One month ago, Magistrate Bob Harrap was being investigated by ICAC for perverting the course of justice and deception.
Magistrate Harrap has resigned as a South Australian Magistrate since the beginning of the trial. He has now plead guilty to multiple offences, namely, conspiring to abuse public office and two counts of deceiving the Courts Administration Authority in order to avoid losing demerit points.
Furthermore, several other parties plead guilty to deception and conspiring to abuse public office, including Solicitor Catherine Moyse, Melanie Freeman (a court clerk) and Police prosecutor Abigail Foulkes.
The Courts will sentence Bob Harrap in September this year.
Conspiring to Abuse Public Office in NSW
Conspiring to Abuse Public Office is an offence unique to South Australia. Nevertheless, an equivalent offence for NSW state magistrates and judges is the general offence of perverting the course of justice under s319 of the Crimes Act 1900 (NSW):
“A person who does any act, or makes any omission, intending in any way to pervert the course of justice.”
Note that there is also an equivalent offence for Commonwealth Judges, specifically, the offence of Abuse of Public Office under s142.2 Criminal Code 1995 (Cth).
Key Elements
For the prosecution to succeed in a charge of perverting the course of justice, they must prove the following elements beyond reasonable doubt:
- A person
Under s4 Crimes Act 1900 (NSW), “ person” is defined to include any individual, society, company, or corporation.
- Does any act or makes any omission
An “act” is defined as positively doing something, whereas an “omission” is where a person fails to do something.
- Intending in any way
“Intention” in criminal law refers to the intention of the person at the time of the incident. This can be inferred from the circumstances of the incident and the conduct of the accused before, after and at the time of the incident, as per R v Stokes and Difford.
- To pervert the course of justice
“Pervert the course of justice” defined under s312 Crimes Act 1900 (NSW) means “ obstructing, preventing, perverting or defeating the course of justice or the administration of the law”.
This broad definition captures both minor and major instances of perverting the course of justice. For example, a minor instance of this offence is where a person lies during their bail hearing in order to obtain bail. A more serious instance is explored in Allen v R, where the accused was charged with sexually assaulting his former girlfriend. In this case, the accused had spread sexually explicit images of the complainant to other people and told the complainant that he would stop spreading the images only if she dropped the charges.
Note that the prosecution is not required to prove that the attempts to pervert the course of justice was successful.
Defences
If the prosecution fails to prove any of the above key elements beyond reasonable doubt, the accused will be found not guilty.
The accused to may also submit a legal defence such as:
- Duress
- Necessity
- Self-defence
If the accused validly raises any of the above defences, the onus is then on the prosecution to disprove the defence/s beyond reasonable doubt.
Penalty
The maximum penalty for this offence is 14 years imprisonment. However, it is open to the Court to grant a lesser sentence where there are mitigating circumstances.
Mitigating circumstances can include:
- Protection of a family member (Podesta v R [2009] NSWCCA 97)
- Influencing only the grant of bail (R v Finnie and Finnie [2007)
- No prior convictions
If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.
The above information is intended as general information and is not intended to be relied on as legal advice.
