R v Melisha McIvor[2025] QDC 116

DISTRICT COURT OF QUEENSLAND

Application

1. [1]
   This is an application for a ruling that there is no case to answer on the Crown case as particularised for the sole offence on the indictment of attempting to pervert the course of justice.  The applicant did not seek an order that the indictment be permanently stayed if I find that there is no case to answer in relation to the charge.  The Crown has indicated that the indictment will be discontinued upon any ruling that there is no case to answer in relation to the charge.

The power sought to be exercised

2. [2]
   The pre-requisites to be met before such an application can fall for determination pre-trial were confirmed in R v Gesa and Nona; ex parte Attorney-General (Qld) [2001] 2 Qd R 72 at paragraph [18], being:

   1. firstly, where the facts are either agreed or undisputed; and
   2. secondly, those facts are incapable of supporting a guilty verdict; and
   3. where the Crown concedes that those facts represent the highest the Crown case can be put.

3. [3]
   In this case I proceed on the accepted basis that my decision should be based on the evidence tendered at the outset of the hearing of this application as referred to within this judgment.
4. [4]
   The question of law to be decided is whether on the evidence as it stands the accused could lawfully be convicted. The approach that must be taken is that laid down by the High Court in Doney v The Queen (1990) 171 CLR 207, 214-215 as follows:

“… if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision.  Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at is highest, it will not sustain a verdict of guilty.”

5. [5]
   The applicant accepts, correctly, that the determination of the ‘no case’ application in a circumstantial case does not require me to determine that there is no case to answer if I believe that there is a hypothesis consistent with innocence reasonably open on the evidence.  The correct position is that recited by McPherson J in R v Stewart; Ex parte Attorney-General (Qld) [1989] 1 Qd R 590 at 592 namely:

“…Only if the evidence had been such that an inference to that effect was incapable of being drawn beyond reasonable doubt could it be said that there was in law no material on which a verdict of guilty might be found; that there might remain a possible inference consistent with innocence did not serve to remove the question from the province of the jury.”

6. [6]
   His Honour went on to endorse the proposition of Justice Glass in “Acquittals by Direction” (1986) 2 Aust Bar Rev 11,12, namely:

“…The trial judge never asks himself the question whether the facts and inferences which the Crown evidence is sufficient to establish are reasonably open to an explanation consistent with innocence…

Whether the Crown has excluded every reasonable hypothesis consistent with innocence is a question not for the judge, but for the jury…”

The charge

7. [7]
   The applicant is charged that on divers dates between the first day of June 2023 and 31 August 2023 at Cooktown in the State of Qld she attempted, by coercion of witnesses, to pervert the course of justice.
8. [8]
   The course of justice said to be perverted is proceedings in the Magistrates Court against Marlow Philip Andrew McIvor (Andrew McIvor) relating to a charge of serious assault with respect to a complainant who is now deceased for reasons unrelated to either that charge or the current charge before the Court. The applicant is the sister of Andrew McIvor.
9. [9]
   The elements of the offence of attempting to pervert the course of justice were considered at length by the Western Australian Court of Appeal in relation to their equivalent offence provision in Librizzi v Western Australia (2006) 167 A Crim R 26.
10. [10]
    At paragraph [70]-[73] Roberts-Smith JA (with whom Buss JA and Pullen JA agreed) said:

“There is a distinction between “unlawful” means and “improper” means.  The majority in the High Court in Meissner^[1] were not addressing that distinction.  They confined their observation to unlawful means. Further, their observation was qualified. They acknowledged that a threat to do what the alleged offender might lawfully do may still constitute an offence of attempting to pervert the course of justice if the end it is intended to secure is not a legitimate end. So it was they went on to hold (at 143) that any conduct designed to intimidate an accused person to plead guilty is improper conduct and necessarily constitutes an attempt to pervert the course of justice even if the intimidator believes the accused is guilty of the offence charged. That is because the plea of guilty would not be made as the result of the person’s free choice.

Thus, in the context of interference with a witness, a threat to do that which would otherwise be lawful may yet constitute an attempt to pervert the course of justice if made for an improper purpose, such as to intimidate the witness and to induce the witness the withdraw or give different evidence by fear or by promise of some benefit, irrespective of whether the accused believed the intended evidence to be false or not.  In such circumstances the threat would be one to do more than what the accused might lawfully do to secure a legitimate end.

It is a legitimate end to seek to persuade a witness, by reasoned argument, to tell the truth.  It is not a legitimate end to seek to intimidate a witness by threats or otherwise to give evidence different to that they would give if left to their own choice, even if the accused believes the intended evidence is false^[2].”

11. [11]
    Buss JA, in agreeing with the reasons of Roberts-Smith JA, said:

“A person does not attempt to pervert the course of justice if the person merely approaches a witness who the person believes intends to make a false statement (either deliberately or inadvertently) in pending criminal proceedings, and, by reasoned argument or advice, endeavours to dissuade the witness from giving perjured or erroneous evidence.  This conduct will not, of itself, have a tendency to pervert the course of justice.

A person will, however, attempt to pervert the course of justice if the person:

(a) approaches a witness in pending criminal proceedings and, by improper conduct, attempts to persuade the witness to withdraw or modify his or her proposed evidence; and

(b) intends to pervert the course of justice.

The categories of improper conduct include the provision of a bribe a making of threat.  The approach to the witness, in the circumstances I have described, will have a tendency to pervert the course of justice in that there a risk the witness will be induced involuntarily to withdraw or modify his or her proposed evidence…”^[3]

12. [12]
    The principles applicable to the operation of the offence of attempting to pervert the course of justice in Western Australia as distilled in the decision of Librizzi can be summarised as follows:

    1. A person is guilty of attempting to pervert the course of justice when he or she engages in conduct which has the tendency to pervert the course of justice and does so with the intention of perverting the course of justice.
    2. It is irrelevant whether or not the conduct in question succeeds in perverting the course of justice. It is the tendency of that conduct which is decisive.
    3. The notion of ‘perverting’ the course of justice involves nothing more than adversely interfering with its proper administration.
    4. The essence of the offence is the doing of some act which has a tendency and is intended to pervert the administration of public justice.
    5. The motive with which an accused engages in the impugned conduct is not an element of the offence and is irrelevant except to the extent that in the particular case it may illuminate the accused’s intention.
13. [13]
    The case under consideration in Librizzi involved an attempt to persuade a witness to not give evidence.  Roberts-Smith JA held that in such circumstances a person will attempt to pervert the course of justice if the person:

    1. by improper conduct, attempts to persuade a witness to withdraw or modify their proposed evidence; and
    2. intends to pervert the course of justice.

14. [14]
    The Crown tendered particulars in this case which state that the acts relied upon to establish that the applicant coerced witnesses as per the charge included:

    1. Approaching two witnesses, Ms Virginia Peter and Ms Doretta Cobus …directing/requesting the witnesses provide her an account in written form.
    2. Directing/requesting the witnesses to sign a written account created by the applicant or at her request.
    3. Directing/requesting Ms Cobus speak to family members with respect to withdrawing the charge.
15. [15]
    In respect of the applicant’s intention, the Crown particulars state that her intention was to have the charge discontinued without consideration and/or to alter the outcome of the proceedings from its ‘proper course’. The proper course was said to be the testing of the witnesses’ evidence in the controlled environment of a courtroom free from pressure of others.

The evidence

16. [16]
    The agreed facts placed before me were:

    1. A police statement of Doretta Cobus dated 31 May 2022,
    2. An undated handwritten document headed up ‘affidavit’ that was signed by Ms Cobus but not witnessed.
    3. Police statement of Doretta Cobus dated 13 August 2024
    4. Police statement of Virginia Peter dated 13 September 2022
    5. An undated handwritten document headed up ‘affidavit’ of Ms Peter that was signed by Ms Peter but not witnessed.
    6. A transcript of proceedings from 06 August 2025 where Ms Cobus and Ms Peter were each examined and cross-examined in a ‘basha’ hearing before me.
    7. A drive containing recordings of eight calls between the applicant and Andrew McIvor recorded whilst he was in the Lotus Glen Correctional Facility between March and July 2023 along with transcripts. I have listened to each of those calls.
17. [17]
    The first police statement of Ms Cobus recorded her observations of the offence of assault that Andrew McIvor was later charged with. In that statement she said that she was present at a barbeque stand when Andrew McIvor started accusing people of stealing money. She saw him approach the deceased who had walked some distance away. She heard Andrew McIvor yell at the deceased “you’re not my father.” She explained that whenever the deceased got drunk he would tell Andrew McIvor that he was his father which would anger Andrew McIvor. She said she did not see what happened that caused the deceased to fall to the ground but that she was told by the deceased when she called ‘000’ that Andrew McIvor had kicked him. 
18. [18]
    The undated affidavit which the Crown says was provided as a result of coercion by Melisha McIvor is not significantly inconsistent with this version. It says that Andrew McIvor was going off about his $200 that someone had stolen.  The deceased said something aggressive to Andrew McIvor and Andrew McIvor pushed the deceased who fell to the ground. It names a number of other witnesses she said were present. The primary inconsistency therefore is in whether or not Ms Cobus saw Andrew McIvor push the deceased. In my view it is relevant to an assessment of whether the applicant coerced Ms Cobus into providing this affidavit that it is not an exculpatory version. In fact, in the affidavit Ms Cobus inculpates Andrew McIvor more than her original statement by saying she actually observed the push.
19. [19]
    The evidence of how that affidavit was produced was placed before me by evidence in the‘basha’ enquiry held separately to this application. Ms Cobus gave evidence about how she knew the applicant and Andrew McIvor and that as a sign of respect she calls them ‘Auntie’ and ‘Uncle’. She was good friends with the applicant and had known her a long time. She said that sometime after she provided her statement to police the applicant came around with the affidavit paper and asked her to tell her about what happened.
20. [20]
    Ms Cobus said that she had a piece of paper with her (this is the blank form headed up “affidavit”) and that the applicant wrote down what she told her and she then signed it. She was asked if she wanted to do the affidavit and she responded “not really, but I had thought she was going to disown me and everything.” She explained that she thought the applicant wasn’t going to be her friend any more. She said that the applicant did not talk to her about what things to put in the affidavit but just asked her what she had seen and heard. She did not tell the applicant that she did not want to do the affidavit.
21. [21]
    She said on another occasion, she couldn’t recall when, the applicant approached her and asked her to tell Sonya (the granddaughter of the deceased) to ask the deceased if he would drop the charges. In response Ms Cobus told the applicant she would try. She then spoke with both Sonya and the deceased and said in evidence she asked him if he would drop the charges and he said no. Whilst the witness was cross-examined about these matters the above summary reflects the height of the prosecution case.
22. [22]
    In relation to Ms Peter, her police statement about the assault said that Andrew McIvor was accusing the deceased of stealing from him and then Andrew McIvor punched the deceased hard in the chest causing him to fall off of his chair. She called ‘000’ as she was concerned as the deceased was unable to get up.
23. [23]
    The ‘affidavit’ states that she saw Andrew McIvor push the deceased out of the chair accusing him of stealing his phone and some money. She stated she couldn’t recall much because she was also intoxicated and the last sentence says “I didn’t see anything happen on that day.”
24. [24]
    In evidence given on 06 August 2025 she said she knows the applicant and Andrew McIvor and calls them ‘Auntie’ and ‘Uncle’ out of respect. She had known the applicant for many years from when she would visit family in Cooktown.
25. [25]
    She said that the applicant did not talk to her about the statement she provided to police but did ask her to fill out an affidavit form. She couldn’t remember when that was. She said that the applicant came to her house and that “she just told me to – if I can just fill out the affidavit to see if we can get Uncle Andrew out of the jail.” Ms Peter said that she told her that she would put the same thing down that she told the police. The applicant did not say anything further to her while she completed the affidavit. When asked if she wanted to complete the affidavit she said she did because it was a family member so she was just trying to be nice and help out.

Consideration

26. [26]
    Having regard to the particulars tendered by the Crown, in the circumstances of this case, the Crown must prove:

    1. That the applicant, by her conduct, coerced Ms Cobus and Ms Peter into providing affidavits and in relation to Ms Cobus, coerced her into speaking to the deceased and his granddaughter.
    2. The applicant intended by her conduct to coerce them into doing the things.
    3. The things done by the witnesses had the tendency to pervert the course of justice.
27. [27]
    By virtue of the particulars, it is accepted by the Crown that a jury would have to be satisfied that the applicant coerced the witness into doing the act.  The particulars state that by ‘coerce’ the Crown means to compel or force another person to do something.
28. [28]
    In my view the charge and particulars represent a proper acceptance by the Crown that this is a case where the means employed to make the request needs to be improper because the asking of a witness to provide a statement or withdraw a complaint, is not an attempt to pervert the course of justice unless it is done unlawfully or improperly. 
29. [29]
    The applicant argues that there is no evidence that she “coerced” Ms Cobus or Ms Peter into doing the acts and further that simply asking the witnesses to do things, without anything more, does not have the tendency to pervert the course of justice as there was no evidence she used ‘improper’ means.
30. [30]
    Nor, the applicant argues, is there any evidence from which a jury could be satisfied that there was a real risk that injustice might result from the applicant asking them to do the things she did so that her conduct had a tendency to pervert the course of justice.
31. [31]
    The Crown submitted that whether or not the evidence establishes that the witnesses were coerced by the applicant ought to be a jury question and that there was a real risk an injustice would result because there was a risk or possibility that the matter would be diverted away from the court process, that is, that the prosecution would withdraw the charges as a consequence of reviewing the ‘affidavits’, or as a result of the complainant withdrawing the charge, or that the credibility of the witnesses was undermined by the provision of the inconsistent affidavits.
32. [32]
    The critical issue for my consideration in relation to this application in my view is whether there is any evidence capable of establishing that the witnesses were “coerced” by the applicant into doing the acts. That is, did the actions of the applicant force or compel them to do the acts, and did she intend to force or compel them to do the acts.  In my view if there is evidence capable of establishing that the witnesses were coerced by the applicant then there is sufficient evidence for a jury to consider whether or not those coerced acts had the tendency to pervert the course of justice. Particularly as that applies to the request to Ms Cobus to ask the deceased to drop the complaint.  
33. [33]
    No matter what dictionary one might go to for a definition of the word “coerce”, it involves persuading someone by force or by threats to do something that they are unwilling to do. The Crown’s particulars state that by coerce it means to “compel or force another person to do something.” On one view of it, the Crown case therefore fails on its own particulars as the particulars simply say that the witnesses were directed or requested to do the acts. 
34. [34]
    Here, the Crown accept that on its own a direction or request is not sufficient to amount to coercion but submit that the evidence reaches the requisite standard when regard is had to the circumstances under which the requests were made.
35. [35]
    It is plain from the evidence that there is no evidence that the applicant “directed” either witness to do any of the acts. Therefore, it remains to be considered whether the “requests” are capable of demonstrating that the applicant coerced the witnesses when regard is had to the circumstances.
36. [36]
    The circumstances relied on by the Crown are:

    1. The relationship between the witnesses and the applicant – in that they are friends, respect her and call her Auntie. 
    2. That the witnesses were approached by the applicant in their homes.
    3. That the request to Ms Peter was accompanied by a reminder that Andrew McIvor was in jail
    4. Ms Cobus said she did not want to provide the affidavit and therefore it is said that it was not her free choice, so she was coerced.
37. [37]
    The difficulty with that final proposition is that it must be the act of the applicant that amounts to coercion and not the fact that the relevant witness may have felt that they were being coerced into the acts.  In order for the applicant to have coerced the witness there would have to be some evidence from which a jury properly instructed could draw the inference that she knew that the witnesses would act in accordance with her requests because of some improper influence she exerted over the witnesses.
38. [38]
    I accept the submissions on behalf of the applicant that the evidence is incapable of proving that the applicant’s conduct amounted to coercion of the witnesses. The height of the evidence is that the applicant simply asked them to provide the affidavits and approach Sonya. In my view there is no evidence capable of supporting an inference that the circumstances under which those requests were made amounted to the applicant coercing the witnesses.
39. [39]
    The Crown further argued in oral submissions that the recorded phone calls evidence an intention on the part of the applicant that she intended to obtain the affidavits from the witnesses whether they wanted to provide them or not. In my view there is nothing in the calls between the applicant and Andrew McIvor that give rise to that inference being able to be drawn. It is plain from the recordings that she intended to approach the witnesses and ask them to provide the affidavits. In any event, even if the evidence was capable to such an inference being able to be drawn in my view there is no evidence that the applicant did any act that is capable of amounting to coercing the witnesses to provide the affidavits,
40. [40]
    I have separately had regard to whether there should be a different consideration in relation the applicant requesting that Ms Cobus ask the deceased’s granddaughter to drop the charges which Ms Cobus did do. However, having regard to the particulars, in order to consider whether or not that act had a tendency to pervert the course of justice it relies first on the jury being able to be satisfied that Ms Cobus was coerced into doing that which in my view cannot be established on the evidence.

Ruling

41. [41]
    The ruling in this matter is that the evidence is incapable of proving to the requisite standard that the applicant coerced the witnesses into doing the particularised acts and there is no case to answer in relation to the charge.