher. I set out the second count in the words used in the indictment-

"That MICHAEL MIRAS on the twenty seventh day

of April 1986 at Canberra in the Australian
Capital Territory did offer to give a
benefit, namely, the payment of money and
legal costs to THOMAS CHARLES FISHER upon the
understanding that the said THOMAS CHARLES
FISHER, a person to be called as a witness in
a judicial proceeding, namely, the committal
for trial of MICHAEL MIRAS on a charge that
he on the third day of July 1985 at Canberra
in the Australian Capital Territory did
assault THOMAS CHARLES FISHER, should
withhold true testimony."

2. The second count was laid under s. 37(a) of the Crimes Act 1914 (Commonwealth) (the Act). Section 37 of the Act is as follows:-

"37. Any person who -
(a) gives, confers, or procures, or promises
or offers to give, confer, procure or
attempt to procure, any property or
benefit of any kind to, upon, or for,
any person, upon any agreement or
understanding that any person called or
to be called as a witness in any
judicial proceeding shall give false
testimony or withhold true testimony; or
(b) attempts by any means to induce a person
called or to be called as a witness in
any judicial proceeding to give false
testimony, or to withhold true
testimony; or
(c) asks, receives, or obtains, or agrees or
attempts to receive or obtain, any
property or benefit of any kind for
himself, or any other person, upon any
agreement or understanding that any
person shall as a witness in any
judicial proceeding give false testimony
or withhold true testimony,
shall be guilty of an indictable offence.

3. Penalty: Imprisonment for five years." It is also convenient to set out the terms of s.40 of the Act. It reads:-

"40. A person who wilfully prevents or
wilfully endeavours to prevent another person
who has been summoned to attend as a witness
in a judicial proceeding from attending as a
witness or from producing anything in
evidence pursuant to the subpoena or summons
shall be guilty of an offence.

Penalty: Imprisonment for one year."

4. Immediately after the indictment was presented counsel for the accused said that objection was taken to the two counts being heard together. The accused was arraigned and pleaded not guilty to both counts. Thereafter the objection was argued.

5. Counsel for the Crown took the course of seeking to tender a typescript of the opening which he proposed to make to the jury and a transcript of a recording of a conversation which had taken place between the accused and the alleged victim of the assault. Counsel for the accused agreed to that course.

6. According to the opening, it was alleged that the accused had assaulted Fisher by presenting a pistol against his body and against or near his forehead and had subsequently fired the pistol twice in the air.

7. In essence the case on the second count was that the accused had telephoned Fisher to arrange an appointment. Fisher had advised the police of the proposed appointment and the police had installed a recording device at the place appointed. The appointment was fixed for the afternoon of Sunday, 27 April 1986 at Fisher's shop at Fyshwick. The hearing of the committal proceedings against the accused in respect of the assault had been fixed for the following Tuesday, 29 April. The hearing commenced on that day when Fisher gave evidence.

8. According to the transcript of the recording which was tendered the accused at first apologised and said that he had nothing against Fisher, that he was terribly sorry for everything that had happened and asked if Fisher could help in any way. He said that any such help would be very much appreciated because he had lost his father, his mother was sick and he had nobody to look after the shop. The conversation proceeded with the accused being recorded as having said, inter alia,

". . . if you don't come at all, what's the
fine on you? . . . I'm in a big troubles, you
know."

Fisher is recorded as having told the accused that he had been summoned to appear at Court. The effect of the conversation as recorded is that the accused offered to pay any fine and legal costs which Fisher might be required to pay as a result of his failure to attend upon the summons. The only understanding which the accused could be said to have sought was that Fisher should not attend as a witness. There was no suggestion in the evidence that he sought to tamper with the witness in the sense that he sought to have him fabricate evidence or, when giving testimony, to withhold evidence that was true.

9. The submissions on the objection to the indictment proceeded on the basis that a trial of the two counts at once would be unfairly prejudicial to the accused. Counsel for the accused submitted that -

"The evidence in one count must never be used
to prove the charge in the other count in the
indictment."

In making this submission he was plainly referring to R. v. Thomas (1957) SR (NSW) 292 and to a passage in the judgment of Owen J where, at p 294, he said:-

". . . but the two counts having been included,
the learned trial judge did not in his
summing-up tell the jury that each count must
be considered separately and that evidence to
support one count could not be used to
support the other, nor did he attempt to
explain to the jury what parts of the
evidence related to the one count and what
parts of the evidence related to the other."

The court was there dealing with an indictment charging two separate offences of breaking and entering dwelling-houses and stealing therein and the dictum just quoted is, in my respectful opinion, to be read against that background. I do not think that Owen J was there saying that evidence led primarily in respect of a second count in an indictment which is also relevant and admissible in respect of a first count may not be used to support both counts. He was, I think, simply emphasising that the evidence in respect of each offence was to be considered separately.

10. The submissions were presented on the assumption that the accused's actions constituted an offer to give a benefit to the witness Fisher upon the understanding that he, as a person to be called as a witness in the committal proceedings, should withhold true testimony, the withholding to take place by virtue of his very absence. My attention was not at that point directed to s.40 of the Act.

11. The learned Crown Prosecutor pointed out that in R. v. Russell (1932) QWN 40 Henchman J had ruled on a charge brought under s.127(1) of the Queensland Criminal Code, a section couched in terms identical for practical purposes with those of s.37(a) of the Act. Evidence was given that the accused had approached a witness, the victim of a theft, and said to him, "Don't go on with it and I'll make up the sixteen shillings". At the conclusion of the Crown case counsel for the prisoner submitted that there was no proof of an attempt to induce the witness to withhold true testimony. The Crown Prosecutor said that the attempt to persuade the witness to withhold all evidence necessarily established an attempt to persuade him to withhold testimony which was true. Henchman J held that the Crown, in order to succeed on such a charge, must prove that the testimony to be withheld was true testimony and directed the jury to return a verdict of not guilty. I respectfully agree with that view.

12. It seemed to me, therefore, that before there could be a conviction on the second count it would be necessary for the jury to be satisfied beyond reasonable doubt that any testimony which was to be withheld by Fisher as a result of the suggested failure to attend so that he might be called as a witness was true testimony. This, in my view, necessarily involved proof that the facts alleged in support of the first count were true.

13. Accordingly, I considered that there was such a link between the two counts and that the convenience and justice of dealing with them both together was so great as amply to fulfil the appropriate requirements for the trial of the two matters at once. See R. v. Assim (1966) 2 QB 249 at p 261 and R. v. McCarthy (1984) 14 ACrim R 155 at pp 159-160.

14. The joinder seemed to me to be all the more desirable since, had the accused been acquitted on the first count, that must plainly have affected the jury's consideration of the truth of the evidence to be given by the witness Fisher at the committal proceedings. I therefore overruled the objection.

15. Following an overnight adjournment which took place when my summing up was well advanced, counsel for the accused asked for a direction based on the proposition that "there is no objection to compromising a claim for private injury resulting from an act which amounts to an indictable offence provided that it is not a matter of public concern". Kerridge v. Simmonds [1906] HCA 66; (1906) 4 CLR 253 at p 258 per Griffith CJ. See also Thorne v. Motor Trade Association (1937) AC 797. During the course of his submissions, counsel for the accused made reference for the first time to s.40 of the Act, submitting that when read in conjunction with s.37 it made it plain that s.37 dealt with attempts to tamper with evidence by corruptly seeking an agreement or understanding that a witness called or to be called in a judicial proceeding should fabricate evidence or withhold true evidence, the withholding being of such a kind as to distort the truth of the rest of his evidence.

16. Whether s.40 is apt to deal with the circumstances in respect of the second count which the Crown alleged and which the evidence supported does not really matter. It may be that the meaning of the word "prevent" is wide enough to encompass the dissuasion of which evidence was given. See Cort v. The Ambergate Railway Company (1851) 17 QB 127 at pp 145, 146: 117 ER 1229 at p 1236. It is unnecessary to express a concluded opinion. If it is, the accused had, according to the evidence if accepted, wilfully tried to prevent Fisher from attending as a witness when he had been summoned so to attend.

17. But the offence created by s.40 of the Act seems to me to be quite different in kind from that created by s.37. Section 37 is concerned with the giving of "false testimony or the withholding of true testimony". I think that the phrase "withhold true testimony" must be read ejusdem generis with the phrase "give false testimony". This necessarily involves an element of fabrication in relation to the false testimony or the corruption or distortion of testimony by omitting parts that are true. That being the case, it seemed that there was no evidence that there had been any attempt by the accused to prevail upon Fisher to give false testimony or to withhold true testimony with a view to corrupting his evidence. It seemed to me to be essential to the charge to show that the attempt was made in relation to the testimony to be given by a witness when called or to be called. A mere attempt to prevent him from giving testimony at all did not amount to the offence charged in s.37(a).

18. Counsel also directed attention to the fact that the penalties which may be imposed in respect of ss.37 and 40 differ markedly, indicating, he said, that the legislature by s.37 was attempting to guard against the much greater evil, corruption of testimony, compared with mere prevention of a witness summoned to give evidence from attending to give it. The submission may well have been correct but it was unnecessary to rule on it.

19. There being, in my opinion, no evidence that the accused had sought to have false evidence given or that true testimony should, in the relevant sense, be withheld, I directed the jury that they should return a verdict of not quilty in respect of the second count.

20. The question then arose as to what use should be made of the evidence led primarily in respect of the second count. That evidence could, in my opinion, have been taken to indicate that the accused considered himself guilty of the first count and hence was admissible as going to proof of his guilt on that count. See R. v. Watt (1905) 20 CCC 852. However, it had been led primarily, as I have said, in respect of the second count which in the result proved to have been improperly joined with the first count. It seemed to me that the probability that the jury might not be able to deal with that evidence fairly was so high that I ought to instruct it not to take the evidence into account in respect of the first count. The accused had tendered an explanation to Fisher for the proposition which he made, an explanation which was not necessarily consistent with his being guilty of the charge of assault. Of course, the weight to be accorded that explanation would ordinarily have been a matter for the jury.

21. However, in all the circumstances, that instruction seemed to be a proper exercise of the general discretion to reject evidence in criminal cases even though the evidence was legally admissible.