Finnie v Regina and Regina v Finnie

Court of Criminal Appeal (NSW)|2006-09-26|Before: Sully J, Simpson J, Latham J

Introduction 1 Between 26 April 2005 and 30 May 2005 the appellant, Mr. Finnie, stood trial in the District Court at Sydney. He was tried upon an indictment containing three counts. 2 Count 1 charged the appellant with having perverted the course of justice. This offence was alleged to have been committed between 26 November 2000 and 8 December 2000. An offence of this kind contravenes section 319 of the Crimes Act 1900 (NSW). It attracts upon conviction a statutory maximum penalty of imprisonment for 14 years. The jury found the appellant guilty of this charge. He was formally convicted and was sentenced to imprisonment for 18 months commencing on 22 September 2005, the date of his sentencing, and expiring on 21 March 2007. A non-parole period of 9 months was set, to commence on 22 September 2005 and to expire on 21 June 2006. 3 Count 2 charged the appellant with a further contravention of section 319. The count alleged the same dates as for the Count 1 offence. The jury found the appellant not guilty of this charge. 4 Count 3 charged the appellant with having committed perjury on 27 November 200. The jury found the appellant not guilty of this charge. 5 The appellant appeals against his conviction on Count 1. He applies concurrently for leave to appeal against his sentence. 6 The grounds of appeal against conviction are: "1. Count 1 in the indictment is bad in law in that it does not disclose an offence known to law. 2. The learned Trial Judge's directions with respect to count 1 were ambiguous, misleading and failed to direct the jury regarding "tendency" to pervert. 3. The Trial Judge erred as a matter of public policy and at law in permitting the Crown to call evidence from the solicitor of the accused Mr. Gregory Meakin to establish elements of the prosecution case. 4. The verdict on count 1 of the indictment is unreasonable and against the weight of the evidence. 5. The finding of guilty by the jury with respect to count 1 is perverse, incongruous and inconsistent with the verdict of the jury with respect to count 3. 6. The Trial Judge erred in not permitting the defence to lead evidence from the committal proceedings of Dr. Tynan with regards to the accused's belief regarding his ailments, particularly with respect to the issue of prostate cancer." 7 The grounds of appeal against sentence are: "7. That the sentence imposed is manifestly excessive. 8. That in all of the circumstances the Sentencing Judge should have found exceptional circumstances so as not to impose a full time custodial sentence." 8 Some 12 days after the filing of the appellant's grounds of appeal, the Crown gave notice of appeal against the appellant's sentence, the sole ground of appeal being that the sentence was manifestly inadequate. 9 The relevant factual material is extensive. Because the appellant's case at the hearing of the appeal concentrated upon Ground 5, it will be necessary to consider the detail of the factual material pertaining to both Count 1 and Count 3. This is a substantial burden and it might be eased somewhat by citing, first, the following "Brief Overview" that is offered in paragraph 7 of the Crown's Summary of Trial: "During sentence proceedings before his Honour Judge Coorey on 27 November 2000, the appellant sought bail, one of the reasons being to seek treatment for prostate cancer and to be able to more easily seek the opinion of medical specialist outside the gaol. Judge Coorey informed the defence that he would likely grant bail if evidence of the appellant's prostate cancer could be produced. On 7 December 2000, one week after the bail application, a medical report by a Dr. W. H. Gorvy was faxed to the Office of the Director of Public Prosecutions by the appellant's legal representatives. Subsequent investigations by police showed this report to be false. When the appellant was interviewed by police on 17 May 2001 he denied having ever seen the report. He was later charged with perverting the course of justice and perjury." 10 That brief overview can be fleshed out conveniently by quoting as follows from the remarks on sentence: "2. In late 2000 the offender was in custody awaiting sentence by Judge Coorey in relation to fraud matters. On 15 May 2000, the offender saw Dr. Vago, a general practitioner, and provided Dr. Vago with a medical history which found its way into a report from Dr. Vago dated 30 May 2000 (Exhibit P in the trial). In preparing the report, Dr. Vago had regard to the offender's prison medical records and to information provided by the offender. 3. At page 3 of Exhibit P, Dr. Vago reported: "The prostate condition was diagnosed by Dr. Gonski at Royal North Shore Hospital where a biopsy revealed cancer. Conventional treatment has been unsuccessful so Mr. Finnie relies on alternative therapy." 4. The offender saw Dr. Vago in May 2000 because he wanted to clarify his diagnosis in relation to several medical problems so that he could obtain appropriate treatment within prison. In May 2000 there was no plan for the offender to seek bail on the basis of his medical condition. Dr. Vago concluded that proper diagnosis required that the offender consult some specialists. 5. In September 2000, Mr. Meakin began to act as the offender's solicitor. He considered that the offender should apply for bail. The offender decided to apply for bail so that he could obtain the best possible medical evidence to present to Judge Coorey on the sentencing proceedings, so that he could obtain proper medical attention, and also, no doubt, so that he could enjoy his freedom. 6. The offender instructed Mr. Meakin to call Dr. Vago on the bail application. The application came before Judge Coorey on 27 November 2000. The offender gave evidence. A transcript of that evidence was Exhibit F in the trial. At page 11 the offender said: "I was diagnosed with prostate cancer in 1995. It had been treated by Dr. Gonski in Royal North Shore with mainstream medication, which is very limited, and I elected in 1996 to go on a regime of alternative medicine, which was having quite a deal of success and had brought the PSA count down from 160 to 80." The offender confirmed that he had at all times been truthful in what he had told Dr. Vago. 7. Dr. Vago was called. He said at page 45 of Exhibit F: "He's had tests to prove that he's got prostate cancer by Dr. Gonski at Royal North Shore Hospital …." 8. The offender does not have and has never had prostate cancer. He has had a relatively common prostate problem. PSA is an indicative test for prostate cancer. A number of PSA tests, which were undertaken before November 2000 returned normal readings. The offender had consulted some doctors in relation to his prostate problems, and a number of doctors gave evidence that, on their examination of the offender, there was no basis for a diagnosis of prostate cancer. 9. A biopsy, which was undertaken after November 2000, confirmed that the offender did not have prostate cancer. The offender was not seen at Royal North Shore Hospital for a prostate problem at any time, nor was he seen by Dr. Gonski at Royal North Shore Hospital. 10. The jury must have accepted the possibility that the offender was inaccurately diagnosed with prostate cancer possibly by the On or Om Clinic, which he allegedly consulted in about 1995. Jury note nine and the jury's verdict on the perjury account establish that. 11. However, the evidence of a number of consultations in relation to the prostate and a number of PSA tests before November 2000 clearly show that, as at November 2000, there was no basis for a suspicion of prostate cancer by the offender. When the offender, through Dr. Vago, raised the spectre that he had prostate cancer, as evidenced by an alleged PSI reading of 160 (an alarmingly high reading by any standard), he was deliberately trying to mislead Judge Coorey with a view to obtaining bail. There was an obvious potential for evidence of cancer to influence the outcome of the bail application. Indeed, on 30 November 2000 (Exhibit G page 19), Judge Coorey said: "If he has cancer it will take me ten seconds to decide the matter." 12. Fortunately, the Crown was suspicious regarding the assertion of prostate cancer. The bail application was adjourned to enable the Crown to lead evidence that the offender was not suffering from prostate cancer. The offender was not granted bail until September 2001. In relation to that grant of bail, there was no allegation of prostate cancer."

The Conviction Appeal: Ground 1 11 Count 1 of the indictment was laid in the following terms: "For that between 26 November 2000 and 8 December 2000 at Sydney in the State of New South Wales …(the appellant) … did an act, namely, was instrumental in the calling of Dr. Leslie Vago as a witness in a bail application hearing before the District Court on 27 November 2000 knowing that his evidence was based on false information intending thereby to pervert the course of justice.: 12 It is important to be precise about the true issue that is tendered by ground 1. The issue is not whether the count gives adequate particulars of the offence charged. The issue is whether the count states the essential elements of the offence intended to be charged, being an offence known to law. 13 The offence intended to be charged is a contravention of section 319 of the Crimes Act, which section provides relevantly: "A person who does any act ……….. intending in any way to pervert the course of justice, is liable to imprisonment for fourteen years." 14 A count which is intended to charge a contravention of section 319 and which is drafted "….. in the words of ……. (the section itself)……is sufficient in law": Criminal Procedure Act 1986 (NSW) s 11. 15 In the present case, the words "…….. namely, was instrumental in the calling of Dr. Leslie Vago as a witness in a bail application hearing before the District Court on 27 November 2000 knowing that his evidence was based on false information …………" do not plead essential legal elements of the intended charge. They provide, rather, particulars of that intended charge. When the count is read without reference to those particulars, then what remains is a charge preferred, precisely, in the words of the statutory provision that creates the offence as charged. That is, by statute, "sufficient in law". 16 I would not uphold Ground 1.

The Conviction Appeal: Ground 2 17 The appellant submits: first, that "this court should hold that s 319 does require a relevant act to have a 'tendency' to pervert the course of justice"; and secondly: "The learned trial Judge did not give the jury any assistance as to whether or not the mere giving of instructions was something which was therefore "instrumental" in the calling of the doctor; nor did she mention that the "act" needed to have a tendency to pervert the course of justice. To invite the jury to consider the act of giving instructions as being instrumental in the calling of the doctor (such element seeming to be to her Honour to be not particularly contentious) without giving the jury directions requiring them to consider whether the giving of instructions to one's solicitor simpliciter could have a tendency to pervert the course of justice, led to a miscarriage of justice in the trial." 18 The learned trial Judge gave clear and careful directions in connection with Count 1. It is convenient to reproduce them: "31. In order to prove this offence, the Crown must prove the two legal elements of the offence beyond reasonable doubt. Namely, that the accused did an act and that the act was done with the intention of perverting the course of justice. 32. As to element one, the act. The act of the accused upon which the Crown relies here is that he was instrumental in the calling of Dr. Vago as a witness on 27 November. In other words, he was instrumental in the sense that he instructed Mr. Meakin, his solicitor, to call Dr. Vago as a witness. In his address, I think Mr. Bonnici conceded that the accused did instruct Mr. Meakin to call Dr. Vago, although he noted Mr. Meakin's evidence that it was not on direct instructions. Mr. Meakin gave evidence that the accused was at Court when Dr. Vago was called. I do not know that this element is particularly contentious but, nevertheless, you would have to consider it and be satisfied, beyond reasonable doubt that the accused did an act in that he was instrumental in the calling of Dr. Vago, in that he instructed Mr. Meakin to do that. 33. The second element of count one is that the act was done with the intention of perverting the course of justice. I will explain to you, in general terms, what that might mean. The course of justice includes proceedings before a judge, but it does have a much wider meaning. For example, it includes an investigation by police as to whether they should withdraw a charge or continue to prosecute the charge. The course of justice does include a bail application before a District Court Judge. In relation to perverting the course of justice, to pervert the course of justice means to obstruct, prevent, pervert or defeat the course of justice or the administration of the law. It is conduct which is intended to result in a miscarriage of justice, whether or not the conduct actually results in a miscarriage of justice. It may be that the conduct is not even capable of resulting in a miscarriage of justice. But, if the accused acts with the intention of causing a miscarriage of justice, the offence is committed. If a person acts with the intention to stop police prosecuting a charge, knowing that there is no proper basis for police to stop prosecuting, then that is an intention to pervert the course of justice. If a person acts with the intention of obtaining the return of monies based upon false documents, then that would be an intention to pervert the course of justice. If a person directs that false evidence be called or provides a false document for use in Court and the person knows that the evidence or document is false and may well mislead the judge and result in a more favourable decision, then that is acting with the intention of perverting the course of justice. 34. The context in which an act occurs is often very important, to determining what a person's intention was at the time. What a person says and does at the time, if you know it, can be critical to determining what was in the person's mind, what the intention was at that time. What a person says and does shortly after a particular act can, of course, also shed light on their intention at the time they did an act. In considering whether the accused intended to pervert the course of justice, you consider what his intention was at the time that the relevant act was done, what his intention was, not what a reasonable person might have intended or what you would have intended had you been in the accused's position. 35. In relation to count one on the indictment, I believe that the contentious issue is whether, at the time that Dr. Vago was called on 27 November, the accused instructed his solicitor to call Dr. Vago knowing that Dr. Vago's evidence would be based on false information and may well mislead the judge into making a more favourable determination on the bail application. The Crown says that the only available rational inference is that the information upon which Dr. Vago based his evidence was false to the accused's knowledge. The Crown says that, in fact, what Dr. Vago said was false in that the accused was not diagnosed with prostate cancer in 1995, there was no prostate cancer which failed to respond to conventional treatment and there was no diagnosis of a prostate condition by Dr. Gonski at the Royal North Short Hospital and no biopsy which revealed cancer. The Crown argues that, if the accused knew that the information was false, he must have wanted the evidence led for the purpose of misleading the judge. 36. In relation to count one the accused argues that the Crown has not proved the relevant intention beyond reasonable doubt. Other rational inferences are available. For example, you might rationally infer that the accused was diagnosed with prostate cancer in 1995 at the Om or Onclinic, or you might rationally infer that the accused mistakenly believed that he had been so diagnosed and therefore he had no intention to mislead the judge. He mistakenly thought that what Dr. Vago wrote in his report of 30 May and what he said in evidence was true. So, before you could convict the accused on count one, you would have to be satisfied, beyond reasonable doubt, that when he instructed Mr. Meakin to call Dr. Vago, he did so with the intention of perverting the course of justice. You cannot infer that the accused had that intention unless it is the only available rational inference that can be drawn from the proved facts." 19 There are, in my opinion, several things to be said about these directions, read fairly as a whole: 20 First, the directions comply, in my opinion, with the guidance given by voluminous appellate jurisprudence of which a convenient and representative example can be found in The Queen v Chai (2002) 128 A Crim R 101 per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ at paragraph [18]. 21 Secondly, the directions correctly identify the relevant act: that is to say, the act of the appellant in instructing his then solicitor to call Dr. Vago to give evidence supportive of the then current bail application. This aspect of the Crown case, although not conceded at trial in so many words, was not seriously disputed at trial by the appellant. 22 Thirdly, the directions concentrate, and in my opinion correctly so, on the essential element of intention, which had been the true point of contention at trial in connection with count 1. 23 Fourthly, the appellant's then counsel made, at the first break in the summing-up following upon the giving of the foregoing directions, a succession of vigorous applications for re-directions about a range of topics; but made no application for re-directions as now proposed by ground 2: as to which consideration see R v Gulliford (2004) 148 A Crim R 558 especially per Wood CJ at CL at [182], [183] and [184]. 24 Fifthly, in the present case, as in the earlier case of Karageorge (1998) 103 A Crim R 157, I see no reason to embark upon any elaborate exercise in the construction of section 319. The appellant clearly procured the calling of Dr. Vago. It defies common sense to imagine that the appellant did that in any other expectation than that Dr. Vago would give, in support of the then current bail application, ostensibly well-founded expert medical evidence substantially to the effect of the evidence that Dr. Vago did in fact give when so called. In such a context I am unpersuaded that there was any miscarriage by reason of the omission from the summing-up of discursive directions about "tendency". 25 I would not uphold Ground 2.

The Conviction Appeal: Ground 3 26 The entitlement of the Crown to lead, as part of the Crown case, evidence from Mr. Meakin was the subject of extensive argument during the early stages of the trial. The issue was resolved, substantially, in favour of the Crown, by a ruling made by the learned trial Judge on 4 May 2005. The ruling is brief and is: "1. For the reasons which I gave in relation to the application for access to the file of Mr. Meakin, I make the findings under section 125(2) which will enable the Crown to lead evidence from Mr. Meakin, the accused's former solicitor, in relation to two areas: (1) instructions from the accused to Mr. Meakin to call Dr. Vago, and (2) the delivery to Mr. Meakin of the Berry Street Medical Practice report. 2. The material which the Crown is permitted to lead by section 125 is quite tightly confined to communications made or the contents of documents prepared in furtherance of the commission of a relevant offence, i.e. an offence under either count 1 or count 2 in the indictment." 27 The earlier ruling to which her Honour there refers was made on 28 April 2005 and dealt with an application by the Crown for access to Mr. Meakin's file, which had been produced in answer to a Crown subpoena. That subpoena made a call for any file of Mr. Meakin's "…….sentencing and associated bail proceedings in which he acted for the accused during 2000/2001". 28 Her Honour's ruling of 28 April contains clear and careful analyses of both the relevant legal and factual issues arising from the terms of section 125 of the Evidence Act 1995 (NSW), which section governed the adjudication of the Crown application. 29 It is not now submitted that her Honour erred in her analysis of the relevant legal principles. What is contended is, to quote the relevant submission: "In the circumstances of the trial of the appellant, specifically in relation to the client privileged communication regarding the prospective calling of Dr. Vago, there was an insufficient basis made out factually to permit the evidence to be adduced from the solicitor." 30 As to that factual basis, her Honour sets out clearly in paragraphs 14 through 22 of the ruling of 28 April her Honour's process of reasoning to a conclusion that there was a sufficient factual basis to justify the Crown's being permitted to lead the particular evidence of Mr. Meakin: "14. On 27 November 2000, the accused gave evidence on the bail application concerning a heart condition from which he suffered. He also stated that he was diagnosed with prostate cancer in 1995 and was treated by Dr. Gonski at Royal North Shore with mainstream medicine. He then decided to utilise alternative medicine "which …brought the PSA count down from 160 to 80". These statements by the accused form the basis of count 3 in the indictment. A PSA count is a prostate specific antigen count. It is a reading obtained from blood analysis which is used to detect the presence of prostate cancer. On 27 November 2000, the accused tendered a report of Dr. Vago, and called Dr. Vago who gave evidence in which he elaborated upon the contents of the report. A report had been provided to the accused's former solicitors on 30 May 2000. That report noted that the accused had an enlarged prostate and stated: "The prostate condition was diagnosed by Dr. Gonski at Royal North Shore Hospital where a biopsy revealed cancer." 15. In relation to count 1, the act upon which the Crown relies is that the accused instructed his solicitor to call Dr. Vago. As much can be inferred from the fact that the accused was present in court when Dr. Vago gave evidence. 16. As far as the issue of the accused's knowledge that Dr. Vago's evidence was based on false information is concerned, in these proceedings it is to be Dr. Vago's evidence that the evidence which he gave on 27 November 2000 was based on what the accused told him, and that he made no independent examination of the accused. 17. Inter alia, in his evidence Dr. Vago stated that the accused had had tests to prove that he had prostate cancer, which were undertaken by Dr. Gonski at the Royal North Shore Hospital (p 45 of the transcript of 27 November 2000). Dr. Vago gave evidence about the aetiology and usual progress of prostate cancer. He indicated that, if untreated, prostate cancer is a progressive disease. 18. The contentious issue in relation to count 1 appears to be whether the accused knew that he was not and had never suffered from prostate cancer and deliberately provided Dr. Vago with false information that he had been diagnosed with prostate cancer. 19. There is ample evidence upon which the Crown can rely to establish the accused's knowledge of the nature of his condition. In May 1995 Dr. O'Connor undertook a PSA test which was normal, giving a reading of 0.7. The accused was found to be suffering from prostatitis, which can be treated with antibiotics and is a quite different condition from prostate cancer. In August 1995, the accused was treated for heart problems by a Dr. Gluck. In December 1995, he was treated for heart problems at the Royal North Shore Hospital by a Dr. Gunning. Neither doctor took a history of prostate cancer. In September 1997, Dr. O'Connor conducted a colonoscopy but at that time there was no suggestion of prostate cancer. In 1998, the accused wrote to a Dr. Kumar giving a detailed account of his medical problems, one of which was an enlarged prostate, but there was no suggestion that the enlarged prostate was due to cancer. In January 2000, Dr. Varga of the Corrections Health Service found no indication of prostate cancer when he examined the accused. A PSA reading was taken and was 0.7, i.e. normal. The accused did not undertake any biopsy until May 2001. In the absence of a biopsy it would be remarkable if a diagnosis of cancer was made. 20. The information provided to Dr. Vago was similar to the contents of the 1995 medical report, which the Crown alleges was false and which is the subject of count 2. 21. Anyone would appreciate that, where medical evidence is led that a prisoner is suffering from cancer for which he is not being properly treated in custody, that is a matter which might influence a judge to grant bail. If the accused knew that the information which he provided to Dr. Vago was false, then it could readily be inferred that any instruction to call Dr. Vago was given with the intention of perverting the course of justice. 22. Consequently, in relation to count 1, I am well satisfied that there are reasonable grounds for finding that the offence was committed." 31 I do not see any flaw in this reasoning. That is sufficient to dispose of Ground 3. 32 I would not uphold this ground.

The Conviction Appeal: Ground 4 33 The governing principle is well settled. This Court must ask whether upon the whole of the evidence at trial, as assessed independently by this Court, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty as charged: MFA v The Queen (2002) 213 CLR 606. 34 Once again, the gravamen of the appellant's submissions cannot be summarised any more clearly than is done in the relevant paragraph of the appellant's written submissions: "69. There was no question of critical credibility of a witness, rather the Crown ran a circumstantial case seeking to prove that the only inference available was that the accused did not believe that he had been diagnosed with prostate cancer at the time that he gave evidence before Judge Coorey. Such a conclusion could never be supported beyond reasonable doubt in the light of the many other occasions both before and after that bail application on which he gave the same account." 35 The bold sweep of that submission makes it necessary to consider the relevant detail of the appellant's medical history prior to 27 November 2000, the date upon which Dr. Vago gave the evidence relevant to count 1. 36 There is annexed, as Annexure 3 to the Crown's written submissions, a summary of the appellant's medical treatment for the period 1995 - 2001. Because of the potential importance of the present ground of appeal as, if successful, an acquittal ground rather than a new trial ground, I prefer not to summarise further an already careful summary. I have attached, therefore, to these reasons a copy of the relevant paragraphs of the summary. I note that no submission was put to this Court disputing the accuracy of the contents of the attachment. 37 Dr. Vago gave at trial undisputed evidence that he had seen the appellant on one occasion only; and that he had there "essentially talked to …(the appellant)…and reviewed his …(Prison Medical) … files…….(and) …… talked to him about his past history, treatment that he received, doctors that he saw, just a comprehensive discussion about his health". 38 Dr. Vago gave evidence that when he reported thereafter that the appellant had been diagnosed with prostate cancer in 1995 and that the cancer had failed to respond to conventional treatment, causing the appellant to enter after 1998 upon a regime of alternative medicine, he was relying upon the appellant's oral history and the contents of the appellant's prison files. 39 Dr. Vago gave this evidence about his testimony of 27 November 2000: "Q. Doctor, do you remember giving evidence before the Sydney District Court on 27 November 2000? A. Yes, I do. Q. I just wanted to ask you about a couple of areas from the 27 November 2000 and in particular I wanted to ask you about page 45 and in particular on page 45 at line 20, about line 21 actually. I will just read out this part of the exhibit that is before the court and the jury: "Q. Bottom line, Mr. Finnie, in your view, is a sick man who could die in custody unless he is managed properly? A. Well, he's just had four hospital admissions in the last two years, he's had tests to prove that he's got prostate cancer by Dr. Gonski at Royal North Shore Hospital, he's had an echocardiogram, thallium scans, angiograms and everything clearly states that's what he's got.." Q. Do you remember being asked that question and giving that answer on 27/11/00? A. Yes. Q. I just want to ask you when you gave that part of the answer saying he has had tests to prove that he's got prostate cancer by Dr. Gonski at Royal North Shore Hospital, where did you obtain that information from, to give that part of the answer? A. Mr. Finnie." 40 In my opinion it was reasonably open to the jury to make the following findings:

[1] That the appellant was advised on 27 October 2000 or thereabouts by Mr. Meakin to apply for bail, the gravamen of the proposed application being the serious ill health of the appellant and the inability of the appellant to receive while in prison the treatment that his condition required;

[2] That the appellant accepted that advice and gave instructions accordingly;

[3] That in connection with those instructions the appellant gave Mr. Meakin the name of Dr. Vago as a medical practitioner whom he had consulted about a condition of prostate cancer;

[4] That Dr. Vago had prepared in connection with that consultation of 15 May 2000, a report dated 30 May 2000, that became Exhibit P at trial; and had sent that report to Mr. Meakin's predecessor as the appellant's solicitor;

[5] That the appellant must have been informed by his then solicitor of the contents of Dr. Vago's report;

[6] That the appellant instructed Mr. Meakin to call Dr. Vago to give medical evidence in support of the proposed bail application;

[7] That the appellant expected that Dr. Vago, when so called, would give evidence consistent with the contents of his report, Exhibit P;

[8] That the appellant knew that Dr. Vago, when so giving evidence, would be expressing opinions based solely upon an oral history given to him by the appellant, as supplemented by any relevant material in the appellant's prison medical file(s);

[9] That the appellant knew that of all the medical examinations which he had undergone between 1995 and October 2000, as detailed in the attachment to these reasons, not one had yielded a diagnosis of either actual or suspected prostate cancer; and that in May 1996, September 1997 (see attachment hereto at paragraph 7), September 1999 (see attachment hereto at paragraph 12); and January/February 2000 (see attachment hereto at paragraphs 14 and 20); positive testing had shown a PSA reading within normal limits and wholly inconsistent with any condition, as of those various dates of testing, of prostate cancer;

[10] That the appellant expected and intended that Dr. Vago, when giving evidence consistent with the contents of the report Exhibit P, would give, misleadingly in fact, colour to the proposition that the appellant either was then suffering from a condition of prostate cancer; or that he had been diagnosed in 1995 as having had that condition; and that there was some reason to think that the condition would, or could, recur unless bail were granted so as to facilitate urgently required expert medical assessment and/or treatment. 41 In my opinion, it was reasonably open to the jury, having made findings to the effect of those summarised above, to conclude that the combined effect of the findings was such as to permit of no other reasonable inference than that of the guilt of the appellant as charged in count 1. 42 I would not uphold Ground 4.

The Conviction Appeal: Ground 5 43 The guiding principles of law are as set out in a series of numbered propositions forming part of the joint reasons of Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen (1996) 190 CLR 348 at 366-368. It is clear that the burden of demonstrating inconsistency to the required level rests upon the appellant; and that it is no light burden. 44 Dr. Anthony Tynan had a consultation with the appellant on 25 October 2001. Dr. Tynan had made a handwritten note that the appellant had told him of having been told by doctors at the On Clinic, an entrepreneurial erectile dysfunction clinic, that he had been found to be suffering from prostate cancer as his then PSA had tested at 180. 45 On 26 May 2005, during the closing stages of the summing-up, the jury sent to her Honour the following note: "Your Honour, With relation to Count 3: Is there any element of intent here or is this purely a factual ruling? i.e. If we were to accept that Mr. Finnie had indeed received a diagnosis of prostate cancer in 1995 but that based on evidence he could not have reasonably carried on the belief that this had been a correct diagnosis and so must have known he did not actually have prostate cancer -- Would the possibility that Mr. Finnie knew he was technically being factual when he claimed under oath to have been diagnosed with prostate cancer, rule out charge three despite the implication that he was deliberately using this fact to misrepresent what he knew to be his medical condition, with the intention of misleading the judge. Would it be possible to get a copy of your chronological dates/summary? Foreperson" 46 Her Honour dealt as follows with that question: "68. Members of the jury, in order to answer your query can I take you back to the elements of the offence of perjury as itemised on your aide memoir and I think that there are two relevant elements for the purposes of your question. The first is element four and the second is element five. 69. Element four requires that you be satisfied beyond reasonable doubt that the statement was false. As far as element four is concerned, that is a purely factual finding. That is a purely factional finding. The issue is whether that statement, as a matter of fact, has been proven beyond reasonable doubt to be false. I have told you about the rule that there must be evidence of falsity from two sources, but you could find that the statement was false on the basis of circumstantial evidence. But only if the only available rational inference was that it was false. 70. Now what that means is that, if you were not satisfied beyond reasonable doubt of the critical material thing, i.e, "I was diagnosed with prostate cancer in 1995", if you were not satisfied beyond reasonable doubt that that statement was actually false, if you think that there is a rational inference available that Mr. Finnie was diagnosed with prostate cancer in 1995, then that element is not made out. In other words, you could not find that element made out and you could not convict the accused because you would have to find all five elements made out before you could convict him. 71. If you thought that the statement was partly, if you were satisfied, for example, beyond reasonable doubt that part of the statement was false, the bit about being treated by Dr. Gonski and Royal North Shore, but you were not satisfied beyond reasonable doubt about the first part, "I was diagnosed with prostate cancer in 1995", then the accused would still be entitled to an acquittal on that count. Because the critical part of the statement is the part concerning the diagnosis with prostate cancer in 1995. I found that that is the material part of it. So that, if you are not satisfied that that part is false, then that element is not made out beyond reasonable doubt. If the element is not made out beyond reasonable doubt, element four, then the accused is entitled to a finding of not guilty on that count. 72. Now if we just put that to one side and look at element five as well. That is the intent part. That is the intent element of this offence. As I have explained to you, in relation to that you would have to be satisfied that the accused made the statement deliberately and dishonestly, knowing it was false. It would not be enough if it was a genuine mistake, however unreasonable that mistake was. There must be a deliberate falsehood to satisfy the intent requirement in element five but assuming that you were to find that the accused intended to mislead the Court, that is not sufficient to find the offence made out. Because it does not matter that the statement may have been made with intent to mislead the Court, if, in fact, the statement was possibly true, in other words if the Crown has not made out element four, then it does not matter how bad the accused's thoughts were, you still do not convict him." 47 In my opinion these directions were clear and correct. 48 I have quoted in paragraph 10 of these reasons, paragraph 10 of the remarks on sentence. I agree with what her Honour says in that paragraph. 49 I would not uphold Ground 5.

The Conviction Appeal: Ground 6 50 Dr. Anthony Tynan has been mentioned previously herein. 51 On 2 May 2005 the appellant was formally indicted; his pleas were taken; and a jury was formally empanelled. 52 Thereafter there ensued lengthy legal argument about various evidentiary matters. One of those arguments concerned the permissibility of any cross-examination of Dr. Tynan so as to elicit from Dr. Tynan that he had expressed at the committal proceedings an opinion that, when he had spoken to the appellant during 2002, he had formed the opinion that the appellant seemed to be genuinely concerned about his then having prostate cancer. 53 The course of that preliminary argument drew from her Honour a short judgment, delivered on 2 May 2005 and reading as follows: "The Crown objects to any cross-examination of Dr. Tynan along the lines of that which occurred at the committal proceedings on 1 April 2000 (Exhibit VD 12, page 21, lines 9 to 39). The cross-examination elicited from Dr. Tynan, a specialist urologist who saw the accused in 2001 and 2002, that, when he spoke to the accused in 2002, he formed the opinion that the accused seemed to be genuinely concerned that he had prostate cancer. The Crown's objection to the evidence is two-fold. First, that as a specialist urologist Dr. Tynan does not have specialised knowledge within the meaning of section 79 that would enable him to give that opinion about the accused's state of mind. Second, even if Dr. Tynan was adequately qualified to express an expert opinion within section 79, the basis of the opinion is not given, i.e., although there is evidence as to what the doctor told the accused, there is no relevant evidence about what the accused told the doctor. This is an objection based on Makita. In my view both the Crown's objections are well founded. The second might be able to be cured, but the first cannot. Dr. Tynan does not have appropriate specialist knowledge that would enable him to express an opinion about the accused's state of mind when he spoke to him in 2002. Consequently the evidence will be rejected." 54 In my opinion the ruling thus given by her Honour is, on its face, plainly correct. 55 When Dr. Tynan was eventually called to give evidence, learned counsel then appearing for the appellant attempted to cross-examine Dr. Tynan in a way which seems to me to have flown in the face of her Honour's ruling. 56 In cross-examination Dr. Tynan was asked some questions which gave rise to the ruling that is the subject of Ground 6. The relevant material is: "Q. Dr. Tynan, an ordinary GP requesting a PSA in the course of medical practice, can you comment on that please? A. I can only comment on policy and it is the recommended policy that before you order a PSA on a patient as a GP that you should counsel that patient or advise him as to what it could mean to him if it came back higher than normal. Q. And before a PSA is ordered in the protocol of what doctors are supposed to ask if they are ordering a PSA before ordering a PSA besides the counselling factor is it usually based on what the patient tells the doctor that he believes he has? A. Too many variables there. Q. You see, to be more precise, in this case I think you have already indicated and agreed at the committal and again agreed today that Mr. Finnie was apparently told by the people at the On Clinic that he had prostate cancer as his PSA was 180, but without any biopsy. So it would definitely appear to be from what you were told by Mr. Finnie that he had been to this On Clinic and that he had been told he had prostate cancer and, as you answered at the committal and I think again today, they were his words; that is correct, isn't it? A. They were his words. Q. And in terms of before ordering a PSA by a doctor would he first counsel and speak to the lay person and would it be fair to say that if a lay person was told by doctors, as asserted here by Mr. Finnie to you, would it be reasonable to assume that that lay person would then assume, wrongly or rightly, that he had --- CROWN PROSECUTOR: I object to that, your Honour. BONNICI: That was in the committal and --- CROWN PROSECUTOR: I object to that, your Honour. HER HONOUR: Yes, I reject that, Mr. Bonnici. Do you want me to give any reasons?" 57 The appellant's then counsel is not recorded as having given any answer to her Honour's question; but is recorded as having proceeded at once to his next question in cross-examination. 58 The question to which the Crown objected was in my opinion plainly objectionable. It called for the expression by Dr. Tynan of an opinion about a hypothetical assumption by the appellant. Such an opinion could not sensibly have been thought to have been based either wholly or substantially on Dr. Tynan's training, study or experience: see Evidence Act 1995 s 79. 59 I would not uphold Ground 6.

The Conviction Appeal: Conclusion 60 In my opinion none of the grounds of appeal against conviction has been made good. There was in my opinion no miscarriage of justice in the jury's finding that the appellant was guilty as charged in Count 1 of the indictment. The appeal against conviction should be dismissed.

The Sentence Application: Grounds 7 and 8 61 The appellant, when he stood for sentence, had an antecedent criminal history. In the wake of his conviction and sentencing he obtained various grants of conditional bail pending appeal. The progress of both the conviction appeal and the sentence application was conspicuously protracted. The relevant chronology is as follows:

11 December The appellant was released from custody in connection with other matters. Thereafter and until 22 September 2005 the appellant was at liberty on conditioned bail.

29 June Notice of intention to appeal filed. Expiry date: 29 December 2005.

22 September Appellant sentenced. Head sentence of imprisonment for 18 months. Non-parole period of 9 months: Commence: 22 September 2005 Expire: 21 June 2006 The appellant entered custody accordingly.

30 September Appeal bail granted, upon conditions by Patten AJ.

2006 25 January Extension of time for appeal granted to 29 March 2006

28 March Extension of time for appeal granted to 30 April 2006 31 May Crown request for bail review because of failure to prosecute appeal diligently. Review application listed for 9 June 2006

9 June Review application adjourned to 7 July 2006.

6 July Conviction appeal and sentence application called over and listed for hearing. 7 July Review application withdrawn. 17 July The Director of Public Prosecutions signs a notice of a Crown appeal against sentence. 18 July The institution of the Crown appeal is notified to the appellant. 62 The learned sentencing Judge assessed as follows the objective culpability of the offence: "13. As far as the objective seriousness of the offence is concerned, any offence against s 319 strikes at the heart of the judicial system. The community generally is the victim harmed by such offences. Consequently, general deterrence plays an important part in relation to sentencing for such offences. The offender was the instigator and the intended beneficiary of the act in question in this case. The offence was committed while the offender was in custody in relation to matters of dishonesty. The offence was intended to influence the grant of bail. The grant of bail is an important aspect of the criminal justice system, although an intended perversion of a bail application is not generally as serious as an intended perversion of a trial or sentencing proceedings. 14. Fortunately, in this case, a perversion was averted. No damage to the system actually resulted because bail was not granted on the basis of a condition of prostate cancer. However, Judge Coorey was minded to grant bail if that condition was established. In seeking bail, the offender was not motivated to escape. Nor was he motivated by any other such serious motive. His motive was to obtain proper medical attention and the best possible medical evidence to present to court as well, no doubt, to enjoy his freedom. Further, it must be noted that testing could not have shown that the offender had prostate cancer. It could only have revealed that he did not have prostate cancer. 15. In these circumstances, the offender contends that the level of objective criminality of this offence is very low indeed, so low that it would justify the imposition of a suspended sentence rather than a sentence of full-time imprisonment. 16. I do not agree with that submission. In my view, the objective seriousness of the offence is in the mid range, although it is towards the lower end of the mid range. Consequently, in the absence of extraordinary circumstances, I would impose a sentence of full-time imprisonment." 63 The description "the lower end of the mid-range" is, in my respectful opinion, unhelpfully imprecise. The available statutory range is one that extends from a penalty other than a custodial sentence of some kind, to a penalty of full-time imprisonment for 14 years. The ultimate question for her Honour was, therefore, where in that range she saw the offence as falling. The answering of that question depended upon the correct identification of the relevant objective and subjective aspects of the individual case; and then, the correct balancing or synthesising of all of those aspects so as to produce a just end result. 64 What her Honour says in paragraphs 13 and 14 of the quoted remarks is, in my opinion, both clear and correct; and says all that needed to be said about objective culpability. At that stage of the relevant process of reasoning, it was, in my respectful opinion, certainly open to her Honour to take the view that the particular offence, looked at only in terms of its objective culpability, lay towards the lower, rather than the higher, reaches of the aforesaid statutory range. Whether that view justified an end result of a non-custodial sentence of some kind, depended upon her Honour's identification and assessment of the relevant subjective aspects of the particular case. Her Honour, in her remarks on sentence, deals in all appropriate detail with those subjective matters. There is no doubting the appellant's actual medical history; and there is no denying the imperfections, frequently significant, of the health care available to prisoners in this State's gaols, a matter expressly taken into account by her Honour. It is, I think, unnecessary to canvass the entirety of her Honour's treatment of the various subjective matters; but I think it appropriate to quote in terms paragraphs 30, 31 and 32 of the remarks on sentence: "30. Mr. Boronstein said that further incarceration would result in a major depressive illness. That is a matter of concern because Dr. Shafer, who was formerly a doctor with Justice Health, gave evidence to the effect that health care in New South Wales prisons is far from perfect. Insofar as access to psychologists is concerned, there is a long waiting list. When the offender was in custody previously and was suffering from depression, she herself, administered quite a lot of counselling, simply because of the difficulty of the offender gaining access to a psychologist. 31. The net effect of the evidence about the offender's medical condition and its relationship to imprisonment is that appropriate treatment has been - and presumably will be available - for his heart disease, there is not much current treatment that is required in relation to the prostate problem, and that treatment for depression will be somewhat difficult to come by. However, the offender will be able to access appropriate medication for all of his problems. 32. The offender submits that there are extraordinary circumstances which mean that, although I have categorised the offence as within the mid range of objective seriousness, a sentence of full-time imprisonment should not be imposed. Central to this submission is a reliance on the offender's age and, more importantly, on his medical condition and the lack of access to appropriate facilities within the prison environment. As I have said, while I accept that health care in New South Wales prisons is far from perfect and there may be some delays and difficulties in relation to the offender receiving appropriate treatment, with the possible exception of receiving sufficient treatment from a psychologist, appropriate health care will be available." 65 I see no error in any part of that analysis and reasoning. 66 Neither can I see any error in her Honour's conclusion that a fair synthesis of the relevant objective and subjective aspects of the appellant's case called for the passing of a sentence of imprisonment. Her Honour settled upon a sentence of imprisonment for 18 months. As is normally the case, various other sentences have been put forward as being at least broadly comparable and as justifying the proposition that a head sentence of 18 months fell outside the scope of a sound sentencing discretion. The number of suggested comparable cases is in any case small; and some of the cases entailed some discounting of sentences in consequence of a plea of guilty. I am unpersuaded that this material demonstrates that the term of 18 months set for this appellant is manifestly excessive. 67 It is submitted for the appellant that her Honour, having decided to pass a sentence of imprisonment for 18 months, both could and should have ordered, thereupon, either that such sentence be served by way of periodic detention; or that such sentence be wholly suspended upon the appellant's entering into some appropriate recognisance. 68 On 22 September 2005, when the appellant stood for sentence, he was then subject to another sentence of imprisonment which was not subject to an order suspending its operation. That being so, her Honour was not empowered to order that the sentence passed by her upon the appellant be suspended: see section 12(2) of the Crimes (Sentencing Procedure Act) 1999 (NSW). Further, the appellant, when he stood for sentence, had previously served full-time imprisonment for more than 6 months; and her Honour could not therefore make a periodic detention order in respect of the sentence passed by her upon the appellant: see section 65A of the Crimes (Sentencing Procedure) Act. 69 If the view be taken that a head sentence of imprisonment for 18 months is not manifestly excessive, then in my opinion it was well open to her Honour to find, as she did, special circumstances justifying an adjustment in the appellant's favour of the appropriate non-parole period. Her Honour set a non-parole period of one-half of the head sentence; and I perceive no error in her Honour's having done so. 70 In my opinion leave to appeal against sentence should be granted; and thereupon the substantive appeal against sentence should be dismissed.

The Crown Appeal against Sentence 71 The appellant was sentenced on 22 September 2005. The Crown appeal was filed on 17 July 2006: that is to say, 10 months later. 72 The principles upon which this Court acts when considering the effect of delay upon an otherwise persuasive Crown appeal are summarised conveniently by Hunt CJ at CL in Reg v Hallocoglu (1992) 26 NSWLR 67 at 79G-80F. In my opinion a delay of 10 months in the filing of a 2006 appeal requires, in the light of Hunt CJ at CL's explicit warnings, some clear and convincing explanation. No such explanation is presented by the Crown. 73 In such circumstances I would need to be persuaded that there was an extremely strong case to be made against the sentence under appeal before I would interfere, at the instance of the Crown, with that sentence. 74 I have considered the Crown's written submissions, and in particular the submissions on the topic of comparable cases. I have considered also the well established constraints governing any re-sentencing in the wake of a successful Crown appeal. 75 I am unpersuaded that the sentence passed upon the appellant is so manifestly inadequate that this Court should disturb it. Even were I of the contrary view, I would nevertheless dismiss the appeal, in the exercise of this Court's undoubted discretion in that behalf, by reason of the extreme and unjustified delay in the bringing of the Crown appeal.

Ancillary Matters 76 [1] The appellant put before the learned sentencing Judge a letter - Exhibit 4 in the proceedings on sentence - in which he speaks of personal embarrassment, even humiliation, to which he has been exposed during previous incarceration and by reason of various aspects of his medical condition. It is, as well, clear that such condition needs appropriate, and appropriately humane and tactful, treatment. It is in my opinion appropriate to append to the formal orders disposing of the appeal a recommendation to the Commissioner of Corrective Services that, to the fullest extent consistent with the reasonable requirements of prison administration and discipline, the appellant when taken into custody:

be classified with the maximum expedition so as to separate him from hardened criminals;

be afforded the privacy appropriate to his medical condition;

be monitored constantly and treated properly and appropriately for that condition.

[2] On 5 July 2006 the appellant filed, by his senior counsel, an application for an extension of time within which to appeal against conviction and to apply for leave to appeal against sentence.

It is, I apprehend, uncontroversial that such extension should be granted.

[1] that the appellant be granted any extension of time necessary to permit of the prosecution of his appeal against conviction and of his application for leave to appeal against sentence;

[2] that the appeal against conviction be dismissed;

[3] that leave be granted to appeal against sentence;

[5] that the Crown appeal against sentence be dismissed; 78 I would append to those orders a recommendation by the Court to the Commissioner of Corrective Services that, to the fullest extent consistent with the reasonable requirements of prison administration and discipline, the appellant when taken into custody: 1. be classified with the maximum expedition so as to separate him from hardened criminals;

be afforded the privacy appropriate to his medical condition;

be monitored constantly and treated properly and appropriately for that condition. 79 SIMPSON J: I agree with Sully J 80 LATHAM J: I agree with Sully J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Finnie v Regina and Regina v Finnie [2007] NSWCCA 38

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