The first defendant, Mr Roger Rogerson was a member of the New South Wales Police Force. In May 1985, he and the second defendant, Mr Morris Nowytarger arranged for the former to deposit $110,000 in two bank accounts with the National Australia Bank under false names. A woman, known under the pseudonym ‘Miss Jones’, later gave evidence alleging that on or about 14 May 1985 she gave Mr Rogerson a large sum of money in exchange for a bag which contained white powder in plastic bags. No evidence was placed before the District Court of New South Wales about what
On 1 July 1985, Messrs Rogerson and Nowytarger withdrew the funds and closed the accounts. While doing so, they were photographed by the bank’s security cameras. On 11 or 12 July 1985, another police officer told Mr Rogerson that he had been photographed ‘with a criminal’. Following this conversation, but before 19 July 1985, Mr Rogerson and the third defendant, Dr Nicholas Paltos, met the fourth defendant, Mr Ross Karp. Mr Rogerson told Mr Karp that he had money in ‘a bank account or bank accounts’ in false names with a friend and that he needed ‘to explain how the moneys arrived in the account’. The three defendants were later joined by Mr Nowytarger. The four men agreed that Mr Karp would prepare a fraudulent sale agreement backdated to December 1983 to show that Mr Karp had paid $60,000 to Messrs Rogerson and Nowytarger for the sale of a Bentley car.
On 16 July 1985, a detective inspector of the New South Wales Police Force commenced an investigation with the purpose of determining whether Mr Rogerson had breached any departmental regulation or had committed any criminal offence in relation to the possession of the $110,000 he had been photographed withdrawing. Mr Rogerson was interviewed by the inspector on 4 October 1985 and asserted that $60,000 of the money had come from the sale of the Bentley to Mr Karp and that about $16,000 of the money had been paid to him for repairing a motor vehicle owned by Mr Nowytarger.
On 10 December 1985, Mr Nowytarger visited Mr Karp and asked him if he was going to ‘stick to the story as agreed’. Mr Nowytarger was later interviewed by police officers in March 1986 and maintained that the sale agreement was genuine. Mr Paltos declined to answer questions when interviewed by the police.
AustraliaMr Karp pleaded guilty to the charge of conspiring to pervert the course of justice. Messrs Rogerson, Nowytarger and Paltos all pleaded not guilty. On 2 March 1990 a jury found all three co-defendants guilty of conspiring to pervert the course of justice and they were subsequently sentenced to terms of imprisonment. The terms of these sentences and the sanctions ordered against Mr Karp were not disclosed on the face of the available material.
Supreme Court of New South Wales (Court of Criminal Appeal)
Messrs Rogerson, Nowytarger and Paltos appealed against their convictions on a number of grounds. The appeal was upheld by the Court of Criminal Appeal on the ground that the offence of conspiracy to pervert the course of justice was not established by the Crown. The Court held that before the charges could be made out, the Crown had to show that some crime or suspected crime had been committed and that the conspiracy was entered into in order to frustrate the prosecution brought in respect of such crime.
The Crown’s appeal against the decision of the New South Wales Court of Criminal Appeal was dismissed by the High Court of Australia. In reaching its decision, the High Court examined what the Crown was required to prove for the offence of conspiracy to pervert the course of justice. The High Court held that the ‘course of justice’, for the purposes of the offence of conspiracy to pervert the course of justice, was not confined to justice as administered by the orthodox court system as such. However, the members of the High Court unanimously held that investigations by police for the purpose of ascertaining whether or not a crime has been committed do not themselves form part of the course of justice. Mason CJ held that ‘the course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings.’
Nevertheless, the High Court held that acts taken before court or tribunal are commenced, such as interference with a police investigation, could still constitute an attempt to pervert the course of justice if the act has a ‘tendency to frustrate or deflect a prosecution or disciplinary proceeding’ that the accused contemplates may possibly be instituted. This is so whether or not the prosecution or disciplinary proceeding has been considered by the police or relevant law enforcement agency. An agreement to commit an act with a tendency to frustrate or deflect a prosecution or disciplinary proceeding can likewise constitute a conspiracy to pervert the course of justice.
With respect to the mens rea of the offence of conspiracy to pervert the course of justice, the High Court held that ‘it is necessary to prove an agreement to do an act which the conspirators either know will have a manifest tendency to pervert the course of justice or which the conspirators intend to have such an effect.’ In situations such as the instant case where the Crown seeks to rely on inference to establish that the conspirators intended to pervert the course of justice by committing an act which tends to mislead the police in their conduct of an investigation into a possible offence, Brennan and Toohey JJ held that:
'the evidence must be capable of supporting at least — (1) an inference that the conspirators believed that the police might invoke the jurisdiction of a court or of some competent judicial authority or might invoke that jurisdiction unless the relevant act deflected them; and (2) a further inference that the conspirators either knew that the relevant act would have a manifest tendency to pervert the course of justice in a relevant respect or intended that the act should have that effect. It is not sufficient for the Crown to prove merely an intention to deceive the police.'
The question for the High Court was whether the evidence in the case was capable of supporting a conviction for conspiracy to pervert the course of justice. A majority of the High Court held that the jury were entitled to conclude beyond reasonable that Mr Rogerson entered into an agreement to produce the fraudulent sale agreement for the purpose of deceiving the police about the circumstances in which the money had been obtained, deflecting them from instituting criminal proceedings in relation to the money, and for use as evidence in any criminal proceedings against him. The evidence therefore supported a conviction against Mr Rogerson. There was also evidence that Mr Paltos knew that this was the purpose of the sale agreement. In respect of Mr Nowytarger, the Court found that the evidence was insufficient to prove the requisite knowledge and intention.
McHugh J, dissenting, held that unless the judicial proceedings are identified, it cannot be proved that conduct of an accused has the tendency to affect the course of justice in judicial proceedings. His Honour would have quashed all of the respondents’ convictions on the basis that the prosecution had failed to identify the judicial proceedings to which the charges of conspiracy to pervert the course of justice related. The prosecution did not lead evidence as to the crime, or the category of crime, in question.
Deane J took the view that the appeal concerned questions of the corrections of factual conclusions and did not involve any important question of general principle and accordingly refused to grant special leave to appeal.
By a majority of 3:2, the court overturned the decision of the Court of Criminal Appeal which quashed the convictions of Messrs Rogerson and Paltos but upheld its decision quashing the conviction of Mr Nowytarger.
Before being dismissed from the New South Wales police service, Mr Rogerson had been a high ranking police detective, working on a number of high-profile cases and had been given a number of awards for bravery. In 1981 Mr Rogerson shot and killed a drug dealer in the course of an arrest. A jury declined to find that the shot was fired in self-defence. In the mid-1980s Mr Rogerson was also convicted of supplying heroin but his conviction was quashed on appeal. In 1985 he was found not guilty of attempting to bribe drug squad detective. In 1989 he was charged with conspiring to murder the same detective but was acquitted. At the time of writing, Mr Rogerson is awaiting trial for the drug-related murder of Sydney student Jamie Gao in May 2014.
In 1986 Mr Paltos was convicted of smuggling cannabis into Australia worth AUD 45 million.
District Court of New South Wales
R v Rogerson (1992) 174 CLR 268; [1992] HCA 25
R v Rogerson (1990) 51 A Crim R 359
The High Court’s decision in this case clarified the elements that must be established in order to prove an offence of conspiring to pervert the course of justice. A summary of the High Court’s decision is set out above. Additionally, Brennan and Toohey JJ gave a number of examples of the ways in which offences of perverting the course of justice can be committed:
‘The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice. An act which effects any such impairment is the actus reus of a perversion of the course of justice. An agreement that an act be done which has such an effect and which is not otherwise justified in law is the actus reus of a conspiracy to pervert the course of justice.’