The Queen v David Brian Claxton [2000] ACTSC 93 (17 October 2000)

Last Updated: 18 January 2001

THE QUEEN v DAVID BRIAN CLAXTON [2000] ACTSC 93 (17 October 2000)

CATCHWORDS

CRIMINAL LAW - trial by Judge alone - offence of attempt to pervert the course of justice - weight and reliability of evidence not sufficient to support a conviction - verdict of not guilty entered at close of Crown case.

Supreme Court Act 1933, s 68C

R v Prasad (1979) 2 A Crim R 45

Doney v R [1990] HCA 51; (1990) 171 CLR 207

No. SCC 90 of 1998

Judge: Gray J

Supreme Court of the ACT

Date: 17 October 2000

IN THE SUPREME COURT OF THE )

) No. SCC 90 of 1998

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

against

DAVID BRIAN CLAXTON

ORDER

Judge: Gray J

Date: 17 October 2000

Place: Canberra

THE COURT FINDS THAT the accused is not guilty of the offence that between the 15^th day of January 1998 and the 18^th day of February 1998 at Canberra in the Australian Capital Territory he attempted to pervert the course of justice.

1. The accused was arraigned before me on one count that between the 15^th day of January 1998 and the 18^th day of February 1998 at Canberra in the Australian Capital Territory he attempted to pervert the course of justice.

2. Upon his arraignment, he pleaded not guilty.

3. He elected to be tried by Judge alone. Accordingly, I am bound by the terms of s 68C of the Supreme Court Act 1933 which is in the following terms:

"1. A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.

2. The judgment in criminal proceedings tried by a Judge alone shall include the principles of law applied by the Judge and the findings of fact on which the Judge relied.

3. In criminal proceedings tried by a Judge alone, if a law of the Territory would otherwise require a warning to be given to a jury in such proceedings, the Judge shall take the warning into account in considering his or her verdict."

4. The offence charged in this matter is that of attempting to pervert the course of justice. The offence consists in the doing of an act which has the tendency to pervert the course of justice with an intent to pervert the course of justice.

5. In this matter, the Crown relied upon Mr Claxton's role as a solicitor in preparing a statement on behalf of his client, Mr Hinton, the victim of a "disciplinary" shooting by members of the North Canberra Chapter of the Rebels Outlaw Motorcycle Club.

6. That statement was designed to be used in a bail application in respect of those charged in connection with the shooting. Paragraph 6 of that statement, which is Exhibit C, states:

"I have no concerns for my safety and that situation would not change if the three men were granted bail. I've known one of the persons for quite some time and we have never had any disputes."

7. The Crown alleged that the statement was false, that it had a tendency to pervert the course of justice and that it was intended, by the use of that statement, to achieve that end. The Crown relied upon the evidence of Mr Finnigan with whom Mr Claxton had a conversation at the Belconnen Remand Centre, and relied on inferences from that conversation as to Mr Claxton's intentions in preparing the statement. That conversation was tape recorded. It is contained in Exhibit B and it was uncontested.

8. The Crown also relied on a taped conversation which is contained in Exhibit F between Mr Hinton and Mr Claxton discussing the content of the statement and, in particular, on Mr Claxton's concern for Mr Hinton to, and I quote, "Watch ya back". That conversation was also uncontested. In addition, Mr Leech, the Federal Police Officer called by the Crown to prove the latter conversation, also deposed in cross-examination in respect of a newspaper article (which article is Exhibit 1) which alleged that Mr Hinton had told the police that he feared for his life as the information for that article not being provided from any Police source and indeed that the Police had worked towards the retraction of that article.

9. At the conclusion of this unchallenged evidence, Mr Bellanto QC, for Mr Claxton, submitted no case to answer. I ruled that there was a case to answer. Mr Bellanto then sought that I give myself what is called a Prasad direction based upon R v Prasad (1979) 2 A Crim R 45. The substance of that direction was that sitting as the jury, I should invite myself to consider, without the trial proceeding further, whether the evidence that I had heard so far was insufficient to justify a conviction; and to bring in a verdict of not guilty.

10. That has been expressed in terms itself in R v Prasad (supra) as:

"A test of evidence so lacking in weight and reliability that no reasonable tribunal could safely convict on it."

11. It is also the sort of test that has been referred to in Doney v R [1990] HCA 51; (1990) 171 CLR 207 by Dean, Dawson, Toohey, Gaudron and McHugh JJ at 215 as:

"A verdict of not guilty may be directed only if there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty."

12. As I understand the submissions of Mr King for the Crown, these tests are remarkably similar but in any event his view is that the weight and reliability of the evidence is such that a reasonable tribunal could safely convict on it and that if I applied that test, I would not permit the Prasad application to succeed.

13. In my view, however, there are evidentiary deficiencies in relation to the Crown case. Those evidentiary deficiencies are to be found in both the evidence called to support the act which is said to be the attempt to pervert the course of justice, and that which bears upon Mr Claxton's intention to do so.

14. The Crown case, and I take this from the transcript at page 3, was that the statement to be given by Mr Hinton and to be put forward on the bail application was a false proposition, that it would wrongly assist the obtaining of bail and, further, that it was designed to distract the Police from their prosecution of the Rebel members, although I add that there has been no evidence given as to the last aspect of this matter.

15. There is no direct evidence of Mr Hinton's state of mind concerning his safety. I observe as a relevant factor that Mr Hinton was not called by the Crown and that the evidence relied upon by the Crown was circumstantial, relying as it did on recorded conversations that Mr Claxton had with the witness Finnigan and with Mr Hinton. As such, the evidence gives rise to competing inferences, not all of which, in my view, are consistent with guilt. The Crown urged that the background evidence, which is set out in Exhibit A, supports the view that Mr Hinton would have every reason to fear for his safety. However, the background evidence is also, at least, open to the inference that having been punished, Mr Hinton now had no reason to fear for his safety.

16. From the recorded conversations, the Crown sought to draw other inferences concerning Mr Claxton's belief. However, the inferences that they sought to draw as to the fact that Mr Claxton was well aware that Mr Hinton did fear for his safety are elliptical and possibly ambiguous. That comment applies also to the "watch ya back" statements that were made by Mr Claxton in his conversation with Mr Hinton. Importantly, they do not deal with Mr Hinton's state of mind at the time he signed the statement.

17. Further, I have carefully considered the remand centre conversation and apart from Mr Finnigan's insistence that he does not intend to do time and Mr Claxton's placatory comments in respect of that, there is little support for the intent necessary on his part to show that he was deliberately concocting a false statement for the purposes alleged by the Crown. It may also be said, indeed, that paragraph 6 of the statement in Exhibit C may have been, at the time the statement was signed, a true statement if by reason of the arrangement come to between Mr Claxton and Mr Finnigan, Mr Hinton no longer entertained any concerns for his safety.

18. I must say that the participation in such an arrangement does not reflect creditably on the performance by Mr Claxton of his professional responsibilities, but in my view it does not, of itself, amount to an attempt to pervert the course of justice.

19. In my opinion, taken at its highest, the evidence is deficient and lacks the weight and reliability to draw the inferences that the Crown is required to make out as to the elements of the offence, as to the act and the intent required and so as to sustain a verdict of guilty.

20. I so direct myself as the trier of fact. In respect of the offence with which the accused stands charged, that of attempting to pervert the course of justice, I enter a verdict of not guilty.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 18 October 2000

Counsel for the Crown: Mr M King

Solicitor for the Crown: Director of Public Prosecutions

Counsel for the Accused: Mr T Bellanto, QC with Mr G Brady

Solicitor for the Accused: pappas j - attorney

Date of hearing: 16, 17 October 2000

Date of judgment: 17 October 2000