R v Von Cork (Norma), Moore (Christopher) et Al

• Jurisdiction: Jamaica
• Judge: FORTE, P: , LANGRIN J.A.: , PANTON, J.A. , FORTE. P:
• Judgment Date: 13 May 2002
• Neutral Citation: JM 2002 CA 14
• Judgment citation (vLex): [2002] 5 JJC 1301
• Court: Court of Appeal (Jamaica)
• Date: 13 May 2002

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE FORTE, P THE HON. MR. JUSTICE LANGRIN, J.A THE HON. MR. JUSTICE PANTON, J.A

R.

V.

NORMA VON CORK

CHRISTOPHER MOORE

MORRIS THOMPSON

RADCLIFFE ORR

R.N.A. Henriques, Q.C., Miss Norma Linton, Q.C., Delano Harrison, Q.C., George Soutar and Patrick Bailey for Appellants

Brian Sykes, Acting Senior Deputy Director of Public Prosecutions and Mrs. Nadine Guy, Crown Counsel for the Crown

CRIMINAL LAW - Conspiracy - Conspiracy to pervert the course of justice - Whether the indictment disclosed an offence known to law - Whether the indictment was correct in law

FORTE, P:

1 The appellants were convicted in the Corporate Area Resident Magistrate's Court by Her Honour Almarie Haynes for the offence of conspiracy to pervert the course of justice. They were sentenced to varying sentences as follows:

Norma Von Cork, Maurice Thompson, Radcliffe Orr and Clive Ellis twelve (12) months imprisonment at hard labour.

Christopher Moore ten (10) days imprisonment at hard labour.

2 The indictment upon which they were charged is the subject of complaint by all the appellants, and consequently it is set out hereunder, for easier understanding of the gravamen of their complaint. It reads as follows:

"Statement of Offence

Conspiracy to pervert the course of public justice.

Particulars of Offence

Norma Von Cork, Christopher Moore, Morris Thompson, Radcliffe Orr and Clive Ellis on divers days between the 1 ^st day of September, 1997 and the 31 ^st day of October, 1997 in the parish of Manchester conspired together and with Ron McLean, and other persons to pervert the course of public justice by causing the said Radcliffe Orr to enter a false plea of guilty to the charges of Possession of Ganja, Dealing in Ganja, Attempting to Export Ganja and Conspiracy to Export Ganja in order to cast doubt on the validity of the convictions of Brian Bernal and the said Christopher Moore, intending thereby to pervert the course of public justice."

3 The attack on the indictment was raised in three ways:

• 1. That it discloses no offence known to law, that is to say, "by perverting the course of public justice in order to cast doubt on the validity of a conviction."

• 2. The common law offence of perverting the course of public justice is well-settled law, and its ambit circumscribed. The various acts or activities that constitute the offence have been established by judicial decisions.

  The allegations in the Particulars of Offence do net fall within the ambit of the recognized activities, which can constitute the offence. For example, there is no act by any of the accused which could pervert the course of public justice in respect of convictions of Bernal and Moore, and in any event nothing was done by any of them to do so.

• 3. It is well established law that persons cannot conspire to commit a criminal offence, for the acts which do not constitute an offence in law; persons cannot conspire to commit an offence unknown to the law.

4 In developing those arguments, Mr. Henriques, Q.C. for the appellants contended, firstly, that the indictment does not disclose an offence because the offence of perverting the course of public justice is not applicable when the proceedings, civil or criminal have been concluded. In respect of a criminal case, he argues that once a conviction has been entered, nothing can be done to interfere with that conviction, and consequently no act in that regard could amount to an act which perverts the course of justice in respect of that conviction. In extending that submission he was bold enough to maintain that proceedings in a Court of Appeal would not come within the ambit of the meaning of "public justice" as is applicable to the offence of perverting the course of public justice.

5 In my view, it would be remarkable, and perhaps absurd if the law excludes the process of Appeal as one of the integral aspects of the Administration of Justice. The term "course of justice" as it applies in an allegation of "perverting the course of justice" must by necessity include all the processes in the system from the moment an accused is arrested and comes before the Court until all the issues involved in the case have been finally settled. A convicted person can have his conviction reversed on appeal, either to the Court of Appeal or to Her Majesty's Privy Council. Even after that process, there are provisions in the Law and in the Constitution, which enable the convicted person to petition the Governor General who in an appropriate case, may refer the matter back to the Court of Appeal to adjudicate on the matter as if it were a fresh Appeal. See Section 29 (1) (a) of the Judicature (Appellate Jurisdiction) Act which states:

"29. (1) The Governor-General on the consideration of any petition for the exercise of Her Majesty's mercy or of any representation made by any other person having reference to the conviction of a person on indictment or as otherwise referred to in subsection (2) of section 13 or by a Resident Magistrate in virtue of his special statutory summary jurisdiction or to the sentence (other than sentence of death) passed on a person so convicted, may, if he thinks fit at any time, either -

(a) refer the whole case to the Court and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; ..."

6 The above process may include the opportunity to offer fresh evidence which was not available at the time of conviction.

7 In the event, I have great difficulty in accepting this proposition offered by counsel for the appellant, and am of the opinion that the contrary is the correct principle of law - that is to say, all these processes, fall within the concept of "justice" as it applies to the particulars of the offence of perverting the course of justice.

8 The following dicta taken from the judgment of Brennan and Toohey JJ sitting in the High Court of Australia in the case of R. v. Rogerson and Others [1992] LRC (Crim) 680 at page 687, are in keeping with my own views expressed (supra).

"Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case: R v Todd [1957] SASR at 328. 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."

9 If the appellate proceedings are an integral part of the "course of justice" then it follows that any act done with the intention of impairing or perverting the appellate Court from exercising its powers and responsibility to dispense justice, must necessarily amount to perverting the course of justice.

10 In the instant case, the indictment speaks to "casting doubt" on the validity of the convictions of Christopher Moore and Brian Bernal. The evidence in relation to this allegation will be the subject of discussion later in this judgment. It should be noted, however, that the conspiracy alleged was to cause Radcliffe Orr to plead guilty to offences for which others had already been convicted. The purpose of that, which need not have been pleaded but was pleaded, was to cast some doubt on those convictions. Any "casting of doubt" would by necessity involve an enquiry by way of fresh evidence in the Court of Appeal to determine the effect of Orr's confession on those convictions. Significantly also, the Crown led evidence that at the very time Orr was confessing to these crimes, Brian Bernal's attorneys were engaged in the Court of Appeal, tendering fresh evidence from another source.

11 If the prosecution successfully proved that the appellants conspired to cause Orr to plead guilty to the offences for which Brian Bernal and Christopher Moore were convicted, and to maintain that Brian Bernal and Christopher Moore were not involved in the commission of those offences, then the only reasonable inference to be drawn from those facts is that they were designed to have some effect on those convictions, and in particular on the conviction of the appellant Moore.

12 The possible effect would of course be dependent on the provisions of law which make it possible to bring the matter back to the Courts. Mr. Henriques, Q.C. argued strongly that there was no evidence of any act done by the appellants, to invoke any such procedure, which he maintained is a necessity in order to prove a conspiracy to pervert the course of justice. He cited some authorities upon which he relied. In my view that submission is misconceived. A conspiracy is nothing more than an agreement between two or more persons to do an unlawful act, or to do a lawful act, by unlawful means (See Mulcahy v. R (1868) LR 3 HL 306. ) A conspiracy to pervert the course of public justice is a conspiracy and nothing more. It is an inchoate offence in the sense that it is complete without the doing of an act save the act of agreeing to pervert the...