MacKenzie v The Queen

High Court of Australia Dawson Toohey Gaudron Gummow and Kirby JJ MacKenzie v The Queen [1996] HCA 35

2. Set aside the order of the New South Wales Court of Criminal Appeal in the appellant's appeal to that Court.

1. In lieu thereof, order that that appeal be upheld, the convictions and sentence quashed and that there be a new trial.

The circumstances giving rise to this appeal are detailed in the judgment of Gaudron, Gummow and Kirby JJ (the joint judgment).

Two questions are raised by the appeal. The first is whether, by reason of the appellant's acquittal on counts of perjury under s 328 of the Crimes Act 1900 NSW, his conviction on alternative counts of perjury under s 327 of the Act was thereby unsafe and unsatisfactory. On that question we are in agreement with the joint judgment that the verdicts were not necessarily inconsistent and would reject that ground of appeal for the reasons advanced by their Honours.

The other question is whether there was a failure by the trial judge adequately to direct the jury on the difference between giving evidence which is knowingly false and that which is mistakenly false. Their Honours would uphold this ground of appeal on the footing that the direction given was inadequate, with the consequence that the appellant lost a chance of acquittal which was fairly open to him. We would also uphold that ground; accordingly we would allow the appeal. Our reasons for reaching that conclusion follow.

This ground of appeal does not go to an issue whether the appellant's convictions were unsafe or unsatisfactory. It goes to the adequacy of the trial judge's direction. It must therefore take into account not only the terms of any relevant direction but also any request for a redirection and whether at the end of the day it appears that the trial may have miscarried by reason of any relevant direction or the failure to give such a direction [1] . The respondent's reliance upon decisions such as M v The Queen [2] , which are concerned with whether a verdict is unsafe or unsatisfactory, is therefore misplaced.

1. See Wilde v The Queen (1988) 164 CLR 365 at 371-372. 2. (1994) 181 CLR 487.

A feature of the trial, one which was commented on by the Court of Criminal Appeal and which has been noted in the joint judgment, was the dogmatic way in which the appellant dealt with his recollection of events and his unwillingness, almost to the last, to admit the possibility that he might have been mistaken in that recollection. His evidence as to how the yellow stickers came to be on the documents at a time when according to him there was no discolouration of the documents, measured against the evidence of the fingerprint examiners, could have pointed to a conspiracy among a number of police officers, though with no apparent purpose. The appellant did not allege such a conspiracy but the jury may well have thought that an inevitable consequence of accepting his evidence. Equally, the appellant insisted that the plan of the leased property formed part of the documents seen by him when they were shown to his client, Barbaro, though this was denied by the police witnesses. As the Court of Criminal Appeal observed [3] :

There is no reason to believe, and it was never suggested, that there was any ulterior purpose for the separation of the document into two parts at some time before the committal proceedings in May 1990, although no one now professes to know why, or by whom, that separation was made. 1. R v MacKenzie (1995) 82 A Crim R 473 at 497.

The joint judgment suggests there is another explanation, namely, that a person who has made a true mistake will be convinced that he or she is correct. This explanation was offered by a character witness called on behalf of the appellant. The witness did not purport to have any qualifications for what he said but nothing turns on that since the proposition could well have been put in argument and the jury asked to use their own knowledge of human nature. Equally, of course, the jury were entitled to reject the explanation. As the Court of Criminal Appeal noted [4] , the jury were entitled to be struck by the fact that, at his client's trial, the appellant was at pains to explain why he could not be mistaken.

1. R v MacKenzie (1995) 82 A Crim R 473 at 495-496.

Nevertheless, the trial judge was obliged to make clear to the jury the difference between honest mistake and deliberate falsehood. The Court of Criminal Appeal said that the trial judge had, "a number of times, told the jury that if they were to convict the appellant they had to rule out the possibility that the (assumed) false evidence was given inadvertently or by mistake" [5] . The Court of Criminal Appeal did not refer specifically to those occasions; indeed, the impression gained from a reading of the Court's judgment is that the ground now under consideration was not at the forefront of the appellant's argument in that Court. However, some reference to these occasions is called for.

At the outset of his charge to the jury, the trial judge James J spoke of the need to assess the reliability of the evidence of the witnesses, adding that "even a witness who is honestly trying to give a truthful account may be an inaccurate witness in whole or in part and, on that score, unreliable". His Honour was speaking in general terms and having regard to the fact that much of the evidence was about what happened on 1 April 1990, more than five years earlier.

James J then reminded the jury that the appellant, though not obliged to, had given sworn evidence and exposed himself to cross-examination. He spoke also of the evidence of the character witnesses called on behalf of the appellant, directed to showing that "it is unlikely that he would have deliberately given knowingly false evidence in a court case to procure a client's acquittal" (emphasis added). Later his Honour spoke of the elements of the offences with which the appellant was charged. One of these, he said was

that those statements made by Mr MacKenzie in giving evidence were made deliberately and intentionally and not through inadvertence or mistake, or because the accused was taken by surprise when he was giving evidence (emphasis added). His Honour repeated this direction in virtually identical terms almost immediately afterwards.

James J then spoke of "the fourth element of the offence charged", which he identified in these terms:

that at the time the accused made those statements in giving evidence, the accused knew that they were false or at least did not believe that they were true. It is sufficient for the Crown to prove beyond reasonable doubt either that the accused knew that the statements were false, or that the accused did not believe that the statements were true. Again, his Honour said much the same thing shortly afterwards. James J then went through the evidence in considerable detail in the course of which he mentioned again "the fourth element".

Just before he concluded his charge to the jury James J asked if counsel had any matter to raise. Senior counsel for the appellant mentioned some matters, one in the following terms:

I would ask your Honour to point out to the jury that for a mistake of fact to negative mens rea, it is not necessary that it be a reasonable mistake. It is a question whether it is genuine, not whether it is reasonable. There followed an exchange between his Honour and senior counsel in which the former questioned whether mistake really came into it since the Crown had to prove that the appellant knew his statements were false or believed them not to be true. At the end of this exchange, which included a possible redirection suggested by his Honour, senior counsel said: If your Honour will not give the direction in the terms I sought it, I would not seek any further direction.

James J then went through, with the Crown Prosecutor, the various matters raised by senior counsel for the appellant. This exchange occurred:

His Honour: On the next matter it seems to me that if it is plain to the jury that what they have to be satisfied of is actual knowledge or absence of actual belief that mistake of fact does not really -

Crown Prosecutor: We submit it does not arise as an independent issue. The state of mind is knowledge of falsity or lack of belief in truth - I should say absence of belief in truth.

We do not think it right to say that mistake did not come into the question of the appellant's "actual knowledge or absence of actual belief". No matter how dogmatically he appeared to give his recollection of events, he did say at the end of his cross-examination:

I can only reiterate what I have said; that I don't believe that was mistaken. The evidence which I gave was the honest, one hundred per cent clear of what I saw on that date and that's where I stand. Now, if my memory has not served me well, that would be an innocent mistake but I don't believe that I have made a mistake.

Even if the appellant had not given that evidence, the possibility of mistake was still a relevant consideration for the jury. It is another question whether it would have been helpful to distinguish between a genuine mistake and an unreasonable one. His Honour spoke of the need for the appellant's statements to be made "deliberately and intentionally and not through inadvertence or mistake, or because the accused was taken by surprise" [6] . In the circumstances it could hardly be said that the possibility of mistake was not something for the jury to take into account.

1. This formulation appears to have been taken from Watson and Purnell, Criminal Law in New South Wales, (1981), vol 1a, par 977.

Thereafter the jury were recalled and James J gave them further directions, part of which was as follows:

An element of the offences charged is that at the time the accused made the statements alleged to be false, he knew, that is he had actual knowledge, that the statements were false, or he did not believe them to be true, that is, there was an absence of any actual belief on the part of the accused that they were true.

If the accused did not have such actual knowledge it would not matter how it came about that he lacked that actual knowledge. If there was an absence of belief on the part of the accused, it would not matter how it came about that there was that absence of belief.

The jury retired once more. Senior counsel for the appellant said there were "some matters which have arisen from your Honour's further directions". One of these matters, counsel expressed as follows:

Toomey: I had a little difficulty with your Honour's direction on the question of falsehood. With great respect, I lost it.

His Honour: It unfortunately becomes very difficult because of the combination of knowledge and absence of belief.

Toomey: I fear that I have to submit what your Honour said was not what your Honour agreed you would direct the jury on.

His Honour: Perhaps we ought to try and find what was said.

The court reporter then read what James J had said earlier. The two paragraphs have already been quoted. There followed a further exchange between his Honour and senior counsel. James J said that during the luncheon adjournment he had "endeavoured to draft something" but he was not "happy with anything that I have arrived at. I am wondering whether I should simply not withdraw it." Senior counsel said: "I would be content with that."

His Honour: I think I should reconfirm that an element of the offences charged is actual knowledge or did not believe.

The jury were recalled again. James J said that he had given a direction which he proposed to withdraw. He repeated the passage set out earlier which reads: "An element of the offences charged did not believe them to be true" and said: "That part of what I told you I do not withdraw and that part of what I told you is correct." His Honour then read out the balance of that paragraph and the following paragraph and said:

I have on reflection reached the conclusion that those subsequent things that I told you were either wrong or confusing and I direct you to completely disregard them.

The jury then retired to consider their verdict. The Court of Criminal Appeal viewed this aspect of the trial in the following way [7] :

James J had earlier referred to mistake in a way that identified honesty as the issue, and had said nothing that could possibly have been understood as suggesting that some kind of objective test of reasonableness entered into the matter. Nor, it appears, had the Crown made any such suggestion. James J prudently decided not to raise such an issue for the purpose of explaining its irrelevance. Trial counsel then said that, if the direction he sought was not to be given, he did not want anything further said on the subject. 1. R v MacKenzie (1995) 82 A Crim R 473 at 500.

It is apparent that, at trial, senior counsel for the appellant put his dissatisfaction with the judge's direction as strongly as he might. And it cannot be claimed that, by saying that he did not want to say anything more on the subject, counsel was in any way abandoning his dissatisfaction. The question remains however whether the charge to the jury was so inadequate or confusing that the appellant thereby lost a chance of acquittal which was fairly open to him.

In that regard, although there were several requests on behalf of the appellant for further directions and a rather unsatisfactory resolution of the matter between judge and counsel, the question for this Court is in effect what impact the directions that the jury did hear might have had upon them and whether there were inadequacies in the charge that might have caused the trial to miscarry.

James J did tell the jury, in so many words, that the Crown had to prove that the appellant deliberately, knowingly gave false evidence, that his statements were made intentionally and not through inadvertence or mistake, that at the time he made the statements the subject of the perjury charges he knew that they were false or did not believe that they were true.

Up to that point we do not think there could be real complaint about his Honour's direction save that his reference to mistake lacked elaboration. It is true that he had said nothing to the effect that a mistake did not need to be reasonable. But the Crown had not suggested any test of reasonableness.

However, the waters became muddied thereafter when the jury were recalled and James J gave them the further direction which encompasses two paragraphs. His Honour read the two paragraphs to the jury, told them that the bulk of the first paragraph stood but that they were to disregard the balance. That left the jury with a direction that "An element of the offences charged is that at the time the accused made the statements alleged to be false, he knew, that is he had actual knowledge, that the statements were false, or he did not believe them to be true".

The matter has to be approached by reference to what James J told or did not tell the jury. The exchanges between senior counsel for the appellant and his Honour are important in order to explain why further directions were given but they were in the absence of the jury which heard only what, relevantly, has been quoted in these reasons. Given the various references to what the Crown had to prove and the withdrawal of part of an earlier direction, it was important that the jury retire with a clear picture of what had to be established before the appellant could properly be convicted. And while they had been told more than once of the need to be satisfied that the appellant knew that his statements were false or did not believe them to be true, the question of mistake had virtually disappeared by the time they retired. Indeed the jury might well have thought that it did not truly fall for their consideration. In other words the direction given to them just before they retired was inadequate and confusing.

In R v Lowe [8] where the appellant was charged with having wilfully made a false statement, Cussen J said that the case should have been left to the jury with a direction to this effect:

In order that you should convict the defendant on this indictment you ought to be satisfied beyond reasonable doubt that the statement was not only untrue, but was wilfully false; for if you should think he made it mistakenly, it would not be within the Statute. The direction, in this present case, failed to meet the requirements identified by Cussen J in R v Lowe . This was not because of a failure to address the question of a reasonable or unreasonable mistake, but because of a failure to remind the jury of the need to take into account the possibility of honest mistake. The appellant may have lost the chance of an acquittal by reason of this failure. Accordingly the appeal must be upheld. 1. [1917] VLR 155 at 162.

We agree with the orders proposed by Gaudron, Gummow and Kirby JJ.

This appeal concerns two aspects of criminal procedure. It arises out of the trial and conviction of Mr Adrian MacKenzie (the appellant) on two counts of perjury under the Crimes Act 1900 NSW (the Act), s 327. The appellant was acquitted by the jury on two alternative counts based upon s 328 of the Act. In the facts of the case, and having regard to the way it was conducted, it is submitted that the verdicts are inconsistent, resulting in convictions which are unsafe and unsatisfactory. Additionally, the appellant complains about the lack of proper direction by the trial judge concerning the difference between evidence which is knowingly false and that which is mistakenly false.

In our view the appellant fails on the first point but is entitled to succeed on the second.

A solicitor gives evidence at the trial of a client

Before the events giving rise to his trial and conviction, the appellant was an experienced solicitor practising in the Griffith area of New South Wales. He enjoyed good standing. A number of character witnesses attested to his competence and reputation. He specialised in litigation and frequently appeared before courts, without counsel, to represent his clients.

On Sunday 1 April 1990, at about 7 am, the appellant was telephoned by a Mrs Barbaro, for whom he had previously acted. As a result, the appellant telephoned the Griffith Police Station. He was informed that members of the drug squad from Sydney had conducted a raid and were seeking the whereabouts of Mr Pasquale Barbaro, Mrs Barbaro's son. The police informed the appellant that Mr Barbaro was being sought in relation to a crop of cannabis found at a property in which, it was alleged, he was interested. Eventually, the appellant arranged, through the mother, for Mr Barbaro to meet him and to accompany him to the Griffith Police Station. So he did. There they met Detectives Bellis and Dolan. An interview was conducted. During the interview, the detectives showed Mr Barbaro certain documents which certainly comprised a lease of the property upon which it was said the cannabis plants were grown. A dispute later arose as to three questions:

1. The number of the documents shown to Mr Barbaro and whether they included a certificate of title and plan of the subject property.

2. Whether the documents shown exhibited the red or pink stain, typical of documents which have been submerged in a chemical substance (ninhydrin) used to disclose the presence on documents of fingerprints.

1. Whether Mr Barbaro had been permitted by police to handle the documents and whether he did so.

The documents referred to the property at Lenlin, south of Moulamein in south-western New South Wales, on which the cannabis plantation had been found. They identified six persons as lessors and a lessee named as "Tony Trimarchi" who gave an address in Sydney which proved to be fictitious. The prosecution case was that Mr Barbaro was "Tony Trimarchi". The way to establish this was by demonstrating that the instrument of lease carried fingerprints which, on expert and computer analysis, matched those of Mr Barbaro. For that reason, in advance of the interview, the documents had been immersed in the solution of ninhydrin. They consequently bore the characteristic pink discolouration at the time they were produced to Mr Barbaro and his solicitor, the appellant.

Mr Barbaro denied having anything to do with the lease or the property. He asserted that any fingerprints on the documents were not his. His explanation of how his fingerprints had come to be on the documents was that, in the presence of his solicitor, he had been permitted by the police to handle the documents at a time before they had been submitted to ninhydrin testing. The police denied those assertions. It was in this way that the three issues of fact, stated above, were raised and became important to the defence of Mr Barbaro.

During the interview of Mr Barbaro, Detective Dolan took notes of the conversation which took place. The appellant was later to concede that the notes represented a "substantially accurate record" of the conversation. Two yellow stickers were certainly attached to the three pages of the lease shown to Mr Barbaro and referred to in those notes. These were identified as indicating a point on the document next to two fingerprints which had been identified as being his. Mr Barbaro was charged. He made no admissions. The appellant appeared for him at committal proceedings in Hay, New South Wales, in May 1990.

During the committal proceeding, as he later stated, the appellant noticed for the first time that the lease had a distinct red colouration "as though someone had spilt beetroot over it". However, he did not question any of the police witnesses about any change in the appearance of the documents. Also during the committal, three pages of the lease were tendered. Two further parts of the lease document were separately tendered and, without objection, "reunited" with the first three pages. This second part included the plan and certificate of title containing three further fingerprints identified as those of Mr Barbaro. According to the police evidence, the three additional pages had earlier become detached from the rest of the lease, in a way which was not satisfactorily explained. They had been left in Sydney when the detectives travelled to Griffith to confront Mr Barbaro with the three pages carrying the fingerprints drawn to his notice during the interview. The significance of the additional three pages was plain. If they had not been produced at the time of the interview in Griffith, they could not then have been handled by Mr Barbaro. This would undermine his explanation of how fingerprints, identified as his, came to be upon a lease with which he asserted he had no connection.

Mr Barbaro was duly committed for trial in the Supreme Court of New South Wales. That trial commenced at Albury on 10 October 1991 before Judge Dunford and a jury. It concluded on 30 November 1991. Mr Barbaro was represented by a barrister, Mr J G Spencer, who was instructed by the appellant. Before the trial, and during the evidence of the police, Mr Barbaro suggested through his legal representatives, that the lease document, as produced in evidence, had not been distinctly pink in colour when he had first been shown it in April 1990. This statement eventually led Mr Spencer to ask the appellant about his recollection of the colour of the document in April 1990, 18 months earlier.

To that time, there had been no suggestion that the appellant might be a witness in the trial. He was simply instructing counsel. The appellant told Mr Spencer that he remembered that the document was not pink on 1 April 1990. The appellant was asked by Mr Spencer to consider the matter carefully overnight. On the following day, he agreed to give evidence about his recollection of the events at the police interview of Mr Barbaro. In his evidence, the appellant stated emphatically that he had seen Mr Barbaro handle the lease; that at that time the lease had "no red stuff on it whatsoever"; and that there were four, five or six pages of which one was the plan showing the perimeters of the leased property. The appellant was emphatic about his recollection of the colouration of the lease and the number of pages of the document handed to Mr Barbaro. He explained not having raised the change of colouration at the committal proceeding. He said that he was not familiar with the testing of documents for fingerprints. He was emphatic that Mr Barbaro had handled the document, and all of its pages, and that he was watching whilst this took place. He was also clear that the document inspected included the plan of the property. He remembered this because it struck him at the time that the farm in question was similar in design to his own farm. He acknowledged that there were two stickers on the document; but only two. A map of a farm owned by the appellant at Darlington Point was shown to the appellant. It confirmed a similarity to the boundaries of the farm in which it was alleged Mr Barbaro was involved.

Under cross-examination by the prosecutor, the appellant remained emphatic about his evidence. The following extracts will suffice to demonstrate this:

Q: I suggest to you that you really would not appreciate whether or not [the lease] had pink tinging parts on it or not, would you?

A: I have looked at legal documents for 30 years, and if anybody had presented that document in that condition, I would have remembered it The document which I saw had no pink chemical as that document has been produced to me.

Q: Well, I suggest to you it had, Mr MacKenzie, and at the very least you are mistaken. What do you say to that?

Q: And I suggest to you, Mr MacKenzie, that the certificate of title part of the document was not attached to the document when it was shown to Mr Barbaro. What do you say to that?

A: I don't agree with that, either All I know there was something in the order of four or five or six pages in it, that the plan which forms part of the certificate of title was there for the reasons I have explained.

Confronting the appellant with the necessity to explain how the yellow stickers bearing date "10 January" were on the document if (as was being suggested) there had been no ninhydrin test, (which would be the only reason for the attachment of the yellow stickers in the first place), the cross-examiner went on:

Q: Let's not mince words, Mr MacKenzie. What, are you suggesting Bush put that stuff on after he spoke to your client?

A: You are suggesting that. I'm not suggesting that at all.

His Honour: Mr MacKenzie, when you say you saw two yellow stickers on the document -

Q: - did they have writing on them when you saw them or can you remember?

A: I think they did have writing, your Honour, but I wouldn't be sure.

Crown Prosecutor: I suggest that you are mistaken - I'm not sure what you are suggesting, but if you are suggesting the certificate of title part of the lease was shown to Mr Barbaro at that interview, you are mistaken. What do you say to that?

A: I'm not mistaken. [T]he plan was the thing that stuck in my mind for the reasons I've indicated.

At the end of the trial of Mr Barbaro, the jury returned a guilty verdict. Mr Barbaro was convicted. The convictions were later quashed upon grounds which are unconnected with the present proceedings. A new trial was ordered [9] . However, in the meantime, the appellant was charged with two counts of perjury under s 327 of the Act and two alternative counts of perjury with intent to procure an acquittal, under s 328 of the Act. 1. R v Barbaro (1993) 32 NSWLR 619 at 648.

The sections of the Act relevant to the counts of the indictment read:

327(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to penal servitude for 10 years.

328 Any person who commits perjury intending to procure the conviction or acquittal of any person of any serious offence is liable to penal servitude for 14 years.

Clearly, s 328 involves the same offence as appears in s 327 but in aggravated circumstances attracting, upon conviction, the prospect of heavier punishment. It was not suggested that s 327(1) had no application to perjury in a criminal trial. Not all perjury committed during a criminal trial would attract the application of s 328. The key to the operation of s 328 is the establishment by the Crown of the intent referred to in it. Where that intent is not proved beyond reasonable doubt, s 327(1), with its more general language, might yet be satisfied.

The false statements referred to in the alternative counts of the indictment laid under ss 327(1) and 328 were respectively:

Statements in substance to the effect that the Lease document shown to Pasquale Barbaro in his presence on 1 April 1990 did not contain any pink or red staining, whereas on that occasion it did contain pink or red staining [counts 1 (s 328) and 2 (s 327(1))]; and In substance to the effect that the plan forming part of the Certificate of Title document was produced during the questioning of Pasquale Barbaro in his presence on 1 April 1990, whereas in fact the plan was not produced during the questioning [counts 3 (s 328) and 4 (s 327(1))].

The appellant's trial was simplified by the making of a number of admissions which assisted the prosecution to establish some of the elements of each of the counts. The transcript of evidence and exhibits at the trial of Mr Barbaro were admitted. A great deal of evidence was given recapitulating the police version of the steps taken prior to, during and after the critical interview with Mr Barbaro which the appellant had attended. The police evidence included detailed testimony concerning the way in which the instrument of lease, relating to the subject property, had first come into police hands. How it had been given to the fingerprint section of the New South Wales Police Service on 5 January 1990, for the receipt of which a signature was recorded and proved. How on that day the document had been immersed in a ninhydrin solution, removed and air dried. How on 10 January 1990 it had been examined by Detective Bush, a fingerprint expert. How on 17 January 1990 five fingerprints were identified, by computer, as being those of Mr Pasquale Barbaro. These were then confirmed as such by two other detectives, expert in fingerprinting. How on 18 January 1990, the lease document comprising six sheets had been returned to police in charge of the substantive investigation and how, by that time, its colour was a distinct and characteristic pink. The evidence was that this colour would increase in intensity for up to a year but later would fade unevenly. Evidence was also given of the attachment of five stickers to identify the fingerprints found, including two (GN1 and GN2) bearing the date 10 January 1990 on the first and third sheets of the lease respectively. The other stickers were on the subsequent sheets. Evidence was also given of the fact that the last three sheets became detached and were not taken by the police when they travelled to Griffith to interview Mr Barbaro.

This was not a case where the perjury on the part of the appellant could be established (as often it is) by a comparison of contradictory evidence given at different times in the same or separate judicial proceedings or by evidence of the admission of intentionally false testimony. At his trial, the appellant called an impressive body of character evidence, including evidence by former judges and practising barristers. He gave evidence himself. Instead of softening the testimony which he had given in the trial of Mr Barbaro, expressing doubts about it or accepting that it might have been mistaken, the appellant persisted with his evidence as to his recollection on the three points of controversy (two only of them referred to the counts of the indictment). He described the lease as being "sort of off-white" or "a whitey-grey" colour. Later he said that it was "a blue document - that's what stuck in my mind". He affirmed that the document was not stained red on 1 April 1990. He repeated that he had noticed that the plan annexed to the lease was similar to the plan of the property which he owned. He confirmed that Mr Barbaro had flicked through the lease. As he did so, the appellant claimed that he had said to Mr Barbaro "Have a good look at it".

In cross-examination at his own trial, the appellant referred for the first time to the possibility that the lease was "a photostat copy". He said that when he saw the document at the committal proceedings his "gut feeling was that it was a photostat copy". He later equated this "gut feeling" with belief:

Yes, it was my belief and that's why I gave the evidence.

At the conclusion of the trial, and after a lengthy retirement, the jury found the appellant not guilty of the offences against s 328 of the Act but guilty of the lesser offences against s 327. He was convicted of those offences by James J. In relation to each count he was sentenced to serve concurrent sentences of penal servitude for twelve months, being a minimum term of nine months and an additional term of three months.

The appellant appealed to the Court of Criminal Appeal of New South Wales against his convictions. The Crown appealed against the alleged inadequacy of the sentences. The Court (Gleeson CJ, Mahoney JA and Studdert J) dismissed both appeals [10] . When this Court heard the appellant's appeal, it was informed that the appellant had served his custodial sentence.

So far as the appellant's appeal was concerned, only two grounds dealt with in the Court of Criminal Appeal need be considered, being the grounds argued in this Court.

First, the Court rejected the suggestion that the verdict of not guilty on the counts (counts 2 and 4) laid under s 328 of the Act were inconsistent with the verdicts of guilty on the counts based on s 327(1) of the Act (counts 1 and 3). The Court rejected the argument that, in the circumstances of the case and the way it had been fought at trial, there could be no reasonable basis for finding the appellant guilty of perjury without also finding that his intention was to procure the acquittal of his client, Mr Barbaro. Their Honours took into account the distinction between "knowledge of possible consequences" and "intention". Only the latter would constitute the additional element required for the Crown to establish the offence against s 328. The appellant had specifically denied, during his evidence, having the intention referred to in the section. The unexpected circumstances in which he came to give his evidence at the trial of Mr Barbaro were acknowledged by the Court as a consideration which "could well have been regarded by the jury as a point in his favour which had general significance, but special significance in relation to the issue of intention" [11] . The Court then referred to the advantages which the jury enjoyed in having seen and heard the appellant give his evidence. It concluded [12] :

Once the jury concluded that the evidence given by the appellant at Barbaro's trial was false, they may have had little difficulty in concluding that it was deliberately false.

However, when they came to address the separate issue of intent, they may have been more reluctant to draw the necessary inference adverse to the appellant. They may have been sure that he had given false evidence, and had done so deliberately, but they may have been less certain about the intent with which he was acting.

It is submitted that the jury could not reasonably have concluded that he was deliberately lying without having first, or at the same time, concluded that he intended to procure Barbaro's acquittal. That submission should not be accepted. In the circumstances of this case, including the way in which the appellant gave his evidence at the Barbaro trial, and at his own trial, and the way the case was presented and left to the jury, it was not inherently unreasonable for the jury to find against the appellant under s 327 but at least to give him the benefit of the doubt under s 328.

1. R v MacKenzie (1995) 82 A Crim R 473 at 491. 2. R v MacKenzie (1995) 82 A Crim R 473 at 493.

The second point argued before the Court of Criminal Appeal, which is still relevant, concerns whether the convictions were unsafe or unsatisfactory. Their Honours reminded themselves of the test to be applied as stated in M v The Queen [13] and Meissner v The Queen [14] . They concluded that the convictions were neither unsafe nor unsatisfactory. They then disposed very briefly of the particular complaint relied on in this Court to support a suggested miscarriage of justice in the failure of the trial judge to give adequate, or any, direction to the jury, relating it to the facts, as to how they should differentiate between the giving of evidence honestly, although mistakenly (on the one hand), and the giving of false evidence dishonestly (on the other). On the suggestion that James J had failed adequately to direct the jury on the question of mistake - as relevant to the differentiation between mistaken but honest evidence and deliberately false evidence - the Court of Criminal Appeal said [15] :

James J, a number of times told the jury that if they were to convict the appellant they had to rule out the possibility that the (assumed) false evidence was given inadvertently or by mistake.

Senior counsel for the appellant identified the point raised by this ground of appeal as being that which was the subject of a specific application for redirection made during the course of the summing up. Trial counsel asked the judge to amplify his directions on mistake by telling the jury that the question was whether the possible mistake was honest, not whether it was reasonable.

James J had earlier referred to mistake in a way that identified honesty as the issue, and had said nothing that could possibly have been understood as suggesting that some kind of objective test of reasonableness entered into the matter. Nor, it appears, had the Crown made any such suggestion. James J prudently decided not to raise such an issue for the purpose of explaining its irrelevance. Trial counsel then said that, if the direction he sought was not to be given, he did not want anything further said on the subject.

1. (1994) 181 CLR 487 at 493-494. 2. (1995) 184 CLR 132 at 145. 3. R v MacKenzie (1995) 82 A Crim R 473 at 500.

By special leave from the order of the Court of Criminal Appeal dismissing his appeal, the appellant now appeals to this Court.

The argument that two or more jury verdicts are inconsistent (or, as sometimes described repugnant [16] or illogical [17] ) ordinarily arises, in the context of criminal trials, when it is suggested that a conviction resting upon one of the verdicts is thereby demonstrated to be unsafe or unsatisfactory. In civil trials, the problem of inconsistency or incompatibility has often arisen where special verdicts are taken on questions, resulting in the argument that the respective answers cannot logically stand together [18] .

1. R v Stone (unreported; CCA (Eng); 13 December 1954), per Devlin J. 2. R v Smith (John) (1973) 57 Cr App R 680. 3. Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; Quinn v Rocla Concrete Pipes Ltd (1986) 6 NSWLR 586; Bromley v Tonkin (1987) 11 NSWLR 211.

Faced with submissions of inconsistency between jury verdicts, courts must reconcile their commitment to conflicting objectives. On the one hand, there is the respect due to the jury as the "constitutional" tribunal for resolving disputed factual questions [19] . This principle is reinforced by the determination of the courts not to permit interrogation of juries as to their grounds for decision [20] . The verdict, accepted in open court, is sufficient. Of its nature, it cannot and does not expose the reasoning of the jury. For reasons of history, institutional integrity and finality of trials, courts have long been reluctant to undermine jury verdicts or to infer from them that the jurors, drawn from the community, have done otherwise than their duty as committed to them by law [21] .

1. Newell v The King (1936) 55 CLR 707 at 711, 713; cf Hocking v Bell (1945) 71 CLR 430 at 440, per Latham CJ approving Mechanical & General Inventions Co Ltd v Austin [1935] AC 346 at 373. 2. Mourani v Jeldi Manufacturing Co Pty Ltd (1983) 57 ALJR 825; 50 ALR 519; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708. 3. Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 178-179, 197-199.

On the other hand, whilst ordinarily a jury is as inscrutable as the Sphynx [22] , sometimes, by a series of verdicts or, where permitted, answers to questions posed by the judge, there is placed on the public record an insight into the jury's thinking. This does not arise unlawfully or irregularly [23] . If the result of this insight is to cast doubt upon the verdict under consideration, because logically it cannot stand together with another verdict, the court is then confronted by a problem of justice. The high respect paid to jury verdicts is reinforced by a general appreciation of their usual correctness. However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene. In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.

1. Ward v James [1966] 1 QB 273 at 301. 2. cf Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 at 204-205.

From a review of the cases, a number of general propositions can be stated:

1. A distinction must be drawn between cases of legal or technical inconsistency and cases of suggested factual inconsistency. The former will generally be easier to resolve. On the face of the court's record there will be two verdicts which, in law, cannot stand together. Examples include the case where the accused was convicted both of an attempt to commit an offence and the completed offence [24] or of being, in respect of the same property and occasion, both the thief and the receiver [25] . There are other like cases [26] . Where technical or legal inconsistency is established, it must be inferred that the jury misunderstood the judge's directions on the law; compromised disputes amongst themselves; or otherwise fell into an unidentifiable error. The impugned verdict or verdicts must be set aside and appropriate consequential orders made.

2. Suggestions of factual inconsistency have arisen both as between different verdicts affecting the same accused and different verdicts affecting co-accused or persons tried separately in relation to connected events. The last-mentioned problem is an inevitable risk of the trial system where accused offenders are tried separately. Thus in R v Rowley [27] the appellant was convicted after a plea of guilty. The principals in the offence were later acquitted after a trial. The appellant gained an order quashing his conviction. Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the juries separately take of the witnesses" [8] .

1. Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness. A judgment of Devlin J in R v Stone [9] is often cited as expressing the test [10] : He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.

2. Nevertheless, the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense [11] . Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted [12] . If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury [13] . In a criminal appeal, the view may be taken that the jury simply followed the judge's instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt [14] . Alternatively, the appellate court may conclude that the jury took a "merciful" view of the facts upon one count: a function which has always been open to, and often exercised by, juries [15] . The early history of New South Wales was affected by English juries which, in the face of clear evidence, declined to find the value of goods stolen sufficient to attract the punishment of death, thereby affording to the offender the alternative punishment of transportation [16] . Australian decisions have acknowledged that the role of the jury continues to be ameliorative in this respect. In R v Kirkman [17] , in the Supreme Court of South Australia, King CJ (with the concurrence of Olsson and O'Loughlin JJ) observed: [J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them, and courts, I think, must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges. Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law. Sometimes it appears to a jury that although a number of counts have been alleged against an accused person, and have been technically proved, justice is sufficiently met by convicting him of less than the full number. This may not be logically justifiable in the eyes of a judge, but I think it would be idle to close our eyes to the fact that it is part and parcel of the system of administration of justice by juries. Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty. We agree with these practical and sensible remarks.

3. Nevertheless, a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury's duty [18] . More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law [19] . It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside [20] . It is impossible to state hard and fast rules. "It all depends upon the facts of the case."

4. The obligation to establish inconsistency of verdicts rests upon the person making the submission [21] . But if, because of inconsistency between verdicts, the appellate court is persuaded that a verdict cannot stand, it must make consequential orders. In the case of a criminal trial, where the verdict has been followed by conviction and sentence, these must be set aside. Where the inconsistency is found between verdicts of acquittal and a verdict of guilty, the appellate court (statute apart) may not disturb the acquittal. It may be appropriate to enter a verdict of acquittal on the subject count(s) on the footing that this merely carries forward the logic of the other acquittal verdict(s). But once again, the relief which is appropriate depends upon the facts of the particular case.

1. R v Roach [1948] NZLR 677. 2. R v Irvine [1976] 1 NZLR 96. 3. See, eg, R v Mitchell [1971] VR 46 at 51; Connecticut v Hinton (1993) 630 A 2d 593. 4. [1948] 1 All ER 570. 5. R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40. 6. Unreported, 13 December 1954, per Devlin J. 7. See, eg, R v Hunt [1968] 2 QB 433 at 438; R v Durante [1972] 1 WLR 1612 at 1617; [1972] 3 All ER 962 at 966; cf Archbold, Criminal Pleading, Evidence & Practice, 43rd ed (1995), vol 1, par 4-457. 8. See Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 at 595; Ward v Roy W Sandford Ltd (1919) 19 SR (NSW) 172. 9. R v Wilkinson [1970] Crim LR 176. 10. Hayes v The Queen (1973) 47 ALJR 603 at 604-605. 11. R v Andrews Weatherfoil Ltd (1971) 56 Cr App R 31 at 40. 12. R v Hunt [1968] 2 QB 433 at 436. 13. Castles, An Australian Legal History (1982), p 56. 14. (1987) 44 SASR 591 at 593. 15. R v Irvine [1976] 1 NZLR 96 at 99; R v Morgan [1981] 2 NZLR 164 at 168-169; R v Cooper (1993) 149 AR 207; Ewaschuk, Criminal Pleadings and Practice in Canada, (1983), s15.212, requiring that the verdicts be "so mutually contradictory or violently at odds in relation to the evidence that they cannot stand together in the sense that no reasonable jury, who had applied their mind to the facts of the case, could have arrived at the same conclusion": R v Peterson (1996) 106 CCC (3d) 64 at 79; cf Hall v Poyser (1845) 13 M & W 600 [153 ER 251]; Bedford v Crapper [1949] 3 DLR 153. 16. R v Zundel (1987) 35 DLR (4d) 338 at 401-402, applying R v McShannock (1980) 55 CCC (2d) 53 at 55-56; cf Mack v Elvy (1916) 16 SR (NSW) 313. 17. R v Drury (1971) 56 Cr App R 104 at 105. 18. See R v Hunt [1968] 2 QB 433 at 438; R v Kirby (1972) 56 Cr App R 758.

When the foregoing principles are applied to the facts of this case, we are not convinced that the verdicts returned by the jury in the trial of the appellant are so inconsistent as to render the resulting convictions of the appellant unsafe or unsatisfactory.

It is true that, in the way the trial was conducted, it is difficult to see what other "intent" the appellant, as the solicitor for Mr Barbaro, could have had in giving deliberately false evidence other than to secure his client's acquittal. It is difficult in this case to suggest, as a matter of fact, that the appellant would not have had sufficient insight into the consequences of giving deliberately false evidence. He was, after all, a solicitor with substantial courtroom experience. For the appellant it was conceded that cases would exist where a witness might give deliberately false evidence in a criminal trial with an intention other than that of securing acquittal or conviction of the accused. The Court of Criminal Appeal in its reasons mentioned the purpose of concealing the witness's own role in the matter. One can conceive other purposes, eg avoidance of embarrassment; protection of accomplices; desire to save family or friends from embarrassing revelations; or protection of personal rights. For the appellant it was put that none of these possibilities existed in the facts of this case. With some justification, the appellant pointed to the inconsistency between the treatment of this issue in the reasons of the Court of Criminal Appeal. Thus, in dealing generally with the submission that the convictions, based on the guilty verdicts, were unsafe or unsatisfactory, the Court of Criminal Appeal referred repeatedly to the "purpose" of the appellant's evidence which "was to corroborate Barbaro on three issues". If that was his "purpose", the appellant asked, what other "intent" was relevant to the facts of his case?

We accept the comment that, at first sight, the differentiation between the jury's verdicts appears a little difficult to understand. They were not technically inconsistent. But there is an element of factual inconsistency, at least in the way in which this particular trial was conducted. Nevertheless, we are not convinced that the verdicts are so repugnant and irreconcilable that they invite, or require, intervention.

There are a number of available explanations for the differentiation in the verdicts which are consistent with the assumption that the jury approached their task in a proper manner and did not simply compromise their function. First, the trial judge told them (without any comment from the appellant's counsel) that it was open to them to find the appellant not guilty of the more serious charges but guilty of the less. Secondly, his Honour directed the jury in appropriate terms about the high onus which the Crown bore to prove every element in the offences charged, including, in the case of the counts based on s 328, the "intention" required. The appellant having expressly denied having such an intention it was open to the jury, which had the advantage of seeing him give his evidence, to accept him on this point. Thirdly, there was some objective evidence to support a lack of intention, and certainly of premeditation. The overwhelming evidence was that the appellant did not originally intend to give evidence for Mr Barbaro. He did not suggest that course. It was proposed by Mr Barbaro's barrister whilst the trial of Mr Barbaro was underway. The jury were entitled to have a doubt that the appellant had formulated the particular "intention" required to make good the Crown's charges under s 328. Fourthly, it would have been open to the jury to conclude that the appellant had given false evidence deliberately but for reasons other than the requisite intention. One such reason could have been bravado. Another, saving face once he had initially agreed to give evidence. Various other possibilities exist. Consideration of the factors mentioned by King CJ in Kirkman [22] cannot be elevated to the point that "mercy" on the part of a jury is always sufficient to justify apparent inconsistency between verdicts on alternative counts. But in this case, the jury would certainly have appreciated the seriousness for the appellant of verdicts of guilty on the perjury counts based on s 328 of the Act. This factor, and the judge's explanation of the separate and additional ingredient if "intention", which the Crown had to prove beyond reasonable doubt, might have caused the jury to hold back: concluding that convictions on the counts based on s 327 of the Act were sufficient to meet the justice of the particular case. We also bear in mind the repeated insistence of the courts that the burden of persuasion that appellate interference is required, in what is otherwise the jury's province, is upon the person who impugns a jury's verdict.

The foregoing reasons lead us to the conclusion that this Court should not interfere on this ground. The verdicts on the several counts do not, of themselves, render the convictions of the appellant unsafe or unsatisfactory. Although the Court received other submissions to the effect that a scrutiny of all of the evidence would result in that conclusion, such scrutiny was conducted by the Court of Criminal Appeal with the proper principles in mind. We would not, otherwise, disturb the convictions on the unsafe or unsatisfactory ground.

Certain additional features of the evidence relied upon to support the arguments on this ground must now be considered in connection with the alternative case advanced for the appellant, viz that there has been a miscarriage of justice in his case because the jury were not properly and adequately directed upon the difference between false evidence given knowingly as distinct from mistakenly.

Directions by the trial judge on mistaken certitude

It has to be conceded that, both in his evidence at the trial of Mr Barbaro and in his own trial, the appellant, almost to the end, gave his testimony with an element of dogmatism and certainty that left little possibility of his being mistaken. Passages from his evidence have been quoted above. There were many more to like effect.

The appellant was cross-examined during the Barbaro trial with the suggestion that he was mistaken. He rejected that suggestion, including by reference to his experience as a solicitor in examining documents and, in the case of the missing pages, by reference to the plan of his own farm. It is puzzling that a person experienced in court trials, aware of the vagaries of human memory over intervals much shorter than those in question here, would not have been more cautious and willing to allow the possibility of mistake. It is doubly puzzling given the objective circumstances which tended to undermine the acceptability of the evidence he had given. The only explanation available as to how the yellow stickers (which the appellant conceded were on the documents Mr Barbaro inspected in the police interview on 1 April 1990) came to be there, without submission of the documents to the test which would immediately discolour them, was that the police had been engaged in bluffing Mr Barbaro. The only other explanation for the oral and recorded evidence of the fingerprint examiners was that they, too, were part of a complex conspiracy and that their records were all false. Such possibilities exist. But one might have expected an experienced solicitor to be more cautious before accepting them. The explanation which the Crown offered was that the solicitor had embarked upon a course of deliberately and knowingly giving false evidence. He could not retreat from that course. On the contrary, he proceeded to give further testimony which entangled him in a web of new and deliberate lies. This was the view which the Court of Criminal Appeal accepted.

There is another explanation. It is one which was suggested by the evidence of a character witness (Mr L M Morris QC) who knew the appellant well and had been retained by him in "hundreds if not thousands" of cases. He described the appellant as a very loyal solicitor "both to his counsel and to the clients" and as a "man of integrity". Relevant to the present point he offered this evidence which was not objected to:

Q: What do you say as to whether or not the behaviour there alleged is consistent or inconsistent with the character of the man as you know him?

A: Well I think there are two sides to that question. I can say that I do not doubt Mr MacKenzie's word at all and his actions in this case are consistent with all I know of him. But one has to remember that a person who is making a true mistake carries that mistake through with his conviction that he is correct and I do not doubt that he is totally convinced that he is telling the truth in these circumstances.

This remark was noticed by the Court of Criminal Appeal which agreed with the thrust of it. However, that Court appears to have considered that the repeated and somewhat dogmatic way in which the appellant gave his evidence, nonetheless of itself lent credence to the conclusion that the repetition, in some way, showed that the appellant knew that his statements were false or at least did not believe that they were true. The Court of Criminal Appeal was also affected by the volunteered evidence, given during cross-examination of the appellant in his own trial, whereby he suggested for the first time that the lease shown to Mr Barbaro had been a photocopy, not the original. The Court concluded that this "was a desperate suggestion" because it had never been offered before and indeed "exploded the defence case for Barbaro" [23] . 1. R v MacKenzie (1995) 82 A Crim R 473 at 493.

The first is that, whilst it is true that the appellant appears to have been a dogmatic witness, unwilling to concede mistake, at the very end of his testimony in his own trial he eventually came to face that possibility. At the conclusion of his cross-examination, questions were directed as to why he had not given instructions to challenge the records of the fingerprint section of the Police Department:

Q: And having listened to that evidence and seeing such exhibits as you have, do you still say to this jury that there is no possibility of your being mistaken about the version that you have given of the events on 1 April 1990?

A: I can only reiterate what I have said; that I don't believe that was mistaken. The evidence which I gave was the honest, one hundred per cent clear of what I saw on that date and that's where I stand. Now, if my memory has not served me well, that would be an innocent mistake but I don't believe that I have made a mistake.

Q: Taking into account the evidence that has been given in this trial, do you accept now in the face of that evidence that you may have been mistaken?

A: Look, I can say no more than I have said previously. But having listened to the conflicting police evidence in this trial I feel that the police may have been mistaken.

Q: And do you say that still today there is no possibility in your mind that you are mistaken about that evidence that you gave?

A: Well, as I said before, the possibility - and one has got to accept that you can make a mistake, albeit innocently, but in my own mind I don't believe I have - but obviously I am not infallible.

Secondly, the Court of Criminal Appeal itself commented on the distinction between honest mistake and deliberate falsehood. Their Honours said [24] :

[P]eople who are [honestly] mistaken can, nevertheless, be extremely confident, and unwilling to admit even the possibility of error. This statement is clearly correct. As the Court also observed, many of the problems which have arisen in respect of identification evidence have occurred not because witnesses have deliberately given false evidence to police, and later to courts, but because it is an elementary feature of human psychology, in the words of the character witness in this case, to carry "a true mistake through with conviction" [25] . The mind, recognising perhaps the seriousness of the consequences of error, may seek unconsciously to reinforce conviction of the truth and accuracy of the recall, the subject of the testimony. This can lead to just such risks of dogmatism and certainty that have occasioned the requirements for court warnings in the case of identification evidence so as to prevent the risks of the miscarriages of justice which can otherwise, quite innocently, occur in that context [26] . But the point made in the identification cases is one of general application. It applies in relation to recall of perceptions required months or (as in this case) years after events: especially where those events were brief and seemingly unremarkable at the time they occurred. 1. R v MacKenzie (1995) 82 A Crim R 473 at 495. 2. cf Domican v The Queen (1992) 173 CLR 555 at 564-566, 569, citing R v Dickson [1983] 1 VR 227 at 230. 3. R v Domican [No 3] (1990) 46 A Crim R 428 at 446-447. For the processes of human storage, forgetting and recall of information, see Sternberg, In Search of the Human Mind (1995), pp 277-278. Rehearsal or repetition may transfer information from "short term" to "long term" memory resulting in reinforcement of distorted recollection.

With respect to the Court of Criminal Appeal, the appellant's repetition, in Mr Barbaro's trial and in his own trial, of his conviction of certainty as to the evidence he was giving was equally consistent with the giving of false evidence innocently and mistakenly as distinct from the giving of such evidence dishonestly and with criminal intent. Neither the repetition nor the expressed certainty nor the belated suggestion that the lease as originally seen was a photocopy, are inconsistent with the hypothesis of innocent mistake. Sometimes repeated assertion of false evidence can tend to establish the criminal intention of the witness, especially where the falsity is "inescapable and self-evident" or where it leaves no reasonable cause for a belief that it is true [27] . But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved [30] . In R v Dickson [31] it was rightly said

[I]t is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former. The converse is also true. 1. State of Nebraska v McCaslin (1975) 482 NW 2d 558 at 559; cf R v Doz (1984) 12 CCC (3d) 200. 2. cf Illinois v Toner (1977) 371 NE 2d 270 at 274, referring to Bronston v United States (1973) 409 US 352; Corpus Juris Secundum, vol 70 s 17. 3. [1983] 1 VR 227 at 231; cf R v Sainsbury [1993] 1 Qd R 305 at 309.

Thirdly, the foregoing conclusions make it all the more important that, in a case of this kind, the judge should have given assistance to the jury on the differentiation between honest mistake and deliberate falsehood, the latter being an essential element to the offence. In this Court, it was submitted for the prosecution that the mistake was inconsistent with the way in which the accused had given his evidence at both trials and conducted his defence at his own trial. Even if this were so, it would, nevertheless, be the duty of the judge to deal with the matter in his directions to the jury [32] . This is inherent in the fact that the charge is one brought by the Crown. The judge must explain, by reference to the facts, the ingredients of the offence. In this case, the issue was specifically raised in a request for redirection on behalf of the appellant. What then happened is the source of the appellant's alternative contention before this Court that a miscarriage of justice occurred because the jury were not, in the result, properly directed, or directed at all, on the need to differentiate between false evidence given with knowledge of its falsity or false evidence given mistakenly but without criminal intent [33] .

1. cf Van Den Hoek v The Queen (1986) 161 CLR 158 at 161-162. 2. cf R v Cieslenski (1923) 41 CCC 195; Mewett & Manning on Criminal Law, 3rd ed (1994), pp 654-655.

The judge's directions, redirections and withdrawal

The trial judge gave the jury general directions on the dangers of inaccurate and unreliable recall of events which had occurred years before the sworn testimony was given. He also gave a general direction on the requirement of the Crown to show not only that the statements made by the appellant were false but that, at the time the appellant made them, he knew that they were false or at least did not believe that they were true. No complaint is made about these general directions.

However, at the conclusion of the judge's directions to the jury, counsel for the appellant asked the judge to give a specific direction upon the approach which the jury should take, if it were concluded that the appellant's evidence was false. It was submitted that the question the jury had to ask was "whether it is genuine, not whether it is reasonable". In answer to the question how mistake came into the issues before the jury, counsel said quite clearly:

If we have failed to convince the jury on the first leg - that is, falsity - then our defence is that the accused did not know it to be false. It is then available to us to say - and the question is whether he knew, not whether he reasonably ought to have known. James J accepted that a redirection was required. He recalled the jury and gave what, with respect, was a rather confused direction. It did not come to grips with the simple point which was raised in the request made for the appellant. This was, that the jury should have been told, with proper reference to the evidence, that the prosecution had to establish that the statements made were false and that, when made, the accused knew that they were false or at least did not believe them to be true. The jury should then have been told that, if they concluded that the statements had been made mistakenly, but genuinely believing them to be true, the prosecution would not have established an essential ingredient of the offences charged. It is at this point that the trial judge attempted, but failed, to give the jury the assistance they needed on the approach required by the law once they concluded that the evidence was factually false and were evaluating whether this falsity arose from a criminal intention or simply out of perception and recall which were wrong, but innocently so.

After the redirection was given to the jury, the appellant's counsel complained about James J's direction, which was read back. The judge himself said:

I do not like that. I have, during the adjournment, endeavoured to draft something. I have not been happy with anything that I have arrived at. I am wondering whether I should not simply withdraw it. Counsel for the appellant stated "I would be content with that". The prosecutor agreed. The judge observed again: I have tried to link mistake with the twin concepts of knowledge and absence of belief and I find it very difficult to arrive at something which I think is both accurate and will not go completely over the heads of the jury.

The jury were brought back. The judge read them part of his direction which had reaffirmed the need for the prosecution to show that the accused had actual knowledge that the statements were false and that he did not believe them to be true. But he withdrew his attempted explanation of how the accused had acquired that actual knowledge. Neither counsel pressed any further submission upon his Honour. The jury then commenced their long retirement before returning with their verdicts.

The Court of Criminal Appeal interpreted the events just described as involving an endeavour by the trial judge to deal with an irrelevant issue and one which, in any case, counsel ultimately agreed was irrelevant [34] .

We read the responses of counsel as expressing agreement with the withdrawal of the confusing direction rather than withdrawing the earlier request for a direction concerning the approach the jury should take if they concluded that the statements made by the appellant were wrong in fact, but as a result of a mistaken perception and recall rather than deliberate falsehood. Whether or not that is correct, the fact remains that an important question upon which redirection had been sought, and attempted, was left without assistance to the jury. Counsel had taken the point. The judge had initially concluded, correctly, that there was a deficiency in the directions. Equally correctly, he had concluded that the redirection given was, in part, confusing and should be withdrawn. But he gave no substitute or different direction. This left the identified deficiency unrepaired.

The jury therefore considered their verdict without that assistance. In our view it was a matter upon which assistance ought to have been given. The failure to give it (particularly when the problem was expressly raised with the judge) is one which, in the circumstances of this case, occasioned a miscarriage of justice.

This is not a case where it would be appropriate to apply the proviso in s 6(1) of the Criminal Appeal Act 1912 NSW. Although, it is true, there was evidence upon which a jury, properly instructed, might convict the appellant, the instruction was imperfect in an essential respect. It therefore undermined the acceptability of the verdicts, given that the court must assume that the jury acted on instruction given by the judge on matters of law [35] . It cannot be said that the conviction of the appellant was inevitable. He lost a chance of an acquittal which was fairly open if the jury concluded that his dogmatic evidence, although false, was innocently or mistakenly so [36] .

1. Domican v The Queen (1992) 173 CLR 555 at 565-566; Glennon v The Queen (1994) 179 CLR 1 at 8-10. 2. Mraz v The Queen (1955) 93 CLR 493 at 514; Wilde v The Queen (1988) 164 CLR 365 at 371-372.

Where an appeal succeeds upon the basis that the trial miscarried because of an inaccurate or inadequate direction to a jury, it is ordinarily appropriate to order that there be a retrial which, it will be assumed, will be conducted in accordance with the law as clarified.

As in the present case the appellant has served the custodial sentence imposed upon him by James J, a question would arise as to whether it is appropriate to submit him to retrial, where there would be little prospect, upon reconviction, of an increase in sentence, having regard to the principle of double jeopardy in sentencing. However, these are matters which will doubtless be considered by the Crown taking into account all of the circumstances of the case, including the appellant's professional position.

2. Set aside the order of the New South Wales Court of Criminal Appeal in the appellant's appeal to that Court.

1. In lieu thereof, order that that appeal be upheld, the convictions and sentence quashed and that there be a new trial.