Jamieson & Brugmans v R [1993] HCA 48; (1993) 177 CLR 574; (1993) 67 A Crim R 150 (8 September 1993)

HIGH COURT OF AUSTRALIA

JAMIESON and BRUGMANS v. THE QUEEN [1993] HCA 48; (1993) 177 CLR 574
F.C. 93/036
Number of pages - 17
[1993] HCA 48; (1993) 67 A Crim R 150

Criminal Law

HIGH COURT OF AUSTRALIA
DEANE(1), DAWSON(1), TOOHEY(2), GAUDRON(3) AND McHUGH(2) JJ

CATCHWORDS

Criminal Law - Attempt to obtain property by deception - Service of statement of claim in action for damages for negligence - Indictment alleging that statement contained false assertions and that service constituted attempt to obtain property by deception - Immunity in respect of words used in judicial proceedings - Validity of indictment - Crimes Act 1900 (NSW), ss. 178BA(1), 344A(1).

HEARING

1993, March 2; September 8. 8:9:1993

ORDER

Appeal allowed.

Set aside the order of the Court of Criminal Appeal of the Supreme Court of New Soth Wales and in lieu thereof order that the appeal to that Court be allowed and the indictment quashed.

DECISION

DEANE AND DAWSON JJ The facts of these appeals fall within a small compass. They are set out, together with the relevant statutory provisions, in the joint judgment of Toohey and McHugh JJ and the judgment of Gaudron J. We shall refrain from unnecessary repetition of them.

2. The argument on the appeal left us with the impression that the efforts of the parties to isolate and define the common question involved in the two cases may have resulted in a situation where the act of serving the statement of claim, which the Crown exclusively identifies as the actus reus of the alleged offence, may have been unrealistically detached from the context of relevant associated conduct on the part of one or both of the appellants. In particular, it emerged in the course of argument that the civil action brought by Ms Jamieson was settled by the Government Insurance Office ("the G.I.O.") before the institution of the criminal proceedings. Nonetheless, in a context where the Crown has not sought to resile from the isolation of the service of the statement of claim from any other dealings which the particular appellant may have had with the G.I.O. and where the courts below have dealt with the cases on the basis on which the parties have been content to argue them, it would be inappropriate for this Court to approach the appeals otherwise than on the same basis.

3. The sole question in each appeal, therefore, can be formulated in abstract terms. It is whether the mere service upon a defendant, by (or with the authority of) the plaintiff, of an unverified statement of claim filed in an action for damages for personal injury can of itself constitute the actus reus of the criminal offence of attempting to obtain money by deception if, to the knowledge of the plaintiff, the statement of claim contains a false material assertion. Objection may, perhaps, be taken to that abstract formulation of the legal issue on the ground that an assertion that a plaintiff was a passenger in the motor vehicle involved in the accident when she was in fact the driver might well be regarded as more than merely "material". However, regardless of whether the intentionally false assertion is described as "material", "critically important" or "fundamental", the answer to the question is the same. It is that, in the absence of contrary provision in some applicable statutory instrument or rule of court (and none has been relied upon in these appeals), the mere service upon a defendant of an unverified statement of claim does not, at least in so far as criminal liability is concerned, of itself constitute an express or implied positive representation by the plaintiff that the individual allegations of fact or of law which the statement of claim contains are objectively true or correct. Indeed, to characterize the factual assertions in a plaintiff's unverified pleading as positive representations of the truth of their content would be to misunderstand or ignore the traditional nature and function of a declaration, statement of claim or bill. The traditional nature of such an unverified pleading was not that of a representation or warranty of the objective accuracy of the assertions of fact which it contained. It was that of a written identification and communication of the extent of the plaintiff's claim ((1) See, e.g., Philipps v. Philipps (1878) 4 QBD 127, at p 139; Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liq.) [1916] HCA 81; (1916) 22 CLR 490, at p 517; Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658, at p 664; Banque Commerciale S.A en Liquidation v. Akhil Holdings Ltd. [1990] HCA 11; (1990) 169 CLR 279, at pp 286, 293; Laws v. Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, at pp 85-86.). Its traditional function was not an evidentiary one. It was to identify the issues of fact which would, in the absence of admissions, arise for determination at the trial by defining the outer limits within which the plaintiff's case would be confined ((2) See, e.g., Thorp v. Holdsworth (1876) 3 Ch D 637, at p 639; Esso Petroleum Co. Ltd. v. Southport Corporation (1956) AC 218, at p 241; Farrell v. Secretary of State for Defence (1980) 1 WLR 172, at p 180; Dare v. Pulham (1982) 148 CLR, at p 664; Banque Commerciale S.A en Liquidation v. Akhil Holdings Ltd. (1990) 169 CLR, at pp 286, 287-288, 302-303; Laws v. Australian Broadcasting Tribunal (1990) 170 CLR, at pp 85-86.). As Parke B. observed in Boileau v. Rutlin ((3) [1848] EngR 661; (1848) 2 Ex 665, at pp 680-681 [1848] EngR 661; (154 ER 657, at p 663); see, also, Buckmaster v. Meiklejohn [1853] EngR 415; [1853] EngR 415; (1853) 8 Ex 634, per Parke B. at p 637 [1853] EngR 415; (155 ER 1506, at p 1507).), in comments which were quoted with approval by Mason CJ and Brennan J in Laws v. Australian Broadcasting Tribunal ((4) [1990] HCA 31; (1990) 170 CLR 70, at p 85.):
"It would seem that (bills in equity), as well as pleadings
at common law, are not to be treated as positive allegations
of the truth of the facts therein, for all purposes, but
only as statements of the case of the party, to be admitted
or denied by the opposite side, and if denied to be proved,
and ultimately submitted for judicial decision.
...
(T)he statements of a party in a declaration or plea,
though, for the purposes of the cause, he is bound by those
that are material, and the evidence must be confined to them
upon an issue, ought not, it should seem, to be treated as
confessions of the truth of the facts stated".
unexaminable brothers-in-law Doe and Roe, or that of their distant cousin Goodtitle, to demonstrate that the development of both the common law and the jurisdiction of common law courts was, to a significant extent, dependent upon practices and fictions which were completely inconsistent with the proposition that the plaintiff in a common law action personally warranted, under pain of liability for fraud or misrepresentation, the accuracy of the various assertions of fact contained in her initiating process or pleading ((5) Thus, the plaintiff in quo minus in the Court of Exchequer made an incontestable but quite incorrect assertion of a debt owing to the Sovereign while the plaintiff in debt before the King's Bench based the action on the assertion of a trespass which had never occurred (see Blackstone, Commentaries on the Laws of England, (1768), bk 3, pp.45, 122-123). And note the commonly accepted practice of including alternative claims or assertions of fact in a declaration or other unverified pleading such as a statement of claim: see, e.g., Doonan v. Beacham [1953] HCA 38; [1953] HCA 38; (1953) 87 CLR 346, at pp 351-352; Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 110-111; Davy v. Garrett (1878) 7 Ch D 473, at p 489; Bullen and Leake's Pleading, 3rd ed. (1868), p 11; Jacob and Goldrein, Pleadings: Principles and Practice, (1990), pp.73, 112; but cf. Stephen, A Treatise on the Principles of Pleading in Civil Actions, 7th ed. (1866), pp.343-345.).

4. It follows that the mere service upon the G.I.O. as defendant of an unverified statement of claim containing an intentionally false assertion about the identity of the driver did not, of itself, constitute the making of a fraudulent representation sufficient to constitute the actus reus of the offence with which each appellant is charged. That is not to deny that there could be circumstances in which a statement of claim containing an incorrect assertion of fact constituted part of a course of conduct by a plaintiff or a third party involving the making of an intentionally false representation to the defendant or some other person. If, for example, the statement of claim was served or delivered in the context of a particular extraneous circumstance which gave rise to a collateral representation that the assertions, or a particular assertion, of fact contained in the document as delivered were, or was, objectively true, the delivery of the document could complete the making of a false positive representation of the truth of an incorrect assertion of fact contained in it which, subject to any question of immunity from criminal liability in respect of statements made in the ordinary course of judicial proceedings ((6) See below.), could be capable of constituting the actus reus of an offence of attempting dishonestly to obtain money by deception. Again, and subject to any question of such immunity from criminal liability, the service or delivery of such a statement of claim could constitute either part of the actus reus or an overt act in the commission of a variety of other criminal offences such as extortion or (depending on the circumstances) conspiracy to pervert the course of justice. In the present cases, however, the Crown's case against each appellant was and is confined to, and dependent upon, the proposition that "the causing of the statement of claim to be served upon the Government Insurance Office" of itself "amounted to the attempt" to commit the offence of obtaining money by deception.

5. Were it not for the matter which we now mention, we would allow each appeal on the ground that the mere causing of the unverified statement of claim containing the false assertion to be served upon the defendant G.I.O. in accordance with the requirements of court procedure did not of itself involve the making of a false representation which could constitute the actus reus of the alleged offence. However, while that ground was raised in the course of argument in this Court, it was apparently not raised in the courts below. Nor was it unequivocally relied upon for the appellants in this Court. In these circumstances, it is preferable that we base the negative answer to the question involved in the appeals on the ground which was placed in the forefront of the appellants' argument both in this Court and in the courts below. That ground is that the appellants were protected from criminal liability in respect of the incorrect assertion about the identity of the driver in the statement of claim by a prima facie immunity from criminal prosecution in respect of words used by a person, including a party, in the ordinary course of judicial proceedings.

6. The general proposition, enunciated by Lord Mansfield in R. v. Skinner ((7) (1772) Lofft 54, at p 56 [1763] EngR 35; (98 ER 529, at p 530).), that "neither party, witness, counsel, jury, or Judge, can be put to answer, civilly or criminally, for words spoken in office", must be qualified by a number of well-established exceptions. In particular, in so far as criminal proceedings are concerned, it must be qualified as regards substantive administration of justice offences (such as perjury, contempt of court and, depending upon the circumstances, perverting the course of justice) and offences associated therewith (such as conspiracy and attempt). Nonetheless, and notwithstanding the submissions of the Crown to the contrary, the proposition as so qualified remains valid as a general statement of common law principle.

7. It is true that, until recently, there has been a dearth of cases in which common law courts have been called upon to quash a criminal proceeding or conviction by application of the principle. That is not, however, surprising. It could scarcely be expected that prosecuting authorities would institute proceedings in disregard of a general proposition of common law principle which had been enunciated by Lord Mansfield and subsequently endorsed by strong authority including a unanimous Court of Exchequer Chamber constituted by ten judges ((8) See Dawkins v. Lord Rokeby (1873) LR 8 QB 255, per Kelly CB, Martin, Bramwell, Channell, Pigott and Cleasby BB., Byles, Keating, Brett and Grove JJ at p 264; affirmed, Dawkins v. Lord Rokeby (1875) LR 7 HL 744; and see, also, Kennedy v. Hilliard (1859) 10 ICLR 195, per Pigot CB at p 207; per Greene B. at p 222; Munster v. Lamb (1883) 11 QBD 588, per Brett MR at p 604; per Fry LJ at p 606; Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QB 431, per Lopes CJ at p 451; Hargreaves v. Bretherton (1959) 1 QB 45, per Lord Goddard CJ at p 51.). As Gaudron J points out in her judgment in the present appeals, that general principle is sustained by considerations of public policy. The oppressive burden of legal costs already constitutes a formidable deterrent to the citizen of ordinary means who seeks to invoke the jurisdiction of the courts against either an instrumentality of government or a financially powerful corporation or individual. It would constitute a further significant and most undesirable disincentive if, apart from the controls against abuse of process embodied in administration of justice offences and abuse of process proceedings, such a citizen was faced with the potential threat of being subjected to the burden of criminal proceedings, instituted or initiated by such a government instrumentality or financially powerful defendant, in respect of any words which she might use in the ordinary course of such proceedings. In that regard, it is relevant to note that, as the present proceedings against Ms Brugmans illustrate ((9) See, also, Reg. v. Beydoun (1990) 22 NSWLR. 256, at p 258.), the institution of such a criminal prosecution would not necessarily be delayed until after the determination of the civil proceedings.

8. In so far as it is relevant for the purposes of the present case, and subject to the above-mentioned qualifications and to any clear statutory provision to the contrary, Lord Mansfield's proposition prevents words "spoken in office" by a party or her lawyer from being made the basis of civil proceedings for defamation or misrepresentation or of criminal proceedings such as a prosecution for criminal defamation or criminal fraud. In the case of a party or her lawyer, the phrase "words spoken in office" at least encompasses "anything said ... in the ordinary course of any proceeding in a court of justice" ((10) Dawkins v. Lord Rokeby (1873) LR 8 QB, at p 264.), "although falsely and maliciously and without any reasonable or probable cause" ((11) ibid.). That being so, the general principle is applicable to assertions contained in a pleading such as a statement of claim, and it has long been recognized that the immunity attaching to words spoken in judicial proceedings extends to words written in the pleadings which are filed (and served) in the ordinary course of such proceedings ((12) See, e.g., Seaman v. Netherclift (1876) 1 CPD 540, per Lord Coleridge CJ and Brett J at pp 544-545.). Indeed, not surprisingly ((13) See ibid.), words spoken in pleadings provide some of the earliest instances of the application of the principle ((14) See, e.g., Buckley v. Wood [1591] EngR 1; (1591) 4 Co Rep 14b. (76 ER 888); Astley v. Younge [1759] EngR 83; (1759) 2 Burr 807 (97 ER 572); Johnson v. Evans [1799] EngR 242; (1799) 3 Esp 32 (170 ER 528).).

9. The primary submission advanced on behalf of the Crown on this aspect of the case was to the effect that the general proposition enunciated by Lord Mansfield in R. v. Skinner was simply inapplicable to criminal proceedings other than a prosecution for criminal defamation. Thus, it was contended that the fact that words were spoken by a witness in the course of giving relevant evidence in judicial proceedings in New South Wales would not preclude the witness being prosecuted for fraudulently attempting to obtain money if the elements of that offence were otherwise satisfied. It should be apparent from what has been written above that, in our view, that submission, which is in direct conflict with the words of Lord Mansfield in R. v. Skinner which were adopted by a unanimous Court of Exchequer Chamber in Dawkins v. Lord Rokeby, must be rejected.

10. Alternatively, the Crown relied on a distinction between the service of the statement of claim containing the particular assertion about the identity of the driver and the actual making of that assertion in the document. It would, however, be extraordinary and border on the absurd if a common law principle, sustained by the considerations of public policy to which reference has been made, was effective to confer prima facie immunity upon statements made in a pleading but provided no protection for the uttering of the statements in the course of the proceedings by service of the statement of claim in compliance with the procedural requirements of the court in which the proceedings were brought. In that regard, it could scarcely be suggested that the past cases in which the principle was applied to statements in pleadings would have been differently decided if the focus had been directed to service upon the defendant.

11. There remains for consideration the question whether there is to be discerned in any relevant statutory provision a legislative intent precluding or qualifying the application of the general principle to the offence of dishonestly obtaining money by deception or to the offence of attempting to commit that offence. The relevant statutory provisions are s.178BA (dealing with the substantive offence) and s.344A (dealing with an attempt) of the Crimes Act 1900 (N.S.W.). Examination of their terms discloses nothing at all which could properly be seen as evidencing a legislative intent to qualify or preclude the application of the relevant principle either generally in relation to "words spoken" in the course of judicial proceedings or particularly in relation to words contained in a statement of claim served upon a defendant in the course of such proceedings.

12. There are two further matters which should be mentioned. The first is that reliance was placed by the Crown upon the decision of the New South Wales Court of Criminal Appeal in Reg. v. Beydoun ((15) (1990) 22 NSWLR. 256.). In that case, an accused was charged with the offence of dishonestly attempting to obtain money by deception "by causing to be served upon the Government Insurance Office ... an Ordinary Statement of Claim seeking damages for injuries received whilst he was in a motor vehicle which was involved in a collision". The Crown alleged that Mr Beydoun had not, in fact, been in the motor vehicle at the time of the collision. The Court of Criminal Appeal upheld an appeal from an order of the trial judge quashing the indictment. In the reasons of the court, which are contained in the judgment of Hunt J, emphasis was placed upon the distinction between "statements made in the initiating process" upon which, it was said, the prosecution of the accused was not "directly" based and the making of the claim upon the G.I.O. upon which it was "directly" based ((16) ibid, at p.263.). With due respect, however, it appears to us that, in a case such as the present where all that is relied upon is the filing or serving of a statement of claim containing an incorrect assertion of fact, the distinction is unavailing in that, viewed realistically, the basis of the alleged offence lies either in the making of the incorrect assertion of fact which is contained in the pleading or in its communication by service in accordance with the procedural requirements of the relevant court. On either approach, the making or the communication of the assertion took place "in the ordinary course of (a) proceeding in a court of justice" ((17) Dawkins v. Lord Rokeby (1873) LR 8 QB, at p 264.) and was within the protection of the principle.

13. The other further matter is that reference should be made to the question whether the inclusion in a statement of claim of, or the service of a statement of claim containing, an incorrect assertion of fact could itself constitute part of a wider actus reus of the offence of dishonestly obtaining money by deception or of some other "non-administration of justice" offence. That question was not really pursued in argument in the present appeals and it is unnecessary that we express a concluded view in relation to it. We would, however, indicate that we are inclined to think that the general principle of the common law precluding liability would, where applicable, have the consequence that the inclusion of an incorrect assertion in a statement of claim or the service upon the defendant of the statement of claim could not of itself constitute part of the actual actus reus of a criminal offence. On the other hand, that common law principle would not preclude evidence of the inclusion of the incorrect assertion or of the service of the statement of claim being either evidence of, or an overt act in the commission of, some associated offence such as extortion or conspiracy. Nor would the principle preclude an incorrect assertion in a statement of claim being incorporated in the making of some collateral representation, such as an independent positive representation that a particular assertion in a statement of claim which had been served was absolutely accurate, which constituted the actus reus of an offence such as that with which each of the appellants in the present case is charged.

14. In each case, the appeal should be allowed and the order of the New South Wales Court of Criminal Appeal should be set aside. In lieu thereof it should be ordered that the appeal to that court be allowed and the indictment quashed.

TOOHEY AND McHUGH JJ These appeals were heard together. The parties to each appeal agreed that the disposition of one appeal necessarily determined the outcome of the other. It is appropriate, therefore, to deal first with the appeal of Sandra Lee Jamieson though some reference to the role of the other appellant cannot be avoided. It is convenient to refer to Ms Jamieson as "the appellant".

2. The Court of Criminal Appeal of New South Wales dismissed an appeal brought to it by the appellant under s.5F of the Criminal Appeal Act 1912 (N.S.W.). Section 5F enables a party to proceedings on indictment to appeal against an interlocutory judgment given in the proceedings, with the leave of the Court of Criminal Appeal or upon a certificate from the court below "that the judgment ... is a proper one for determination on appeal". Moore DCJ certified that his judgment dismissing a notice of motion in which the appellant sought the quashing of an indictment against her was a proper one for determination on appeal.

3. The appellant was charged upon an indictment which alleged an offence against s.178BA of the Crimes Act 1900 (N.S.W.) ((18) Section 344A of the Crimes Act provides that "any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty".). Sub-section (1) of that section reads:

"Whosoever by any deception dishonestly obtains for
himself or another person any money or valuable thing or
any financial advantage of any kind whatsoever shall be
liable to imprisonment for 5 years."

The indictment alleged that the appellant:

"on or about 31 July 1986 at Wollongong ... did attempt
to dishonestly obtain for herself money by deception,
namely by falsely representing that she was a passenger
in (a) motor vehicle ... which, on 13 January 1984, at
Waterfall ... was then involved in a collision with
(another) motor vehicle ... and, further, that at the
time of the said collision one Carolyn Janice Brugmans
was driving the said motor vehicle ... and, further, that
the said collision was caused partly by the negligence
of ... Carolyn Janice Brugmans."

4. It appears that the motion to quash the indictment was lodged on the morning the trial was to begin. This was because the indictment in its final form had not been served on the appellant until the previous day. The motion itself is not part of the appeal book. However, it was not in dispute that the following passage from the judgment of the Court of Criminal Appeal accurately records what happened:

"The motion to quash the indictment was argued upon the
basis of an agreed fact or particular which is recorded in
the transcript of the proceedings before Moore DCJ in the
following terms:
'The Crown case would be that it was the causing of the
statement of claim to be served upon the Government
Insurance Office which amounted to the attempt.'

Moore DCJ dismissed the motion to quash the indictment, substantially upon the ground that the argument with which he was concerned was covered by the decision of this Court in R v. Beydoun ((19) (1990) 22 NSWLR. 256.), and that he was bound by that decision."

5. The reference to service of a statement of claim arises in this way. The appellant issued a writ claiming damages for personal injury. According to the judgment of Moore DCJ, the words in the indictment are "broadly the same" as those in the statement of claim. In other words, the appellant claimed damages on the basis that she was a passenger in a motor vehicle driven by Ms Brugmans which was involved in an accident. What is important for the purposes of the appeal is that, in the statement of claim, the appellant alleged that she was a passenger and that this document was served on the Government Insurance Office as the statutory insurer. The Crown contended that the appellant was in fact the driver of the vehicle in which she and Ms Brugmans had been travelling and that the civil proceedings were an attempt by the appellant dishonestly to obtain for herself money by deception. In particular, the Crown alleged that it was service of the statement of claim on the Government Insurance Office that constituted the attempt.

6. The basis of the motion to quash the indictment is reflected in the primary ground of appeal which reads:

"The Court of Criminal Appeal erred in holding that the
general exclusion of criminal liability for statements
made in the course of and with respect to judicial
proceedings did not preclude a prosecution for the offence
of attempting to obtain by deception based upon service of
a statement of claim claiming damages."

In argument, the appellant encountered a formidable obstacle in the decision of the New South Wales Court of Criminal Appeal in The Queen v. Beydoun. In that case, the Court of Criminal Appeal, faced with a decision by a trial judge to quash an indictment under comparable circumstances, held that the general exclusion of criminal liability for statements made in the course of and with respect to judicial proceedings did not preclude a prosecution under s.178BA of the Crimes Act based upon the instigation of those proceedings.

7. In the view of the Court of Criminal Appeal (Gleeson CJ, McInerney and Studdert JJ), the present case "is on all fours with Beydoun". The Court had earlier refused leave to the appellant to argue that Beydoun was wrongly decided. Beydoun being, in its view, indistinguishable, the Court dismissed the appeal from the judgment of Moore DCJ.

8. The leading judgment in Beydoun was delivered by Hunt J, with whom Wood and McInerney JJ agreed. His Honour examined the history of the rule that "no civil action lies in respect of statements made in the course of and with respect to judicial proceedings" ((20) ibid, at p.260 (emphasis in original).) and concluded that, so long as the rule was understood "as being limited to those actions which are based directly upon the making of such statements" ((21) ibid.), it still applied. His Honour then considered decisions in which criminal prosecutions based upon such statements were involved and said ((22) ibid, at p.262.):

"Against that background, there is in my view no
authority directly in point which excludes criminal
liability where an allegation of fraud is based upon the
instigation of judicial proceedings rather than directly
upon statements made in the course of and with respect to
those proceedings. Just as that distinction applies in
relation to civil actions, so should it in my opinion apply
in relation to criminal prosecutions."

Hunt J was faced with the decision in The Queen v. Jurca ((23) (1986) 6 NSWLR. 491.) in which Herron DCJ quashed an indictment under s.178BB of the Crimes Act, based upon "the particulars of the plaintiff's loss and damage" referred to in an amended statement of claim filed on behalf of the accused in proceedings between the accused and an insurance company. In effect, the accused had been charged with concurring in the making of a statement, namely the amended particulars, to other persons including the insurance company, with intent to obtain money for himself. Hunt J held Jurca to be "clearly distinguishable" ((24) (1990) 22 NSWLR., at p.263.) because the prosecution in that case was based directly on a statement made in judicial proceedings.

9. Now, there may be other problems arising out of the charge against the appellant, for instance, whether service of the statement of claim could constitute an attempt to obtain money by deception. But these are not matters for the determination of this Court. The question to be answered is whether the indictment should have been quashed on the ground that anything alleged in the statement of claim could not be relied upon by the Crown to support a charge under s.178BA of the Crimes Act because an exclusion from criminal liability attached thereto. It must be assumed for the purposes of this appeal that, immunity aside, the Crown could establish that the appellant had committed the offence charged. And it must be acknowledged that this lends a certain artificiality to the appeal.

10. While relevant authorities go back at least to the sixteenth century, a useful starting point in resolving the issue is the statement of Lopes LJ in Royal Aquarium and Summer and Winter Garden Society v. Parkinson ((25) (1892) 1 QB 431, at p 451.):

"The authorities establish beyond all question this: that
neither party, witness, counsel, jury, nor judge, can be
put to answer civilly or criminally for words spoken in
office; that no action of libel or slander lies, whether
against judges, counsel, witnesses, or parties, for words
written or spoken in the course of any proceeding before
any Court recognised by law, and this though the words
written or spoken were written or spoken maliciously,
without any justification or excuse, and from personal
ill-will and anger against the party defamed."

11. Cabassi v. Vila ((26) [1940] HCA 41; (1940) 64 CLR 130.) held that the principle that no civil action lies in respect of evidence (even if false and malicious) given by witnesses in the course of judicial proceedings extends to prevent the maintenance of an action for conspiracy by an unsuccessful litigant against witnesses whom he alleged to have conspired together to give false evidence. Rich ACJ ((27) ibid, at p.139; see also per Williams J, at p.151.) explained the rationale for the rule in this way:

"Public policy and the safe administration of justice
require that witnesses, who are a necessary part of the
judicial machinery, be privileged against any restraint,
excepting that imposed by the penalty for perjury. Though
not a party to the former suit and judgment, the merits
of that judgment cannot be re-examined by a trial of the
witness' testimony in a suit against him."

Two considerations are at work in this statement. One is concerned to see that those involved in litigation should speak freely without fear of consequent litigation; the other seeks to avoid interminable litigation.

12. The immunity has been held not to apply to civil actions for malicious prosecution or abuse of process, the point of distinction being that these actions are based not on statements made in the course of judicial proceedings but on the instigation of the proceedings themselves ((28) The authorities are cited by Hunt J in Beydoun (1990) 22 NSWLR., at p.260.).

13. In so far as the proposition enumerated by Lopes LJ relates to criminal proceedings, it seems to depend on the dictum of Lord Mansfield in The King v. Skinner ((29) (1772) Lofft 54, at p 56 [1763] EngR 35; (98 ER 529, at p 530).) that:

"neither party, witness, counsel, jury, or Judge, can be
put to answer, civilly or criminally, for words spoken in
office".

Lord Mansfield's remarks were made in the course of granting an adjournment in the case which involved a justice of the peace charged with an offence arising out of words spoken by him to a grand jury in the course of a trial in a general sessions of the county. The offence was that of speaking scandalous words, a form of criminal defamation. In Beydoun Hunt J said that although Lord Mansfield's dictum had been quoted on a number of occasions, the researches of counsel had not discovered any reported case in which the dictum had been applied in relation to a criminal prosecution ((30) (1990) 22 NSWLR., at p.261.). As his Honour observed ((31) ibid, at p.262.), the dictum was not literally correct, having regard to the existence of perjury as a common law misdemeanour and the common law offence of perverting or attempting to pervert the course of justice ((32) The Queen v. Vreones (1891) 1 QB 360. See also The Queen v. Rogerson (1992) [1992] HCA 25; 174 CLR 268.).

14. Originally, defamation fell within the jurisdiction of the ecclesiastical courts as well as the courts of common law ((33) See generally Fifoot, History and Sources of the Common Law, (1949), Ch.7.) . Fifoot points out that a "single species of defamation was made criminal by Parliament ... by Chapter 34 of the Statute of Westminster the First" in 1275 ((34) ibid, p.128.). The statute was concerned to punish those who promoted discord "between the king and his people or great men of this realm". In the reign of Elizabeth the Star Chamber evolved the offence of libel. "Recurrent political crises, aggravated by the new powers of the press, stimulated a precocious activity, particularly at the close of the reign." ((35) ibid, p.131.) Following the abolition of the Star Chamber, "the common lawyers, as its residuary legatees, re-examined the relations between the crime and the tort of defamation" ((36) ibid, p.132.). It is unnecessary to look at that re-examination. Defamation as a crime survived; its contemporary use and scope are illustrated by Spautz v. Williams ((37) (1983) 2 NSWLR. 506; on appeal [1992] HCA 34; (1992) 174 CLR 509.).

15. The point of this brief excursus is that, in the history of criminal defamation, no case other than Skinner appears to have attributed an immunity to words spoken in the course of judicial proceedings. Certainly, there is no basis for holding that immunity attaches where the foundation of a prosecution for criminal defamation is the instigation of proceedings. Nor is there any authority excluding criminal liability where the foundation of an indictment for fraudulent conduct is the instigation of civil proceedings, as contrasted with statements made in the course of and with reference to those proceedings. Whether and to what extent immunity attaches to those statements it is unnecessary to determine.

16. There is no consideration of public policy that would justify excluding liability for a prosecution for fraudulent conduct based on the instigation of proceedings. On the contrary, we respectfully agree with Hunt J ((38) Beydoun (1990) 22 NSWLR., at p.262.) that to exclude liability in such circumstances would "make a mockery of the criminal law". The crux of the prosecution is the serving of the statement of claim upon the Government Insurance Office. Whatever difficulties the identification of that act may present for the Crown in establishing the commission of the offence charged, the appellant cannot, by reason of that identification alone, claim an immunity from prosecution.

17. The Court of Criminal Appeal was right in holding that the present case was indistinguishable from Beydoun. Beydoun was correctly decided and the appeal should be dismissed. It follows that the appeal of Carolyn Janice Brugmans should also be dismissed.

GAUDRON J These appeals, which were heard together, raise the question whether the service of originating court process can constitute the offence of attempting to obtain money by deception.

2. Ms Jamieson and Ms Brugmans, the appellants, were travelling in a motor vehicle in January 1984 when it was involved in an accident. Each commenced an action for damages for negligence claiming that, at the relevant time, the car was being driven by Ms Brugmans. Ms Jamieson's statement of claim, it seems, alleged that the accident "was caused partly by the negligence of (Ms) Brugmans"; Ms Brugmans' that the accident "was caused by the negligence of the driver of (an) unknown vehicle", which she had swerved to avoid. The statements of claim were served on the Government Insurance Office as statutory insurer. Ms Jamieson and Ms Brugmans were each subsequently indicted for the offence of attempting to obtain money by deception.

3. The prosecution case is that Ms Jamieson was the driver of the car at the time of the accident, not Ms Brugmans. On the morning on which their trial was to commence in the District Court of New South Wales, the prosecutor particularized the actus reus of the offence charged against each appellant as "the causing of the Statement of Claim to be served upon the Government Insurance Office". Ms Jamieson and Ms Brugmans moved to have the indictments quashed. Their motions were dismissed. They appealed unsuccessfully to the Court of Criminal Appeal of the Supreme Court of New South Wales. They now appeal to this Court.

4. Section 178BA(1) of the Crimes Act 1900 (N.S.W.) creates the offence of obtaining money by deception in these terms:

"Whosoever by any deception dishonestly obtains for
himself or another person any money or valuable thing or any
financial advantage of any kind whatsoever shall be liable
to imprisonment for 5 years."

"Deception" is relevantly defined by sub-s.(2) as follows:

"'deception' means deception (whether deliberate or
reckless) by words or conduct as to fact or as to law,
including:
(a) a deception as to the present intentions of the
person using the deception or of any other person".

So far as presently relevant, s.344A(1) of the Crimes Act has the effect of making an attempt to obtain money by deception an offence punishable in the same way as the offence created by s.178BA.

5. There is very considerable difficulty with the notion that a statement in originating process, even if deliberately untrue, can constitute a "deception" as defined in s.178BA(2) of the Act. In this respect, I see no reason to dissent from what is said by Deane and Dawson JJ in this case. And there may be further difficulties in this regard by reason that s.178BA requires there to be some sufficient causal relationship between the act said to constitute deception and the obtaining of money ((39) See Ho and Szeto (1989) 39 A Crim R 145, at p.147. See also Royle (1971) 56 Cr App R 131, at pp.141-142; Kovacs (1973) 58 Cr App R 412, at p 416; Reg. v. Charles (1977) AC 177, at p 192; Reg. v. Clarkson [1987] VicRp 80; (1987) VR 962, at p 980; Reg. v. Stanhope, unreported, Court of Criminal Appeal of the Supreme Court of New South Wales, 10 September 1987, at p 7.). Although these matters were raised in argument, they were not argued below and were not the subject of precise submissions in this Court.

6. The primary argument for the appellants, here and in the courts below, was that s.178BA should not be construed as cutting down or limiting the privilege which attaches to words spoken in the course of legal proceedings. In that context, it was argued that service of a statement of claim has significance only by reason of the statements contained in it, and, to prosecute on the basis of its service is, in substance and effect, to prosecute for statements made in the course of legal proceedings. Alternatively, it was argued that because of considerations connected with that privilege, and quite apart from any question of sufficient causal relationship, the service of originating process simply does not fall within the offence created by s.178BA.

7. The argument for the appellants based on the privilege which attaches to statements made in the course of legal proceedings was rejected by the Court of Criminal Appeal, it being held that that issue was concluded against them by its earlier decision in Reg. v. Beydoun ((40) (1990) 22 NSWLR. 256.). In that case a distinction was drawn, by reference to civil actions for malicious prosecution and abuse of process, between "the instigation of judicial proceedings" and "statements made in the course of and with respect to those proceedings" ((41) ibid, at p.262.). It was held that the former could give rise to criminal liability, but that the latter could not.

8. The distinction between the instigation of proceedings and statements made in the course of proceedings was illustrated in Beydoun by contrasting that case with that of Reg. v. Jurca ((42) (1986) 6 NSWLR. 491.). In Beydoun, as here, the prosecution was based on the service of a statement of claim, whilst in Jurca the prosecution was based on the accused's "participation in making (a) false statement in (a) statement of claim" ((43) Reg. v. Beydoun (1990) 22 NSWLR., at p 263.).

9. In my view, it is not possible, in circumstances such as those with which these appeals are concerned, to distinguish between the instigation of legal proceedings by service of originating process and the making of statements in that process. The central feature of an offence under s.178BA is deception. In the context of an allegation of deception or, indeed, of dishonesty of any kind, service of originating process cannot be viewed in isolation from what is said in it. It is only by having regard to what is, in fact, said and claimed, that service of originating processes can, in any way, assume a deceptive or dishonest aspect. Thus, as the appellants claim, a prosecution under s.178BA of the Crimes Act, based on service of a statement of claim is, in substance and effect, a prosecution for what is said in it. However, that does not dispose of the appeals for s.178BA does not, in terms, exclude the instigation of judicial proceedings, statements made in originating process or, even, statements made in the course of those proceedings from the offence which it creates, and it is, thus, necessary to consider whether all or any of these acts fall within its terms.

10. The best known statement of the privilege on which the appellants rely for their primary argument is that of Lord Mansfield in R. v. Skinner ((44) (1772) Lofft 54, at p 56 [1763] EngR 35; (98 ER 529, at p 530).):

"neither party, witness, counsel, jury, or Judge, can be
put to answer, civilly or criminally, for words spoken in
office".

That statement has been accepted as authoritative on many occasions ((45) See, for example, Kennedy v. Hilliard (1859) 10 ICLR 195, at pp 207, 222; Dawkins v. Lord Rokeby (1873) LR 8 QB 255, at p 264; Munster v. Lamb (1883) 11 QBD 588, at pp 604, 606; Royal Aquarium and Summer and Winter Garden Society v. Parkinson (1892) 1 QBD 431, at p 451; Hargreaves v. Bretherton (1959) 1 QB 45, at p 51.), but it must be remembered that, so far as the criminal law is concerned, it is subject to a number of clear exceptions. Thus, perjury, contempt, perverting the course of justice and their associated offences are exceptions to or stand outside the privilege, they being offences which may, and usually do, involve statements made in the course of legal proceedings.

11. Perjury, contempt and perverting the course of justice are offences which serve to protect the integrity of the judicial process. The privilege which attaches to statements made in the course of legal proceedings also serves important functions in relation to that process: it promotes resort to the courts for the resolution of justiciable issues; and, it protects the judgments of the courts from collateral attack.

12. The importance of the two separate functions served by the privilege which attaches to statements made in the course of legal proceedings appears in a passage in the judgment of Rich ACJ in Cabassi v. Vila ((46) [1940] HCA 41; (1940) 64 CLR 130.). In that case the complainant in assault proceedings attempted to bring civil proceedings for conspiracy based on the giving of false evidence in the proceedings for assault. His Honour said ((47) ibid, at p.139; and see per Starke J at p.141; per McTiernan J at pp.144, 145; per Williams J at pp.149, 151.):

"An action by the defeated party cannot ... be maintained
against a witness or witnesses for giving false testimony
in favour of his opponent. Public policy and the safe
administration of justice require that witnesses, who are
a necessary part of the judicial machinery, be privileged
against any restraint, excepting that imposed by the penalty
for perjury. Though not a party to the former suit and
judgment, the merits of that judgment cannot be re-examined
by a trial of the witness' testimony in a suit against him.
The procedure, if permitted, would encourage and multiply
vexatious suits, and lead to interminable litigation" ((48) See
also, as there cited, Cunningham v. Brown (1846) 18 Vermont 123
(46 Am Dec 140); Dunlap v. Glidden, Jun. (1850) 31 Maine 435 (52
Am Dec 625); Gusman v. Hearsey (1876) 28 La Ann 709 (26 Am Rep
104).).

13. Resort to the courts for the orderly resolution of disputes between citizens, or between citizens and government, would be greatly put at risk if witnesses were to be subject to restraints with respect to their evidence, other than those which serve to protect the integrity of the judicial process. It would be put at even greater risk if litigants were not similarly privileged in respect of the instigation of proceedings. Of course, there are also restraints in that regard.

14. The somewhat different position of litigants, vis-a-vis witnesses, can be seen from the nature of the restraints which affect them. Litigants are affected not only by the restraints effected by the laws relating to perjury, contempt and perverting the course of justice which ensure the integrity of the judicial process but, as well, by those designed to ensure that proceedings serve the ends of justice. Thus, liability attaches to them for malicious prosecution and for abuse of process; and they are subject to restraints which may be imposed by the courts with respect to proceedings which are vexatious or oppressive; or, those which may be imposed on litigants who habitually instigate proceedings of that kind. The different position of litigants, vis-a-vis witnesses, explains the fact that civil liability attaches to them for instigating proceedings which amount to malicious prosecution or abuse of process. However, the existence of civil liability for those matters does not provide any basis for concluding that criminal liability under s.178BA of the Crimes Act may also attach to the instigation of proceedings.

15. As has been seen, the necessity for there to be full and free access to the courts provides, to some extent, the rationale for the privilege which attaches to statements made in the course of legal proceedings. It is that necessity, rather than the subsidiary privilege on which the appellants primarily relied, which is challenged by the notion that service of originating process can give rise to criminal liability. Certainly, the prospect of a prosecution being launched by reason of the institution of legal proceedings is a serious restraint upon that access. The seriousness of the restraint which would be involved if s.178BA of the Crimes Act were construed as applying to the bringing of legal proceedings may be seen from the fact that, apart from there being some prospect of the receipt of money, all that would be necessary to establish a prima facie case of attempting to obtain money by deception would be evidence which, in a respect bearing on entitlement to that money, contradicted the account contained in the document by which the proceedings were commenced.

16. The necessity for there to be full and free access to the courts is also reflected in the rule of construction that, in the absence of express words or a clear legislative intent to that effect, a statute is not construed as limiting or placing a restraint on the right to approach the courts for relief. That rule has its most frequent application in cases involving privative clauses or other legislative provisions which limit the jurisdiction of courts ((49) See, with respect to privative clauses, Clancy v. Butchers' Shop Employees Union [1904] HCA 9; (1904) 1 CLR 181, at p 204; Hockey v. Yelland [1984] HCA 72; [1984] HCA 72; (1984) 157 CLR 124, at pp 130, 142; Public Service Association (S.A) v. Federated Clerks' Union [1991] HCA 33; (1991) 173 CLR 132, at p 160. And see, more generally, Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, at p 399; [1987] HCA 27; 72 ALR 1, at pp 12-13; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd. [1989] HCA 41; (1989) 167 CLR 513, at p 517; Jago v. District Court (N.S.W.) [1989] HCA 46; (1989) 168 CLR 23, at p 76.). However, it is a rule of general application as is the related rule that, in the absence of express words or clear legislative intent, a statute is not construed as abrogating important common law rights, privileges or immunities ((50) See, for example, Potter v. Minahan [1908] HCA 63; [1908] HCA 63; (1908) 7 CLR 277, at p 304; Bropho v. Western Australia [1990] HCA 24; (1990) 171 CLR 1, at pp 17-18; Corporate Affairs Commission (N.S.W.) v. Yuill [1991] HCA 28; (1991) 172 CLR 319, at p 339.). The effect of these related rules of construction is that s.178BA of the Crimes Act must be construed on the basis that it extends neither to the instigation of judicial proceedings nor to words spoken in the course of and for the purpose of those proceedings.

17. The appeals should be allowed. The decision and orders of the Court of Criminal Appeal should be set aside and, in lieu thereof, it should be ordered that the appeals to that court be allowed and that, in each case, the indictment be quashed.