DISTRICT COURT OF QUEENSLAND
CITATION: R v Turner (No. 2) [2020] QDC 281 PARTIES: THE QUEEN
v TURNER
(defendant)
FILE NO/S: 83 of 2020 DIVISION: Criminal PROCEEDING: Trial ORIGINATING COURT: District Court at Mackay
DELIVERED ON:
10 November 2020
DELIVERED AT: Mackay HEARING DATE: 4 – 5 November 2020 JUDGE: Sheridan DCJ ORDER: 1. Application by the Defence for ruling of no case to answer with respect to Count 1 is dismissed.
2. Application to strike out paragraphs 14 and 15 of Exhibit 2 in the proceedings is dismissed.
CATCHWORDS: CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – PRIMA FACIE CASE OR CASE TO
ANSWER – where defendant charged with offences against the Crimes Act 1914 (Cth) – where defendant has submitted in respect of count 1, attempting to pervert justice contrary to s 43 Crimes Act 1914 (Cth), there is no case to answer – where defence submit that the conduct relied on by the Crown is not more than merely preparatory conduct – whether there is a case to answer with respect to count 1 – whether acts relied upon by the Crown are more than merely preparatory
Crimes Act 1914 (Cth), s 43
Davey v Lee [1967] 2 All ER 423, considered
Director of Public Prosecutions v Stonehouse [1978] AC 55, applied
Doney v The Queen (1990) 171 CLR 207, cited
Holliday v The Queen [2016] ACTCA 42, applied
Inegbedion v R [2013] NSWCCA 291, considered
Meissner v The Queen (1995) 184 CLR 132, applied
Queen v Senthilvadevel [2018] NSWDC 33, consideredCOUNSEL: B Power for the Crown.
S C Holt QC and A O’Brien for the defendant.
SOLICITORS: Commonwealth Director of Public Prosecutions for the Crown.
Bosscher Lawyers for the defendant.
Introduction
On 27 March 2020 an indictment was presented against the defendant, Ms Turner, charging her with one count of attempting to pervert justice pursuant to s 43 of the Crimes Act 1914 (Cth) and three counts of giving false testimony pursuant to s 35 of the Crimes Act.
[2]
[3]
[4]
Upon being arraigned in the presence of the jury on Monday, 2 November 2020, the defendant pleaded not guilty to each count.
At the conclusion of the Crown case, through her counsel, the defendant has submitted that in relation to Count 1 there is no case to answer.
I heard argument, including review of written submissions and refused the application; indicating that I would give my reasons at a later time if that was convenient. I was informed that the defendant would not be prejudiced by this course. These are my reasons; though publication of these reasons is prohibited until after the verdict, other than to the parties.
Nature of the Offence
The offence charged in Count 1 is that Ms Turner attempted to prevent justice by assisting Markis Turner to flee Australia prior to his trial in the Supreme Court and to remain at large thereafter. The Crown relies on one or more of 16 “acts or omissions” as contained in particulars as constituting the relevant conduct, namely:
1.On or about 16 May 3013, the defendant became a director and secretary for Rural Trade Services Pty Ltd (renamed from Markis Turner Investments Pty Ltd on 15 Amy 2013) after Markis Turner had resigned from those roles;
2.In July 2013, the defendant travelled with Markis Turner to Cairns to inspect the Shangri La prior to its purchase;
3.On 17 July 2013, the defendant purchased the sailing yacht Shangri La, using funds from the defendant’s CBA account and a bank cheque obtained by the defendant;
4.On 17 July 2013, the defendant registered the sailing yacht Shangri La in the name of Rural Trade Services Pty Ltd (the company of which she was director and secretary), with the defendant singing the documents which were registered with the Australian
Maritime Safety Authority (‘AMSA’);
5.Between August 2014 and June 2015, the defendant paid for the storage of the Shangri La at the Mackay Marina and the Palm Street Boatyard;
6.Between August 2014 and November 2016, the defendant paid for the insurance of the Shangri La;
7.On 1 May 2015, the defendant signed an application for the voluntary closure of registration of the Shangri La, falsely stating that the yacht had been “broken up”;
8.On 1 June 2015, the defendant arranged for the launching of the Shangri La on 15 June 215 from its storage on land at the Palm Street Boatyard;
9.On 7 July 2015, the defendant purchased an alternator regulator for the Shangri La;
10.Between 30 June 2015 and 2 August 2015, the defendant withdrew cash from her CBA account which was provided to Markis Turner or otherwise used to aid him to flee from Australia and to remain at large thereafter;
11.Between 5 August 2015 and 21 August 2015, the defendant withdrew cash from her husband’s CBA account which was provided to Markis Turner or otherwise used to aid him to flee from Australia and to remain at large thereafter;
12.Between 22 July 2015 and 1 August 2015, the defendant travelled to Poland with
Markis Turner’s wife M Wiacek and her and Markis Turner’s children, thereby assisting in the removal of the defendant’s wife and children from the jurisdiction;
13.From 15 August 215, and until 18 February 2016, the defendant did not report Markis Turner as missing when she was surety for his bail and signed surety undertaking in which she acknowledged her obligations as a surety to ensure Markis Turner attended his trial;
14.On 14 October 2015, the defendant sore an affidavit in which she stated that, “I am of the view that MST [Markis Turner’ has committed suicide.” The defendant’s affidavit deliberately omitted to inform he Court of the existence of the sailing yacht Shangri La and that the Shangri La had disappeared at the same time as Markis Turner when this as material information which could have aided in Markis Turner’s apprehension;
15.On 18 February 2016, the defendant reported Markis Turner as missing to the police, but when doing so she deliberately did not inform police of the existence of the sailing yacht Shangri La and that the Shangri La had disappeared at the same time as Markis Turner when this was material information which could have aided in Markis Turner’s apprehension and she did so to aid Markis Turner in his continuing avoidance of detection and apprehension; and
16.On 21 April 2016, the defendant gave evidence in the Supreme Court falsely claiming that she believed that Markis Turner had died by suicide and did so to aid him in his continuing avoidance of detection and apprehension.
Section 43 of the Crimes Act provides:
“Attempting to pervert justice
(1)A person commits an offence if:
(a)the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and
(b)the judicial power is the judicial power of the Commonwealth.
Penalty: Imprisonment for 10 years.
(2)Absolute liability applies to the paragraph (1)(b) element of the
offence.
Note: For absolute liability, see section 6.2 of the Criminal Code.
(3)For the person to be guilty of an offence against subsection (1), the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(4)A person may be found guilty of an offence against subsection (1) even if doing the thing attempted is impossible.”
In Meissner v The Queen[1] Brennan, Toohey and McHugh JJ described the elements of the offence in the following passage:
[1] (1995) 184 CLR 132, 140-141.
“A person is guilty of attempting to pervert the course of justice when that person engages in conduct that has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice. Attempting to pervert the course of justice is a substantive offence. Whether or not conduct succeeds in perverting the course of justice is irrelevant. It is the tendency of the conduct that is decisive.
…
The two elements of the offence of attempting to pervert the course of justice are conduct which has the proscribed tendency and an intent that the course of the justice be perverted.” (Citations omitted).
For an offence under s 43, to those two elements must be added two considerations:
1.The attempt to pervert the course of justice must be in relation to the judicial power of the Commonwealth; and
2.The conduct must have been “more than merely preparatory” to the commission of the offence.
The Submissions
The focus of the submissions on behalf of the defendant are that each of the acts as alleged by the Crown as amounting to the relevant conduct, even if all acts or omissions were accepted by the jury, are not more than merely preparatory conduct. It is submitted that the conduct is not immediately connected with Markis Turner’s physical acts of fleeing.
In Holliday v The Queen,[2] Murrell CJ observed that whether conduct is or is not
“merely preparatory” will depend upon the nature of the substantive offence to which the attempt relates. Her Honour, then borrowing from Odgers,[3] referred to various tests that have been applied to determine whether conduct has progressed far enough to warrant liability for attempt, “tests such as “substantial act”, “acts of perpetration rather than preparation” and “immediately and not remotely connected with the commission of the offence”.”[4]
[2] [2016] ACTCA 42, 13 [50] (Holliday).
[3] Stephen Odgers, Principles of Federal Criminal Law (Law Book, 3rd Ed, 2015) [11.1.150].
[4] Holliday, 13 [51].
Section 43 provides that the determination of the question as to whether the conduct is “more than merely preparatory” is a matter for the tribunal of fact to decide. It is a jury question. The issue in this application is whether there is enough evidence capable in law of supporting a conviction by a jury.[5]
[5] Doney v The Queen (1990) 171 CLR 207, 212-213.
In support of the no case submission, it was submitted on behalf of the defendant that the particulars cannot rise above conduct that is merely preparatory to the substantive offence of perverting the course of justice. It was submitted that the conduct alleged against Ms Turner never crossed “the Rubicon and burnt [her] boats”; borrowing a phrase used by Lord Diplock in Director of Public Prosecutions v Stonehouse.[6]
[6] [1978] AC 55, 68 (Stonehouse).
It was submitted that there needed to be an immediacy of connection, which it was submitted could have included driving Markis Turner to the ocean sailing yacht the “Shangri La” (the Yacht) when he was leaving or arranging for the Yacht to be put
[14]
[15]
[16]
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in the waters for Markis Turner closely before he set off. It was submitted that the conduct as particularised falls well short of that.
Particulars 13, 14 and 15
Further, in considering the particulars of the conduct, it was submitted that particulars 13, 14 and 15 were bad at law as each relies on alleged omissions and it was submitted the Commonwealth Criminal Code does not criminalise an omission to do an act in the way in which the Crown now contends.
Particular 13 relies on the defendant having an obligation as a surety to report Markis Turner as missing. Under the surety regime created by the Bail Act 1980 (Qld) such an obligation is not imposed. In its submissions, the Crown conceded that this particular should be struck out.
Particulars 14 and 15 fall into a different category. Both are expressed to rely upon an omission by the defendant to inform the court and the police respectively of certain facts; namely about the Yacht and it having disappeared. However, both omissions are alleged in the context of the defendant swearing an affidavit as to her belief that Markis Turner had committed suicide and her informing police he was missing. Although expressed as an omission, it is clear that the allegation is that the statements made by the defendant were misleading; as not containing the whole truth. Where a defendant does a positive act, the defendant has an obligation to act honestly and the failure to do so, if accepted by the jury, could be relevant conduct for the purpose of the offence.
Analogous Cases
The defence relied upon the decision of the House of Lords in Stonehouse. The defendant in that case insured his life in England for the benefit of his wife, and then travelled to Miami and faked his death. He was subsequently located in Australia and brought back to England and charged with attempting to obtain property by deception. It was conceded by the Crown in that case that the mere taking out of the insurance policy was an act merely preparatory;7 and not sufficiently proximate to constitute an attempt.8 In their written submissions, the defence argued that the conduct of the defendant in this case is analogous to the taking out of the insurance policy in Stonehouse.
The conduct of the defendant alleged in the present case is, at the commencement, to do with the means by which Markis Turner fled Australia; namely on board the Yacht. Particulars 1 to 9 relate to the defendant’s role in the purchase, registration, storage, launching and equipping of the Yacht. Particulars 10 and 11 are to do with the defendant’s role in Markis Turner having funds to escape and particular 12 giving him the freedom to leave (with his family back in Poland). Particulars 14 to 16 concern the defendant’s acts to avoid Markis Turner being detected. The alleged acts are all capable of being regarded as immediately connected with preventing justice and not having any other reasonable purpose.
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8
Stonehouse, 86.
Stonehouse, 68.
6
A more relevant analogy within the Stonehouse case is whether the faking by the defendant there of his own death was merely preparatory to the attempted crime. The defendant in Stonehouse argued that it was merely preparatory. The Court of Appeal and the House of Lords regarded the act as so obviously sufficiently proximate to constitute an attempt.
Reference was also made to the decision in Queen v Senthilvadevel.9 In that case an application had been made for a verdict by direction on the grounds that the only activity which might be described as the “actus reus” was merely preparatory to the commission of the offence and therefore was not of sufficient proximity to the offence to constitute an attempt. The defendant had agreed with another to take delivery of a consignment at his home, it being accepted that the consignment was intended to contain border controlled drugs. The consignment was in fact intercepted by the Customs Service prior to its delivery. The evidence was that the defendant had stayed at home to receive the consignment, or at times when he could not be at home had deputed one of his parents to receive it on his behalf, and he had stayed at home at relevant times which would have allowed sufficient time for the despatch of the consignment to arrive at his home. In refusing the application for a verdict by direction, the court commented that the only purpose of the activity of the defendant of staying at home and of requiring one of his parents to be at home was to receive the consignment. It was more than preparatory to the offence.
In the course of giving judgment, the court referred to statements by Rothman J, with whom Hoeben CJ at CL and McCallum J concurred, in Inegbedion v R:10
“16.In order to prove that the accused is guilty of an attempt to commit a particular offence, the Crown must first prove, beyond reasonable doubt,that the accused intended to commit the crime, which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which makes those acts criminal.
17.Over and above the proof of an intention to commit a crime alleged, the Crown must also prove beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission.”
The court observed, that the statements by Rothman J had taken up what was said by Lord Parker CJ in Davey v Lee:11
“What amounts to an attempt has been described variously in the authorities, and, for my part, I prefer to adopt the definition given in Stephen’s Digest of Criminal Law (5th ed 1984) ART.50 where it says that: ‘an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted’. As a general statement that seems to me to be right, although it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depends on the facts of each case. A helpful definition
9
10
11
[2018] NSWDC 33.
[2013] NSWCCA 291.
[1967] 2 All ER 423, 425.
is given in para 4104 in Archbold’s Pleading Evidence and Practice (36 ed), where it is stated in this form: ‘it is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not remotely connected with the commission of it, and the doing of which cannot be reasonably be regarded as having any other purpose than the commission of the specific crime’.”
Conclusion
The question is whether the acts alleged against the defendant could be regarded as more than merely preparatory. As I have indicated, in my view the conduct could be so regarded. I consider that the question as to whether the conduct as alleged was
“more than merely preparatory” is appropriately left to the jury to be determined.
Postscript
After refusing the application, both counsel presented a set of particulars deleting the reference to omissions in the opening paragraph of the particulars and amending paragraphs 14 and 15. Paragraphs 14 and 15 were amended to read as follows:
14.On 14 October 2015, the defendant swore an affidavit in which she stated that, “I am of the view that MST [Markis Turner] has committed suicide” which was a false statement of her belief at that time.
15.On 18 February 2016, the defendant reported Markis Turner as missing to the police, stating that she had a belief that he had gone missing, gone out west working for cash, but also believed he may have been suicidal and then taken his life which were false statements of her belief at that time.”
The amendments satisfy the concerns expressed during argument in relation to the reliance upon, and the use of, the word “omissions”; given that it is the acts of the defendant which are relevant.