Khoury v R

Fresh evidence 101The application for leave to appeal was listed for hearing on 28 March 2011. By Notice of Motion filed on 23 March 2011 the applicant sought additional orders, including that he be granted leave to rely upon additional evidence. The additional evidence was identified as:

• two psychological reports of Mr Timothy Watson-Munro dated 17 May 2010 and 18 October 2010;
• a psychiatric report of Dr Olaf Nielssen dated 19 October 2010;
• three psychiatric reports of Dr Bruce Westmore dated 18 October 2010, 19 October 2010 and 20 October 2010;
• an affidavit of counsel who had represented the applicant at sentencing sworn on 10 November 2010. 102The questions to which the proposed fresh evidence are directed concern the level of the applicant's intellectual functioning, and his mental and/or psychological condition. There was no such evidence provided to the sentencing judge. An explanation for its absence was given in counsel's affidavit. 103The Crown objected to the reception of this evidence on the basis that it does not come within the principles applicable to the admissibility of fresh evidence with respect to applications for leave to appeal against sentence. Since the Court was not in a position to rule upon the application on the date allocated for hearing, the Crown sought and was granted leave to produce its own additional evidence in response, of the same kind (ie psychiatric and/or psychological reports) after the conclusion of the hearing. Since that time the Court has received an affidavit sworn by a solicitor employed by the Director of Public Prosecutions, annexing a report of Dr Susan Pulman, psychologist, dated 18 March 2011, and two reports of Dr Yvonne Skinner, psychiatrist, dated 18 March and 13 April 2011. The principles applicable to the tender of fresh evidence in applications for leave to appeal against sentence 104The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. 105The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1)that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2)that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. 106I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake , per Kirby J, at [63]. 107"Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. 108If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham . 109It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both critera. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: "6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 110A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed . In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. 111The issue has arisen, and the principle I have stated has been applied, in a number of cases concerning applicants who have, post sentencing, provided assistance to prosecution authorities: Scullion v R (NSWCCA, 15 July 1992, unreported); JM v R [2008] NSWCCA 254; R v Willard [2001] NSWCCA 6; 120 A Crim R 450; Munday (supra). 112The same principle would, no doubt, be held to apply where additional evidence of a medical nature is sought to be adduced on appeal, but where the relevant condition did not exist at the time of sentencing. 113Too rigid an application of the principle clearly has potential to be the cause of injustice, and has led to the development of the sub-set of evidentiary propositions peculiar to the admission of additional evidence in applications for leave to appeal against sentence. Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; "proper grounds" must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217. 114Two classes of case have emerged. I have already referred to cases in which evidence of post sentencing assistance to authorities has not been admitted. However, in other cases, where it has been held that the circumstances existed at the time of sentencing, even if not put before the sentencing judge, the evidence may be admitted. An example is R v Many (1990) 51 A Crim R 54. An extension occurs where there is some evidence of assistance, but subsequent events show that its significance was not fully appreciated: Springer v The Queen [2007] NSWCCA 289; 177 A Crim R 13. 115Another, and increasingly common, category concerns medical evidence. Examples of these are R v Abbott (1984) 17 A Crim R 355; R v Ehrenburg (NSWCCA, 14 December 1990, unreported ); R v Fordham (1997) 98 A Crim R 359; R v Ashton [2002] NSWCCA 498; 137 A Crim R 73; Iglesias v R [2006] NSWCCA 261; Stumbles v R [2006] NSWCCA 418; Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1. 116In Abbott , one relevant consideration was that the applicant had been incompetently represented, with the result that evidence that could have been available as to her psychiatric condition was not presented. Similar arguments were, on the facts, rejected in R v Goodwin (1990) 51 A Crim R 328 and Stumbles . 117Caution must be exercised in the admission of the evidence. As I have already indicated, in Lanham , it was held that a proper basis for the admission of the evidence must be established. In Ehrenburg , Loveday J, with whom Gleeson CJ agreed, described the case as "most unusual"; Samuels JA, who also agreed, cautioned against allowing sympathy to lead the Court, against its duty to the community, to make an error of principle. In Ashton , Howie J warned that the Court must be careful to maintain a principled approach in dealing with appeals before it, and be scrupulous to ensure that there is a proper basis for receiving evidence of events that occur after sentence where there is no error established in the sentence imposed. 118One question which has arisen, but not, so far as I am aware, finally decided, concerns the proper identification of the evidence that is said to have been unavailable, or not presented, at the time of sentencing. That was expressed by Basten JA in Einfeld in the following way: "45 Whether the relevant 'event or circumstance' is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV). ... 50 ... there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently." 119In Fordham , Howie AJ (as he then was) referred to a psychological report that had been prepared after sentencing. He held, accordingly, that the report was either fresh or new evidence (and admissible only if proper grounds were established). 120For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing. 121That the evidence may cast light on circumstances known, but not fully appreciated, at sentencing, does not dictate that it will be admitted. The judgment remains a discretionary one. It is proper for the Court examine the circumstances of, and any explanation for, the non-production of the evidence - a deliberate decision on the part either of the applicant, or his or her legal representatives, ignorance in the applicant of the significance of the evidence, resulting in its not being communicated to the legal representatives, incompetent legal representation. At the outer limits, the cases also include those in which post sentencing circumstances are taken into account as relevant to known pre-sentencing circumstances (for example, Springer ). Also relevant will be the potential significance of the evidence to have affected the outcome at first instance (for example, Ashton ). The proposed evidence 122In his affidavit counsel who represented the applicant at sentencing deposed to having had great difficulty in conferring with the applicant prior to the sentencing proceedings. He expressed the view, in effect, that the applicant was in denial, and refused, or was unable, to confront the reality of the potential sentence. He recounted a conversation with the applicant, in which, counsel said, he suggested to the applicant that the applicant was incapable "of mentally coming to grips with what has occurred to you", and that he may need "medical help". He said that the applicant replied: "That is ridiculous. I am a priest, I am not mad. I have a lot of work to do and a lot of people depend on me. I don't have time for psychiatrists and I certainly don't think I am mental. I am offended you think that way." 123Counsel said that he felt somewhat intimidated by this response, which had the effect of deterring him from pursuing the question of "psychiatric assessment and intervention". He added that the applicant kept his wife and adult children out of their conferences, and that the atmosphere generally was "most uncomfortable", and that, on the day of sentencing, the applicant did not allow any member of his family, other than his brother, to accompany him. (This is difficult to reconcile with the applicant's evidence in the proceedings on sentence, elicited by his own counsel, that the applicant's wife and children were unable to attend because of anxiety.) 124Counsel then said that it did not occur to him to call psychiatric evidence. He said that despite having been warned of the real possibility of a prison sentence, the applicant told nobody that, on the evening sentence was to be imposed, a party had been arranged for his son's 21 st birthday, which he fully expected to attend. 125I turn now to deal with the various expert reports on which the applicant seeks to place reliance as fresh evidence. 126Mr Watson-Munro is a consultant forensic psychologist. In his first report, dated 17 May 2010, he noted a number of circumstances, all drawn from the history he took from the applicant, which he considered to be of relevance. They were:
• in June 2007 the applicant suffered a heart attack which he claimed was stress related;
• the applicant had "an extraordinarily onerous workload"; this included a large geographical area, very long hours and demanding and occasionally traumatic duties, including administering the last rites to terminally ill patients;
• the applicant was also involved in other community related work, and assisted the Department of Community Services in difficult family situations;
• the applicant administered Mass, and undertook regular and intensive marriage guidance and counselling;
• the applicant's family members have been traumatised by his current situation, adding to his own significant emotional distress;
• the applicant's mother died in March 2006;
• the ICAC intervention took place on the day after her funeral, and he was interviewed by ICAC officers a week later. In Mr Watson-Munro's opinion, the applicant's grief and depression occasioned by his mother's death had a deleterious impact upon his capacity to deal with ICAC;
• despite the protracted and onerous nature of his workload, the applicant never had more than one clerical assistant at any one time. All of these are factual matters, of which evidence could have been elicited from the applicant. Indeed, that he suffered a stress-induced heart attack in 2007 was the subject of evidence given by him. 127Mr Watson-Munro went further, and provided a professional opinion based on this factual background. He expressed the view that the applicant had been suffering from a range of undiagnosed and hence untreated symptoms for a number of years, inclusive of significant anxiety and at times intense reactive depression. 128In his report of 18 October 2010, following psychometric testing, Mr Watson-Munro described the applicant as "cooperative though somewhat disoriented". He found, by psychometric testing, deteriorating cognitive ability over the years. He described "a prodigious work ethic", involving seven days a week, up to 12 hours per day. He described very poor health, including morbid obesity, congenital coronary disease, and sleep apnoea. 129Mr Watson-Munro diagnosed an adjustment disorder, related to the "unrelenting nature" of the applicant's work. He diagnosed severe depression and substantial anxiety. Importantly, having regard to the argument now advanced on behalf of the applicant, he found the applicant to be functioning in the low average category of intelligence, a level significantly less than would be expected for a person discharging his duties. 130Dr Nielssen is a psychiatrist. When he reported, he had available to him both reports of Mr Watson-Munro. He recorded a history similar to that of Mr Watson-Munro. Dr Nielssen was of the view that the applicant's "limited intellectual ability" suggested that he was incapable of performing complex administrative work, and had a reduced understanding of the effect of his conduct. He found no sign of the depression on which Mr Watson-Munro had commented. 131Dr Westmore added little, but did express the opinion that the applicant's offending behaviour does not arise from an inherent anti-social personality disorder. He thought that factors of relevance included his feelings of compassion for the mothers of Mr Tourni and Mr Khouzame (although this did not extend to others who he admittedly also did not properly supervise). Dr Westmore thought that a degree of naivety may also have been present, and that all these factors played a role in the offending behaviour. He thought that the risk of his re-offending was low to non-existent. 132Each of these experts took a history which included assertions by the applicant that he had not been properly informed about his obligations in participating in the community service orders arrangements. It will be necessary to consider this below. Applying those principles to the present case 133This case does not fit easily into any of the precedents I have discussed. It crosses the boundaries of some of the categories of cases I have discussed. 134The evidence showed that the applicant made a deliberate, though spontaneous, decision not to obtain the evidence. Although the evidence included evidence of a psychiatric condition (depression and anxiety) the real focus of the argument lay on Mr Watson-Munro's findings concerning the applicant's level of intellectual functioning. That, in my view, provides part of the explanation for his refusal to participate in psychiatric or psychological examination and testing. Also relevant is the less than firm and fearless advice given to him by counsel (who, admirably enough, exposed his own inadequacy in his affidavit). It was not suggested that this inadequacy reached the level of incompetence referred to in Birks and in Abbott . It is, nevertheless, a relevant consideration. 135I have earlier referred to the question of whether it is the opinion of the experts, or the substance of the condition, that is the subject of the evidence. That is, in the present case, a highly relevant question. If the Fordham approach is to be followed, it would be a simple matter to hold that the reports of the various experts, not having been in existence at sentencing, meet the first limb of the fresh evidence definition. However, such a finding would, in the light of s 6(3), also mean that they cannot establish error in the sentencing process, even in the extended meaning to which I have alluded. 136In my opinion attention is to be directed, not to the form in which the evidence is presented, but to the substance of the evidence. What is now sought to be put before the Court is evidence of the applicant's psychological and mental (intellectual) condition as at the time of sentencing. Necessarily that takes the form of reports. But the condition, it is clear, is said to have been in existence at sentencing, and, indeed, at the time of the offences. That is the whole point of the evidence. The evidence is therefore not excluded on the basis of s 6(3). 137By reason of the second limb of the definition of fresh evidence, however, the evidence does not qualify as fresh. It plainly could have been obtained in the exercise of reasonable diligence. 138In Many , the Court accepted the applicant's explanation for failing to produce evidence of his assistance to authorities as sufficient to justify reception of that evidence on appeal. 139In the somewhat unusual circumstances of this case, I would conclude that, as a result of the combination of circumstances - the inadequacy of the legal advice given to the applicant, and the strength of the evidence, the evidence ought to be received. 140That means that the Court must consider the additional evidence also provided by the Crown. Dr Skinner appeared to take issue with the intelligence level assessed by Mr Watson-Munro. This, it seems, was because that assessment showed the intelligence to be lower than would be expected of a person with the applicant's qualifications. She accepted that the applicant might have been functioning at a level above his ability, but proposed that, at the time of Mr Watson-Munro's testing, he might have been affected by anxiety. As I read Dr Skinner's report, she reached this conclusion because she accepted that the applicant was functioning well in performing his complex religious duties and was highly regarded as a counsellor, and that he fluently speaks a number of languages. The difficulty with this reasoning is that the latter observations are all based upon acceptance of the applicant's own report. That was questioned by Dr Nielssen. Dr Skinner thought that the offences could not be explained by intellectual deficit, but might be explained by excessive workload and insufficient time to learn what was expected of him. She thought the reasons for the offending were: "... multiple factors including his failure to appreciate the serious responsibility of his position as community order supervisor, time pressures due to his heavy workload, his need to feel that he was helping parishioners." Dr Skinner did reserve the possibility of revising her judgment about the applicant's intellectual capacity if testing by another psychologist confirmed the result of Mr Watson-Munro. However, when that happened, she adhered to the view she had originally expressed. 141Dr Pulman's results in fact were similar to those of Mr Watson-Munro. She assessed the applicant as functioning within the low average range of intellectual ability, below the level expected given his responsibilities. She thought it likely that his actual abilities had always been well below the level expected of a parish priest. 142Notwithstanding this opinion, and her express reservation of the possibility of revising her opinion, Dr Skinner, in a subsequent report, maintained the view she had previously expressed. She said that low average to average intellectual functioning would not explain the offences. 143She repeated that, at around the time of the offences the applicant had functioned effectively as a parish priest, was capably performing complex religious duties, and was highly regarded as a counsellor. In this she continued to rely upon the applicant's self assessment. Her opinion, accordingly, remained unchanged. 144I would give little weight to these opinions. As I have previously mentioned, the basis for Dr Skinner's opinions was solely information provided to her by the applicant. Dr Skinner can not have known how effectively he was functioning as a parish priest, how capably he was performing his religious duties, or how highly regarded he had been as a counsellor. The foundation for the opinion expressed is quite inadequate. Contrary to her original position, Dr Skinner paid no credence to the findings of Dr Pulman. 145For my part, I would accept the findings of Dr Pulman, and those of Mr Watson-Munro, Dr Nielssen and Dr Westmore. 146In my opinion, the applicant's low level intellectual functioning would have been an extremely relevant circumstance had it been made known to the sentencing judge. 147I mentioned above that there was secondary evidence concerning the extent to which the applicant had been apprised of his obligations as a community supervisor of community justice orders. The evidence is not sufficient to justify a finding that there was, within the system, some failure of communication. Far more relevant, in my opinion, is the incapacity of the applicant to reach an appreciation of obligations with or without instruction. 148On the basis that two of the pleaded grounds of appeal have been made out, and that the fresh evidence that I would admit establishes error in the sentencing process, I would grant leave to appeal, allow the appeal, and re-sentence the applicant. 149I could not be satisfied that any of the individual sentences was, even in the light of the additional material, manifestly excessive. Indeed, each individual sentence was lenient. It is in the accumulation of the sentences, and in the failure to translate the finding of special circumstances into the overall sentence, that I consider error is demonstrated. 150In sentencing, there is another consideration. That concerns the sentences imposed on the various co-offenders. 151I wish to make it clear that no ground of appeal raised any issue of parity, and this is not a finding of error on that basis. But, in re-sentencing, this Court must have regard to the sentences imposed on the co-offenders. The most relevant of these is, of course, that imposed on Mr Ishac, to which I will come. 152Mr Tourni faced one count of doing an act with intent to pervert the course of justice, and two of giving false evidence to an ICAC inquiry hearing. On the first count he was, at first instance, sentenced to a term of imprisonment of 20 months, made up of a non-parole period of 12 months and a balance of term of 8 months. On each false evidence charge, he was sentenced to imprisonment for 6 months, to be served concurrently. The pervert the course of justice sentence was specified to be partially accumulated by 4 months, giving an overall sentence of 2 years with a non-parole period of 16 months. After appeal ( Tourni v R [2010] NSWCCA 317), the sentences were adjusted to produce an overall term of 20 months, with a non-parole period of almost 11 months and a balance of term of 9 months. 153Mr Khouzame pleaded guilty to one charge of doing an act with intent to pervert the course of justice and one of giving false and misleading evidence. He asked that three further offences (presumably of giving false evidence) be taken into account. On the charge of giving false and misleading evidence, he was sentenced to a fixed term of imprisonment for 6 months; on the pervert the course of justice (taking into account the additional offences), he was sentenced to imprisonment for 18 months, made up of a non-parole period of 12 months and a balance of term of 6 months. After accumulation, his overall sentence was a total of 20 months, with a non-parole period of 14 months, and a balance of term of 6 months. 154Mr Ishac pleaded guilty to three counts, one of doing an act with intent to pervert the course of justice, one of being an accessory to such an offence (which carries the same maximum penalty) and one of giving false evidence to a hearing of ICAC. He asked that four further false evidence offences on a Form 1 be taken into account. On the accessory count he was sentenced to imprisonment for a fixed term of 10 months; on the false evidence charge, to a fixed term of 6 months; and on the pervert the course of justice charge, and taking into account the Form 1 offences, to imprisonment for 22 months, made up of a non-parole period of 12 months and a balance of term of 10 months. Partial accumulation gave an overall sentence of 2 years and 4 months, with a non-parole period of 18 months, and a balance of term of 10 months. 155It is of some interest that, in Mr Ishac's case, his Honour expressly took into account the delay in bringing the charges. Apart from that, it is impossible to see why Mr Ishac, whose breach of trust was plainly greater than that of the applicant, was treated significantly more leniently. As I have said, parity was not raised as a ground of appeal, and it would be inappropriate to make any direct findings in that respect. 156Nevertheless, the sentences imposed on Mr Ishac are of considerable relevance, given that this Court must exercise the sentencing discretion afresh. I emphasise that the sentences that I am about to propose are not those that I would consider appropriate if I were approaching this sentencing exercise with a clear slate. The sentences imposed on the co-offenders, and the sentences I propose, are, in my opinion, markedly lenient when one considers the gravity of the offences. But justice must be done in context, and, here, the context includes the sentences imposed on the co-offenders, particularly Mr Ishac. 157I propose the following orders: (1)Leave to appeal against sentences granted; (2)Appeal allowed, sentences quashed; (3)In lieu thereof, the applicant be sentenced as follows: (i)On the charge of giving false and misleading evidence to an ICAC hearing: imprisonment for a fixed term of 6 months, commencing on 26 March 2010 and expiring on 25 September 2010; (ii)On the first charge of doing an act with intent to pervert the course of justice: imprisonment for a fixed term of 10 months, commencing on 26 April 2010 and expiring on 25 February 2011; (iii)On the second charge of doing an act with intent to pervert the course of justice and taking into account the four offences on the Form 1: imprisonment for 22 months, commencing on 26 May 2010, with a non-parole period of 12 months, which will expire on 25 May 2011; the head sentence to expire on 25 March 2012. (4)Pursuant to s 50 of the Sentencing Procedure Act, I would direct that the applicant be released at the expiration of the non-parole period, on 25 May 2011. 158The overall sentence I propose is a head sentence of 2 years with a non-parole period of 1 year and 2 months. 159DAVIES J : I agree with Simpson J. 160GROVE AJ : I agree with Simpson J.

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