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.

Solicitors

The fact that an offender who bribes or attempts to bribe a police officer is a solicitor is an aggravating feature, whether the bribe is large or small: R v Pangallo (1991) 56 A Crim R 441. In Pangallo, Lee CJ at CL explained at 443–444:

The police are in constant contact with members of the legal profession, both barristers and solicitors, and the opportunities for bribery are great and those circumstances of themselves mean that the element of deterrence is always a matter which must be kept very much to the forefront of the mind of a sentencing judge when a solicitor appears before him on a charge such as the present one. Solicitors as part of the legal profession, are expected to conduct themselves towards their clients with honesty … and that high standard of honesty is also expected of them in their dealings with the police, the courts and indeed also with other public authorities.

Judicial officers

In a case of attempting to pervert the course of justice, a custodial sentence will be imposed where the offender is a judicial officer: R v Farquhar (unrep, 29/5/85, NSWCCA). The court stated at pp 30–31:

Where, as here, the offence is committed by a person holding judicial office in the judicial hierarchy of the State the attempt to commit the offence strikes at the very core of the integrity of the administration of justice. Such a person is in a commanding position to attempt to pervert the course of justice and when he seeks to abuse his position to achieve that end, public confidence in the judicial system will be lost unless it is made clear that such conduct will bring a prison sentence.

The court made clear that since the public is entitled to expect a judicial officer will be of good character and integrity, previous good character or reputation of a judge convicted of attempting to pervert the course of justice will be of far less weight than in a different type of offence: R v Farquhar at p 31. In Einfeld v R (2010) 200 A Crim R 1 at [81], Basten JA said:

… it is beyond question that for a senior legal practitioner and former judge of a superior court to commit offences against the administration of justice is apt to give rise to public disquiet about the integrity of the judicial system. These were offences to which the present status of, and the offices formerly held by, the applicant were of great significance.

There is “a risk that judges will deal more harshly than some would think appropriate with those from within their own ranks”: Einfeld v R at [82]. Notwithstanding that danger, it is accepted that an offender’s status as a senior legal practitioner and former judge rendered perjury and perverting the course of justice more serious than they would otherwise have been: Einfeld v R at [82]. Basten JA also stated at [83] (Latham J agreeing at [196]; RS Hulme J agreeing at [195]) that the applicant’s former positions removed:

… an element of ignorance which might otherwise have diminished the degree of culpability. It was not merely a matter of knowing that it is a crime to lie on oath or seek to pervert the course of justice: it was a matter of understanding the significance accorded to such conduct by the law and the heightened seriousness of offences when committed by a person with the applicant's background and experience.

Politicians

In R v Jackson and Hakim (unrep, NSWSC, 2/9/87), the Minister for Corrective Services of NSW was sentenced to a term of sentence of 7 years 6 months, with a non-parole period of 3 years 9 months, for the common law offence of conspiracy. He had conspired to receive money corruptly in exchange for the early release of prisoners on administrative licence. Roden J stated:

The true measure of his criminality, however, is not to be found solely in how much or little he gained, or in how much or how little society may have suffered through the early releases of prisoners he procured. Its true measure lies in the undermining of the institutions and the principles on which we depend.

A Crown appeal asserting that the sentence was manifestly inadequate was upheld (Lee J; with Finlay J agreeing, Street CJ dissenting): R v Jackson and Hakim (unrep, NSWCCA, 23/6/88). The court resentenced Jackson to 10 years imprisonment, with a non-parole period of 5 years. Lee J observed at p 1:

We live, and are fortunate to live, in a democracy in which members of Parliament decide the laws under which we shall live and cabinet ministers hold positions of great power in regard to the execution of those laws. A cabinet minister is under an onerous responsibility to hold his office and discharge his function without fear or favour to anyone, for if he does not and is led into corruption the very institution of democracy itself is assailed and at the very height of the apex.

The fact that Jackson was not the instigator of the scheme, was addicted to gambling and had previously been of good character counted for little. In relation to the last matter, Lee J explained at p 3:

… as was pointed out in R v Farquhar … the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as in the case of an ordinary citizen committing crime, for the public is entitled to expect that those who are placed in high office will necessarily be persons whose character makes them fit to hold that office.

[20-150] Interference in the administration of justice: Pt 7 Div 2 Crimes Act 1900

Section 314 — False accusations etc

Section 314 states: “A person who makes an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence, is liable to imprisonment for 7 years”.

It is appropriate in assessing the objective criminality of an offence under s 314 to identify a critical respect in which the police investigation was diverted: R v Richards [2006] NSWCCA 262 at [70]. Where an offender under s 314 stands to gain more than co-offenders, his or her objective criminality will be greater: R v Richards at [75].

Section 315 — Hindering investigation etc

Section 315(1)(a)–(c) prohibits any conduct that is intended in any way to hinder the investigation of, discovery of evidence in relation to, or apprehension of another for, a serious indictable offence.

Range of offending

Hindering an investigation under s 315(1)(a) is capable of encompassing a wide range of objective criminality: R v Mobbs [2005] NSWCCA 371 at [48]. It is appropriate to take into account the seriousness of the “serious indictable offence”, the investigation of which was hindered by the offender: R v Mobbs [2005] NSWCCA 371 at [49]; R v Lawrence [2004] NSWCCA 404 at [21].

It is also relevant to consider the extent to which the investigation is hindered and the conviction of a person for the related “serious indictable offence” is made more difficult. In some cases, the hindering will be relatively unsuccessful. For example, in R v Lawrence, the applicant maintained statements exculpating her de facto partner of an assault, despite police arresting him and finding evidence linking him to the crime. Howie J at [22] contrasted the case with R v Derbas [2003] NSWCCA 44, where an offender organised other persons to degrease a vehicle used in connection with a homicide and make it appear stolen.

Similarly in R v Richmond [2000] NSWCCA 173, the court took particular note of the actual impact on the investigation. Smart AJ explained at [24]: “While the police were subjected to additional expense and there was probably some delay in the investigation, it could not be said that Mr Richmond’s criminality extended to other than making a false statement which was not accepted”. In Sampson v R [2014] NSWCCA 19, the fact police were not hindered in their investigation by the offending conduct was a factor taken into account by the sentencing judge in finding the offence was “in the lower part of the middle range” of objective seriousness: Sampson v R at [11]–[12].

In some circumstances where a person hinders an investigation, the fact that the person who committed the “serious indictable offence” is eventually convicted will be of no significant weight. In R v Derbas, the killer was only convicted by the fortuitous circumstance of another person coming forward: R v Derbas at [10]–[11].

The statutory hierarchy of offences in Part 7 and the De Simoni principle

Care must be taken not to infringe the De Simoni principle (see discussion at [1-500]) when sentencing an offender for an offence under Pt 7 of the Crimes Act 1900. See generally Fact Finding at Sentence at [1-500]. In R v Mobbs [2005] NSWCCA 371 at [31]–[32], Johnson J stated that:

The offence under s 319 [perverting the course of justice — 14 years] is regarded by the legislature as being more serious than an offence under s 315 [hindering investigation — 7 years]. As Howie J observed in R v Hamze [2005] NSWSC 136 at paragraph 24, insofar as the maximum penalty for a s 315 offence reflects Parliament’s assessment of the conduct giving rise to the offence, a maximum penalty of seven years is “a relatively modest one”. In passing sentence for a s 315 offence, it is necessary to keep in mind the different elements and penalties referable to offences under ss 315 and 319. A sentencing judge must not attribute to an offender conduct which would constitute a more serious offence [than] that for which he is to be sentenced: De Simoni; R v El-Zeyat [2002] NSWCCA 138 at paragraph 46.

… A finding that, but for the actions of a s 315 offender, another person would have been prosecuted for a more serious offence appears to me to move beyond the elements of a s 315 offence to a s 319 offence so as to infringe the De Simoni principle.

Motive

A decision to hinder an investigation based on threats may be relevant to sentencing, but such a claim must be supported by evidence: R v Derbas [2003] NSWCCA 44 at [15]–[16].

An offence motivated by loyalty is not necessarily less serious than conduct motivated by reward. The former is part of the evil against which s 315 is directed. Although a motivation of reward may be thought to be more deserving of censure, the need for general deterrence of offenders motivated by loyalty is likely to be greater: R v Derbas at [28].

Offending committed on the spur of the moment must be distinguished from the more serious scenario of conduct which, although not premeditated, is nevertheless ongoing and organised: R v Derbas at [17].

Other factors

Factors relevant to sentencing an offender under s 315 were discussed by Johnson J in R v Mobbs [2005] NSWCCA 371 at [49]–[51]. The applicant was a passenger in a car driven by Richards which was involved in a fatal head-on collision. The applicant agreed with Richards that he would claim to be the driver:

There had been a tragic collision causing the death of one person and serious injury to a number of people. For a period of about 24 hours, the Applicant hindered the police investigation. He told a number of people that he was the driver and he placed his P plates on Richards’ vehicle. These were aggravating features of this offence.

There are other factors, however, which bear upon an assessment of the objective criminality of the offence. The fact that the offence is committed on the spur of the moment, without planning or premeditation, is relevant … The length of time during which the hindering is maintained is also relevant … The motive of the offender in committing the offence is relevant … General deterrence is significant …

This was not an offence where the Applicant stood to gain or receive any benefit for himself. Indeed, an admission that he was the driver of a motor vehicle which had just been involved in such a catastrophic collision could only be regarded as an admission attracting substantial detriment to the Applicant. This is a most unusual feature of this case. The Applicant’s hindering of the investigation of the offence attracted investigation by police of himself for serious offences. [Citations omitted.]

Similarly, Howie J enumerated a number of factors relevant to the objective seriousness of an offence under s 315 in R v Hamze [2005] NSWSC 136 at [21]–[24].

Section 316(1) — Concealing serious indictable offence

It is an offence for a person, knowing or believing that a serious indictable offence has been committed, to fail without reasonable excuse to give information which might be of material assistance to police: s 316(1). A person who solicits or agrees to accept a benefit in consideration for doing anything that would be an offence under s 316(1) is also guilty of an offence: s 316(2).

The seriousness of the “serious indictable offence” which is concealed is relevant to the objective seriousness of an offence under s 316: R v Crofts (unrep, 10/3/95, NSWCCA).

In Crofts, Meagher JA observed:

The section is a comparatively new section and this is the first case, so far as one knows, which has been brought under it. It is a section which has many potential difficulties, the chief of which is the meaning of the words “without reasonable excuse”, difficulties which are magnified when one endeavours to contemplate how those words would apply to the victim of the crime.

Gleeson CJ added: “… depending upon the circumstances of an individual case, it may be extremely difficult to form a judgment as to whether a failure to provide information to the police was ‘without reasonable excuse’”.

The NSW Law Reform Commission concluded in Review of Section 316 of the Crimes Act 1900 (NSW), Discussion Paper 39, 1997 at [4.40] that the wide scope for prosecution under s 316(1) was unsatisfactory:

Section 316 has a valid social purpose of encouraging members of the public who have information about serious crimes to report that information to the police and other appropriate authorities. However, the technical application of s 316(1) to information acquired in the course of confidential relationships, including relationships between law enforcement agencies and informants, health care professionals and patients and researchers and research subjects inhibits participation in these relationships. This problem outweighs the social utility of s 316(1).

In 1997, Parliament introduced s 316(4)–(5), which provides:

(4)

A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.

(5)

The regulations may prescribe a profession, calling or vocation as referred to in subsection (4).

In the subsequent report, Review of Section 316 of the Crimes Act 1900 (NSW), Report 93, 1999, the NSW Law Reform Commission stated at [3.1]:

The Commission has concluded that the amendments to s 316 which came into force in March 1998 do not adequately address the problems with the section identified in the Discussion Paper. The Commission recommends that s 316(1) should be repealed. This is a unanimous recommendation. A minority of Commissioners favours the substitution of a new provision, somewhat analogous, but, in the minority’s view, adequate to overcome the grave problems created by the present subsection. The Commission also considers that the compounding offence contained in s 316(2) should be slightly amended.

Section 319 — Perverting the course of justice

Section 319 provides: “A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years”.

Objective seriousness of offence

The high maximum penalty recognises the importance of protecting the integrity of the criminal justice system: R v Purtell [2001] NSWCCA 21 at [12]. Offences of perverting the course of justice are singled out as offences of the most serious kind: Taylor v R [2007] NSWCCA 99 at [23]. They strike at the very heart of the justice system and must be severely punished wherever detected: Marinellis v R [2006] NSWCCA 307 at [10]; citing R v Pangallo (1991) 56 A Crim R 441 at 443.

Strongly deterrent sentences are required in sentencing for an offence under s 319: Taylor at [23]; Marinellis at [10]; Harrigan v R [2005] NSWCCA 449 at [47]; R v Giang [2001] NSWCCA 276 at [21]; Church v R [2012] NSWCCA 149 at [46].

In Harrigan, James J said at [48]–[50]:

It seems to me that an offence under section 319 has some affinity with an offence of bribing a police officer, in that each offence is an interference with the criminal justice system.

In R v Duong (1999) 109 A Crim R 60, a case in which one of the offences was an offence of offering a bribe to a police officer, Wood CJ at CL said … “save in the most exceptional circumstances, such an offence will call for a significant term of imprisonment to be imposed cumulatively or at least substantially cumulatively upon the sentence for the primary offence in respect of the detection or prosecution of which the bribe was offered.”

In my opinion, her Honour was required to make the sentences she imposed at least substantially cumulative on each other.

The fact that an attempt to pervert the course of justice did not succeed or was doomed to failure is of far less significance than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R [2007] NSWCCA 99 at [25]; Marinellis v R [2006] NSWCCA 307 at [8]; R v Taouk (1992) 65 A Crim R 387 at 392. It is, therefore, an error to take into account the fact the acts were unsuccessful when assessing the objective seriousness of an offence of perverting the course of justice: R v PFC [2011] NSWCCA 117 at [66]–[67], applying Taylor v R. It is the tendency of the conduct which is decisive and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis v R at [8].

In R v Nomchong (unrep, 10/4/97, NSWCCA) McInerney J (with Hunt CJ at CL and Sully J agreeing), endorsed the trial judge’s reasoning 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 full-time custodial sentence”. The case involved a senior police officer attempting to corrupt a junior officer under his supervision.

In the two judge-bench of R v Giang [2001] NSWCCA 276, McClellan J (as he then was) stated at [26]–[27]:

There can be little doubt that when the offender is the instigator of the act which is intended to compromise the integrity of the curial process and benefits or intends to benefit from the doing of the agreed act, extraordinary circumstances will be required before a custodial sentence is not appropriate.

The situation may be different when the offender, although a willing participant, neither initiates or stands to benefit from the offence.

The use of intimidation or threatened violence as part of conduct intended to pervert the course of justice increases the seriousness of the offence: R v Mrish [2000] NSWCCA 17 at [13].

Motive

It has been accepted that the fact a person is protecting a family member is a relevant consideration when sentencing for a s 319 offence: Podesta v R [2009] NSWCCA 97 per McClellan CJ at CL at [21]. However, in R v Nguyen [2004] NSWCCA 332, Spigelman CJ held at [55]:

… personal advantage can take many forms. Greed may be regarded as a less worthy motive than protection of a family member. The latter is no less a form of personal gain to an offender and, often, is a more powerful motive. Protection of the system of criminal justice should not be significantly less vigilant where its perversion is attempted for reason of family ties, rather than the expectation of monetary gain.

The more serious the offence, the less weight should be given to motive as a mitigating factor: R v Mitchell [2007] NSWCCA 296 per Howie J at [31]–[32].

In R v Moore [2012] NSWCCA 3, the respondent forged a letter from his employer in support of an application for bail variation with the intended purpose of enabling him to attend a weekend vocational course without breaching bail conditions. In the course of dismissing the Crown’s appeal against sentence, the court noted (per Simpson J at [35]) that “when consideration is given to the other purposes for which an offence of this kind is sometimes committed — for example, unwarranted acquittal on a serious charge — this offence may be seen in its proper perspective on the scale of objective gravity”.

Relevance of the principal charges being no billed or dropped

In R v Marinellis [2001] NSWCCA 328, the applicant asked a number of acquaintances to provide an alibi for an alleged sexual assault. The sexual assault charges were ultimately not proceeded with, although the applicant was committed for trial. In rejecting his sentence appeal in relation to perverting the course of justice, McClellan J (with Studdert J agreeing in a two-judge bench), stated at [38]–[39]:

I do not accept that the applicant’s culpability should be reduced by reason of the fact that the charges of aggravated sexual assault were not proceeded with. The Court is not aware of the circumstances which motivated that decision and is unable to form any conclusion about the strength or otherwise of the Crown case. However, it is apparent that the applicant was committed for trial. The fact that the applicant believed it necessary to procure others to give false alibi evidence on his behalf suggests a belief in him that, unless this was done, he was at risk of being convicted.

In these circumstances, even if it be relevant, there was no basis for his Honour to conclude that the motive for the offence was to achieve a just result. I do not accept that even if the court was to assume that the applicant was the subject of false allegations, this was a significant mitigating feature. A result obtained by perjured evidence could not be described as just.

In Church v R [2012] NSWCCA 149, the applicant perverted the course of justice by failing to contradict, in sentence proceedings for an assault occasioning actual bodily harm, an assertion by her solicitor that she was suffering from cancer. On appeal against the sentence imposed for the perversion offence, the court found it was not an error for the sentencing judge to consider the hypothetical sentencing outcome had the course of justice not been perverted: Church v R at [23]. The finding that the applicant evaded imprisonment for 12 months, which would have been the appropriate sentence for the assault offence, was an important part of assessing the objective seriousness of the perversion offence: Church v R at [23], [26].

Level of interference in the justice process — stage of proceedings

The offence of perverting the course of justice is not confined to legal proceedings already in existence but can extend to acts done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may be instituted: The Queen v Beckett (2015) 256 CLR 305 at [7].

In R v Finnie and Finnie [2007] NSWCCA 38 at [64], Sully J (with Simpson and Latham JJ agreeing) endorsed the sentencing judge’s approach that an offence intended to influence the grant of bail is not generally as serious as an intended perversion of trial or sentencing proceedings.

In R v Purtell [2001] NSWCCA 21 at [11], Giles JA accepted the Crown’s submission that intending to influence sentencing proceedings was as serious as interference with trial proceedings.

In R v Karageorge (1998) 103 A Crim R 157 at 175, although the court allowed a conviction appeal and ordered a new trial, Levine J, with Sully and Simpson JJ agreeing, expressed a view that:

For myself, I would not regard the obtaining of an adjournment as a perversion of a relatively minor kind: the course of justice must include the efficient management of the Court’s business in respect of which great reliance is placed upon the conduct of the profession. A trial adjourned is, of course, a trial delayed thereby depriving both the Crown and the accused of that which the law strives to attain, namely finality. It prejudices people waiting for their cases to be listed. The course of justice in relation to a particular matter adjourned on the false basis here predicated may cause immense prejudice arising not merely from the fact of delay but its effect upon the memories of all those to be called to give testimony.

In R v Nguyen [2004] NSWCCA 332 at [54], Spigelman CJ rejected the respondent’s submission that encouraging an innocent person to plead guilty could be assessed as a “low” level of seriousness:

Encouraging a person to plead guilty to an offence, which that person did not commit, and thereby allowing a citizen to acquire a criminal record and to suffer criminal punishment is, in my opinion, a significant form of the offence of perverting the course of justice.

See also R v Meissner (unrep, 27/11/92, NSWCCA), where Allen J (with Sully and Ireland JJ agreeing) endorsed the trial judge’s comment: “… to directly interfere with a person’s right to plead not guilty to a criminal charge is to cut the ‘golden thread’. It is to interfere with the most fundamental right that any person has under the law, the right to defend a criminal charge relying upon the presumption of innocence”.

In Allen v R [2008] NSWCCA 11, the applicant had been charged with sexually assaulting his former girlfriend. Emails and a video containing sexually explicit images of the complainant were later sent to a number of people. The applicant said he could stop the circulation of the images if the complainant made a statement that she wanted the charges dropped. The applicant’s counsel argued on appeal that higher sentences for perverting the course of justice should be reserved for those who interfere with justice officials such as judges or police officers. Grove J rejected the submission at [25]:

Each case needs to be assessed in its particular circumstances and, as a generality, the attempt to suborn a complainant, who may succumb, could very well be misconduct more serious than an attempt directed at those whose callings make it more likely that they would not only resist the attempt but report it to authority and thereby ensure that the offender is called upon to answer.

In R v Egan [2013] NSWCCA 196, the respondent was charged with sexual offences and used the complainant’s email address to send emails to himself in an attempt to damage her credibility. The first trial date was vacated while the integrity of the emails was investigated. The court found it was not open to the sentencing judge to regard the offence as “at the low end of the range” given its intention to bring about a miscarriage of justice for the respondent’s own benefit in his trial for serious offences: R v Egan at [74].

[20-155] Common law contempt of court

Last reviewed: November 2024

The common law offence of contempt is aimed at preventing interference in the administration of justice: Director of Public Prosecutions v John Fairfax & Sons Ltd (1987) 8 NSWLR 732 at 739. See also Criminal Trial Courts Bench Book at [1-250]ff; Civil Trials Bench Book at [10-0000]ff; Local Court Bench Book at [48-000]ff.

Civil and criminal contempt

Contempt may be civil or criminal, though the distinction has been criticised as “arbitrary” and “illusory”, and has eroded with common law developments over time: Australasian Meat Industry Employees Union Ltd v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 109; Witham v Holloway (1995) 183 CLR 525 at 534.

Civil contempt takes one form, namely, a breach of court orders or undertakings. Criminal contempt involves an act which objectively has the tendency to interfere with the administration of justice, and can take many forms, including:

verbal abuse directed towards judicial officer (contempt in the face of the court)
interference by publication (sub judice and scandalising contempt)
misconduct by participants in the proceedings
destruction of evidence upon execution of search warrant
refusal to attend on subpoena or give evidence
interference with witnesses
contumacious breaches of court orders.

Civil contempt can become criminal, after it has been proved beyond reasonable doubt for the purpose of punishment, if it involved “contumacious” conduct, that is, conduct involving “deliberate defiance”: see Grocon v Constructions, Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288 per Cavanough J.

Contempt charges are heard in a court’s civil jurisdiction, and civil procedure rules apply: Witham v Holloway at 534. They must be proved beyond reasonable doubt: Witham v Holloway; Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 at [72], [101], [179]; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375 at [23].

The “companion principle”, that is, the prosecution cannot compel the accused to assist it to discharge its onus, is an expression of the accusatorial nature of criminal trials, and does not apply in civil contempt proceedings: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd at [36], [46]–[47], [62]–[64].

See also Criminal Trial Courts Bench Book at [1-250]ff; Civil Trials Bench Book at [10-0000]ff; Local Court Bench Book at [48-000]ff.

Forms of contempt

Contempt in the face of the court

Contempt may be classified as occurring in the face or hearing of the court: see Civil Trials Bench Book, Contempt in the face of the court at [10-0000]. See further Civil Trials Bench Book, Contempt generally at [10-0300] and Criminal Trial Courts Bench Book, Contempt, etc at [1-250]ff.

Contempt by publication

Contempt by publication includes sub judice and scandilising contempt. Sub judice contempt relates to the publication of material which has, as a matter of practical reality, a real and definite tendency to prejudice or embarrass legal proceedings pending in a court at the time of publication: John Fairfax and Sons Pty Ltd v McRae (1995) 93 CLR 351 at 372. Scandalising contempt relates to acts or publications which impair public confidence in the judiciary: Gallagher v Durack (1983) 152 CLR 238.

In Director of Public Prosecutions v Wran (1987) 7 NSWLR 616, the Court of Appeal (in a five-judge bench) said at 638:

… it has long been established that it is a serious contempt of court to make public assertions about the guilt or innocence of an accused which have a tendency to prejudice the fair conduct of an impending trial. It does not matter whether the assertion is of innocence or guilt. Either is capable of affecting a potential juror’s mind and of defeating the fair trial … It must be made plain … that the courts will not tolerate the deliberate intervention of those in positions of authority who deploy their power and prestige in support of assertions of that kind.

See also Gallagher v Durack at 243; Director of Public Prosecutions v Francis (No 2) (2006) SASR 321 at [60]; DPP (Cth) v Besim (No 2) [2017] VSCA 165; and the NSW Law Reform Commission’s review of sub judice contempt, Contempt by publication, Report 100, 2003.

Breach of orders or undertakings

Although a breach of a court order is considered civil contempt, it is dealt with as a criminal contempt if the breach was contumacious. The High Court in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd at 112–113 has noted that “lying behind punishment for a contempt which involves wilful disobedience to a court order, is the very substantial purpose of disciplining the defendant and vindicating the authority of the court”.

Not every intentional disobedience of a court order involves a conscious defiance of the authority of the Court, but wilful contempt in defiance of the court is contumacious contempt: DB Mahaffy & Associates v Mahaffy [2015] NSWSC 1959 at [25]. The Prothonotary of the Supreme Court of NSW v Battye [2017] NSWSC 48 is an example of a wilful and contumacious contempt committed by a solicitor who transferred shares to a third party in breach of a District Court order.

Misconduct against judicial officers by participants in proceedings

In Prothonotary v Wilson [1999] NSWSC 1148, Wood CJ at CL explained at [21] that in the case of a contempt in the face of the court involving a reprisal against a judge:

The gravamen of the offence lies not in protecting the personal dignity of the judge who may be the object of an assault or personal attack but of protecting the public from the mischief that will incur if the authority of the courts is undermined or impaired.

Several cases and sentences involving reprisals against judges are referred to in Principal Registrar of Supreme Court of NSW v Drollet [2002] NSWSC 490 at [19]–[25], and also discussed in the paper by the Honourable Justice Whealy, “Contempt: some contemporary thoughts”, 2007.

Refusal to attend on subpoena or give evidence

In Registrar of the Court of Appeal v Raad (unrep, 9/6/1992, NSWCA), Kirby P stated at 14:

The refusal to answer questions which are relevant and admissible strikes at the very way in which justice is done in the courts of this country. It undermines the rule of law observed in our society. As this Court said in Gilby, the refusal to be sworn, or once sworn to give evidence, is a failure to discharge the obligation which the person owes as a member of the community ….

A refusal to be sworn or affirmed, or to answer questions, is a “very serious” contempt: Principal Registrar of the Supreme Court of NSW v Jando at [19]; R v Razzak [2006] NSWSC 1141 at [39]–[44]; In the matter of Steven Smith (No 2) [2015] NSWSC 1141 at [49]; Prothonotary of Supreme Court of NSW v Patrick (a pseudonym) at [44]–[45]. It is not unusual for persons who wilfully disobey a subpoena to attend court as a witness to receive a custodial sentence, especially in criminal proceedings: Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 315.

In Registrar of the Court of Appeal v Gilby (unrep, 20/8/1991, NSWCA), cited in Field v NSW Crime Commission [2009] NSWCA 144 at [21], the Court identified the following factors to be considered when punishing for a contempt involving a deliberate refusal to give evidence:

the objective seriousness of the contempt
whether the contemnor was aware of the consequences of what they proposed to do
whether the contempt was committed in the context of serious crime
whether the contempt was motivated by fear of harm should evidence be given
whether the contemnor had received a benefit by indicating an intention to give evidence.

Similar and additional factors were identified in Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185 which have been applied in subsequent cases: Principal Registrar of Supreme Court of NSW v Drollet at [17]; Anderson v Hassett (No 2) [2007] NSWSC 1444 at [6]; Prothonotary of Supreme Court of NSW v Patrick (a pseudonym) at [21].

Dealing with contempt

Purging contempt

Civil contempt may be purged by apology, payment of compensation/reparation and/or payment of costs: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; Evans v Citibank Ltd [2000] NSWSC 1017. A contemnor may be given a further opportunity to comply with a court order or undertaking to void a formal finding and penalty: Globaltel Australia Pty Ltd v MCI Worldcom Australia Pty Ltd [2001] NSWSC 545. The same opportunity should generally be given to a contemnor who refuses to give evidence: Smith v R (1991) 25 NSWLR 1. If a court is satisfied that a contempt has been purged it may discharge the contemnor without making a formal charge: Evans v Citibank Ltd.

Referrals to the Supreme Court

The Local and District Courts have statutory powers to deal summarily with contempt “in the face of or hearing of the court” or to refer allegations of contempt to the Supreme Court: Local Court Act 2007, s 24; District Court Act 1973, ss 199, 203.

In determining whether to deal with the contempt summarily or refer the matter, the principles of natural justice apply and the alleged contemnor should be given an opportunity to make submissions: Prothonotary of the Supreme Court of NSW v Dangerfield [2016] NSWCA 277 at [77]; see also Prothonotary of the Supreme Court of NSW v Chan (No 23) [2017] NSWSC 535 at [75].

See also Local Court Bench Book at [48-060] Referral to the Supreme Court; Criminal Trial Courts Bench Book at [1-270] Why transfer — the court as prosecutor, judge and jury.

Review and discharge in the Supreme Court

Part 55, r 14 confers power on the Supreme Court to “revisit and review” a decision to imprison a person for contempt in light of some change in the relevant circumstances: Menzies v Paccar Financial Pty Ltd (2016) 93 NSWLR 88 at [17]–[20]. It confers power in circumstances where the court fixing punishment by a term of imprisonment might otherwise be functus officio. The rule is designed to permit discharge short of the service of a specified term: Menzies v Paccar Financial Pty Ltd at [16]; Young v Registrar, Court of Appeal (No 3) (1993) 32 NSWLR 262 at 282–283.

Discharge is to permit the convicted contemnor to ask for clemency, demonstrate contrition, and establish that the punishment suffered already is enough to vindicate the court’s authority: Menzies v Paccar Financial Pty Ltd at [18].

Sentencing for contempt generally

Penalties

Contempt is a common law offence and therefore has no specific maximum penalty: Wood v Galea (1997) 92 A Crim R 287 at 290. An offender dealt with in the District or Local Courts for contempt in the face of the court may receive a fine not exceeding 20 penalty units or imprisonment not exceeding 28 days: District Court Act 1973, s 199(7); Local Court Act 2007, s 24(1). In the Children’s Court, the maximum penalty for contempt in the face of the court is 10 penalty units or imprisonment for 14 days: Children’s Court Act 1987, s 21(1). See also Civil Trials Bench Book at [10-0000].

Maximum penalties for statutory offences similar to common law contempt charges may provide guidance: see Attorney General (NSW) v Whiley (1993) 31 NSWLR 314 for an example.

The inherent powers of the Supreme Court are of such breadth that orders can be fashioned which have the same practical result as penalties provided for in the Crimes (Sentencing Procedure) Act 1999 and the Children (Criminal Proceedings) Act 1987, including the imposition of a bond or recognisance at common law, with conditions, and the suspension of punishment on terms: In the matter of KL [2024] NSWSC 1334 at [31]–[35]; Council of the NSW Bar Association v Rollinson [2022] NSWSC 407 at [86]–[87].

Application of sentencing legislation

The Crimes (Sentencing Procedure) Act does not apply when sentencing for contempt: Dowling v Prothonotary of Supreme Court of NSW (2018) 99 NSWLR 229 at [46]–[54]. However, the statutory considerations in ss 3A, 5(1) and 21A Crimes Sentencing Procedure Act generally reflect common law sentencing principles, which remain applicable: Prothonatory of the Supreme Court of NSW v Patrick (a pseudonym) at [17]. In relation to sentencing a young person for contempt, the Children (Criminal Proceedings) Act does not apply, however many of the protections afforded to children in that Act exist under the common law: In the matter of KL at [26]–[27]; Dowling v Prothonotary of Supreme Court of NSW at [45].

The term “Court” in the Crimes (Sentencing Procedure) Act is not apt to include a court exercising civil jurisdiction: Dowling v Prothonotary of Supreme Court of NSW. This limits courts to forms of punishment set out in the Supreme Court Rules 1970 including committal to a correctional centre (or a juvenile detention centre), fines and sequestration (for a corporation), which may be suspended to compel good behaviour or performance of terms of a security: Supreme Court Rules 1970, Pt 55, r 13; In the matter of KL at [35]. This merely confirms the court’s sentencing power and does not exhaust it: Registrar of the Court of Appeal v Maniam (No 2) at 314; Attorney General (NSW) v Whiley at 320; Principal Registrar of the Supreme Court of NSW v Jando (2001) 53 NSWLR 527 at [37].

Principles

For summaries of the sentencing principles for contempt, see In the matter of Steven Smith (No 2) at [36]–[41]; Council of NSW Bar Association v Rollinson (No 2) at [60]–[74]; Wood v Staunton (No 5) (1996) 86 A Crim R 183 at 185.

Range of seriousness

The nature of the contempt itself and its consequences vary greatly in different cases: Wood v Galea at 277. In Registrar of the Court of Appeal v Maniam (No 2) at 314, Kirby P identified classes of cases relevant to sentencing an offender guilty of contempt including technical, wilful and contumacious contempt:

For technical contempts, the Court will usually accept an apology from the contemnor. It may order that the contemnor pay the costs of the proceedings brought to uphold the authority of the courts of law … A similar approach is sometimes taken to contempts which are more than technical and which, although wilful, are not found to have been deliberate …

Regarding contumacious contempt, “the most serious class of contempt”, his Honour continued:

This class of contempt is reserved to cases where the behaviour of the contemnor has been shown to be aimed at the integrity of the courts and designed to degrade the administration of justice … In [such] cases, the court may proceed to punish the convicted contemnor by the imposition of a custodial sentence or a fine or both.

No tariff of sentences

In Wilson v The Prothonotary [2000] NSWCA 23 at [42] Heydon JA remarked: “there is little point in comparing sentences in a field of criminal conduct which is rarely committed”. Penalties imposed in other contempt cases, without regard to all of its features, provide limited guidance when sentencing for contempt: Principal Registrar of the Supreme Court of NSW v Jando at [56]; see also R v Razzak at [89].

[20-158] Disrespectful behaviour in court

An accused person, defendant, party to, or person called to give evidence in proceedings before the court is guilty of an offence if they intentionally engage in behaviour in the court during the proceedings and that behaviour is disrespectful to the court or presiding judge: Local Court Act 2007, s 24A; District Court Act 1973, s 200A; Supreme Court Act 1970, s 131; Land and Environment Court Act 1979, s 67A; Coroners Act 2009, s 103A.

The offence is punishable by 14 days imprisonment or 10 penalty units, or both. Proceedings are to be dealt with summarily before the Local Court or, if committed in the Supreme Court, the Supreme Court’s summary jurisdiction: see provisions above.

The offence does not affect any power with respect to contempt. Proceedings for contempt may be brought in respect of behaviour that constitutes a “disrespectful behaviour” offence, but a person cannot be prosecuted for both contempt and the offence for essentially the same behaviour.

[20-159] Further reading

Last reviewed: November 2024

Local Court Bench Book, [48-000] Contempt of court and disrespectful behaviour in court.

Criminal Trial Courts Bench Book at [1-250]ff.

Civil Trials Bench Book at [10-0000]ff.

D Kell SC and D Norris, “Developments in penalties for contempt by refusal to give evidence”, (2024) 2(1) Judicial Quarterly Review 1.

N Adams and B Baker, “Sentencing for contempt of court”, National Judicial College of Australia and the Australian National University Sentencing Conference, 29 February 2020, Canberra.

A Whealy, “Contempt: some contemporary thoughts” (2008) 8 TJR 441.

New South Wales Law Reform Commission, “Contempt by publication”, Report 100, 2003.

[20-160] Interference with judicial officers, witnesses, jurors etc: Pt 7 Div 3 Crimes Act 1900; s 68A Jury Act 1977

Section 323 — Influencing witnesses and jurors

Section 323(a) provides a maximum penalty of seven years for, inter alia, intending to cause a witness in any judicial proceeding to give false evidence, withhold true evidence, not to attend as a witness, or not to produce anything in evidence pursuant to a summons or subpoena. The essence of a s 323(a) offence is that it strikes at the integrity of the justice system and so some form of custodial sentence is normally appropriate: Warby v R [2007] NSWCCA 173 at [25]; R v Burton [2008] NSWCCA 128 at [101]; Asplund v R (Cth) [2014] NSWCCA 237 at [62].

Section 323(b) provides a maximum penalty of seven years for intending to influence the conduct of a juror in any judicial proceedings.

Section 324 is an aggravated form of ss 321–323, punishable by a maximum of 14 years, where the offence is committed with the intent of procuring a conviction or acquittal for a “serious indictable offence”.

It is an error to sentence an offender, who pleads guilty to an offence under s 323(a), for the more aggravated offence under s 324. Section 324 “constitutes a distinct and greater offence which must be specifically alleged in the indictment”: Warby v R, above, at [18].

But, in assessing the objective seriousness of an offence under s 323(a), it is an error to have regard to the absence of a fact which, if it were present, would constitute a different and more serious offence, such as an offence of threatening or intimidating a juror under s 322(a): R v Burton, above, at [89].

Where an offence under s 323(a) is committed in the context of domestic violence by an offender who wants to dissuade criminally the victim from giving evidence, there is a need for a significant element of general deterrence: R v Burton at [105]. A correct exercise of sentencing discretion required the court to have express regard to the need for general and specific deterrence and denunciation of domestic violence offences: R v Burton at [107], Hiron v R [2007] NSWCCA 336 at [32], R v Hamid [2006] NSWCCA 302 at [86]. Additionally, given that victims of domestic violence often — and contrary to their interests — forgive their attackers (at [104]), a court should cautiously approach a victim’s expressions of forgiveness and requests for a lenient sentence: at [102], [105].

In Asplund v R (Cth), there was an added element of seriousness to an offence under s 323(a) where the witness influenced by the offender was his 17-year-old son, as such offending had a traumatic effect on the witness and constituted a breach of trust: Asplund v R (Cth) at [62].

In sentencing for an offence under s 323(b), it is relevant to consider the nature of the intention to influence a juror. In the unusual case of R v Sultan [2005] NSWCCA 461, the applicant approached the husband of a juror during his trial for a break and enter offence. He asked that the juror “listen to the evidence carefully”. Grove J (with Sully and Howie JJ agreeing) accepted that the applicant’s conduct was merely “an exhortation to perform the duty of the juror”: at [17]. Grove J observed at [16]:

The intention of the legislature in enacting s 323(b) was clearly to proscribe any act intended to influence a jury in any way whether benign or not. But it does not derogate from acknowledgement of that intention to assess the seriousness of an offence against the presence or absence of sinister connotation.

See also s 68A Jury Act 1977 below; R v Laws (2000) 50 NSWLR 96.

Section 326 — Reprisals against judges, witnesses, jurors etc