R v Briggs [2000] VSCA 234

5. After a trial of less than two days, including the jury's deliberations, the applicant was convicted. On 19 October 1998 he was sentenced to 12 months' imprisonment commencing from that date. Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) the Court ordered his release after serving two months of the total term, upon his giving security by recognisance in the sum of $2,000 to comply with the condition that he be of good behaviour for three years. He now seeks leave to appeal against conviction and sentence.

8. The applicant is a medical practitioner, who has practised as a general practitioner, but who ceased practising in July 1997. On 2 December 1996 he came before Judge Byrne in the County Court as an unrepresented appellant from a decision of the Magistrates' Court in its criminal jurisdiction. It was common ground that the proceeding before His Honour was in relation to the judicial power of the Commonwealth.

11. The applicant applied for an adjournment of the hearing of the appeal, on the ground that he had difficulties with his eyesight which caused him problems in reading the relevant documentary material. His Honour asked if he was prepared to give evidence in support of his application and he went into the witness box and was sworn. He then gave evidence to the effect that his right eye was legally blind, that his left eye had some long vision, that it was impossible for him to read, that a total corneal transplant had been performed on both his eyes on 20 September and that he was suffering gross pain which would continue for another few weeks.

14. In cross-examination Mr Champion, counsel for the Commonwealth Director of Public Prosecutions, asked the applicant whether he had any medical report with him in court. The applicant went through his briefcase and produced a document, which he handed to the tipstaff who handed it to the solicitor instructing Mr Champion. She looked at it and it was put down on the Bar table until Mr Champion was ready to make use of it. Later in his cross-examination Mr Champion read out the body of the report, and asked "Do you agree?", to which the applicant replied "Yes". At the conclusion of the cross-examination the document was tendered to Judge Byrne by Mr Champion. The application for an adjournment was granted.

17. The document, which was marked as Exhibit A at the trial before Judge Harbison, was dated 26 November 1996 and purported to be a medical report of Dr Sullivan, a specialist opthalmologist, who had carried out the corneal transplants on the applicant's eyes. Dr Sullivan, who was called for the Crown, swore that he had had a consultation with the applicant on 19 November 1996, shortly prior to the hearing before Judge Byrne on 2 December, when he examined the applicant's eyes and at his request provided a report, dated 26 November 1996. A copy of that report was tendered and was marked as Exhibit B. Dr Sullivan swore that the signature to Exhibit A was not his; that the letterhead on which Exhibit A was written was different from the letterhead which he was using at the relevant time; and that the text of Exhibit A was not what he wrote, although there were some resemblances to it. Exhibit A indicated that the vision in the applicant's left eye was much worse than Dr Sullivan had recorded and than he had stated in Exhibit B; and it emphasised pain in the applicant's right eye, which Dr Sullivan had not thought to be a major problem.

20. On 12 February 1997 an officer of the Australian Federal Police searched premises in Doncaster partly occupied by the surgery and office of the applicant and found in a desk in the surgery an original, signed in blue ink, and three photocopies, of Exhibit A.

23. The applicant said in evidence that Exhibit A must have been created by his wife without his knowledge.

27. The grounds of the application for leave to appeal against conviction are:

first, that there was no evidence that the Applicant produced the medical report to Judge Byrne; and second, that the production of the medical report to Judge Byrne was an act which did not possess the characteristic of a tendency to pervert the course of justice.

31. The verb "to produce" derives from the Latin producere, formed on pro and ducere (to lead). Hence its general meaning in the English language to lead forth, or to bring forth or forward. Being thus a verb of potentially spacious breadth of meaning, it is capable of diverse nuances. Correspondingly, as Rigby, L.J. indicated in Hanfstaengl v. American Tobacco Company[1], it has no exact legal meaning and "requires an interpretation to be put upon it in the statute in which it occurs". So also, in R. v. Edmonton Justices. Ex parte Stannite Automatics Ltd.[2] it was necessary to put a meaning on that part of s.52(4) of the Betting, Gaming and Lotteries Act 1963 which empowered a court imposing a conviction to order "anything produced to the court and shown to the satisfaction of the court to relate to the offence" to be forfeited. It was held by a Divisional Court that physical production in the court room of gaming machines was not a necessary prerequisite to an order for their forfeiture. In much the same way the word "producing" in the indictment in question in this case requires one's attempt to give it a sensible interpretation, remembering that, in the context, its use is really part of an attempt to describe an event, as a matter of history.

34. The concept of production to a court, or of production to a judge in a court, is obviously variable in its connotation according to the context: one may compare the production to a court or to a judge of a document or thing (a) in evidence, (b) on subpoena and (c) otherwise; and one may compare also the differences between production to a court or to a judge of a person (a) pursuant to a writ of habeas corpus, (b) pursuant to a warrant, (c) on subpoena and (d) otherwise. Counsel, asked by a judge to "produce an authority" in support of a submission, might conceivably comply in reliance on an accumulated store of learning and without physically bringing forth anything.

37. There can be no doubt that the forged medical report was, as a matter of ordinary parlance, "produced" to Judge Byrne during the application to him for an adjournment of the appeal when it was received in evidence and marked as an exhibit. It may very well be that the applicant could not have been said then to produce it. Let it be assumed that he did not, and that its production, at that stage and in that way, is to be attributed to counsel who opposed the application for the adjournment. It by no means follows, however, that the applicant did not produce the document at an earlier stage when, in response to counsel's question in cross-examination, he took it from his briefcase and handed it to the tipstaff. There can be no doubt that, in doing so, the applicant did an act which, in the light of what happened thereafter, is properly to be described as producing the document to Judge Byrne.

40. Counsel for the applicant in this Court submitted that the applicant could not be said to have produced the document to Judge Byrne unless he physically handed it over to the judge - or (as may be assumed) to someone on the judge's behalf, such as his associate or tipstaff. That submission is quite untenable. It is to be remembered that what the indictment sought to do was to describe conduct of the applicant which constituted the actus reus of the offence charged. By virtue of paragraph 9 of the Presentment Rules[3], it is -

"... sufficient to describe any place time thing matter act or omission whatsoever to which it is necessary to refer in any presentment in ordinary language in such a manner as to indicate with reasonable clearness the place time thing matter act or omission referred to."

What the applicant was relevantly proved to have done in Judge Byrne's court was very well described as "producing to Judge Byrne" the forged document. It was said on behalf of the applicant in this Court that the evidence does not support an intention on his part that the document should have gone to the judge rather than to the prosecutor; and that it was the prosecutor, and not the applicant, who decided that its contents should be made known to the judge and that the document itself should be tendered in evidence and marked as an exhibit. This argument misapprehends the respective roles of the applicant himself, of opposing counsel and of Judge Byrne on the day. The position was, simply, that the applicant was seeking an adjournment of his appeal, counsel was opposing the application and the judge's function was to rule upon it. Having regard to those functions, the purpose of the introduction of factual material into the Court, considered objectively, could only have been to influence the judge in making the ruling: to suggest, as counsel for the applicant did here, that the applicant might have intended to produce the document to the prosecutor, with the intention of influencing him, is not objectively sensible.

45. Accordingly, the first ground of the application for leave to appeal against conviction - that there was no evidence that the applicant produced the medical report to the judge - must fail.

48. The second ground - that the production of the medical report "did not possess the characteristic of a tendency to pervert the course of justice" is similarly without merit. The elements of the offence of attempting to pervert the course of justice were considered by Brennan and Toohey, JJ. in Rogerson[4] where their Honours said:

"At common law, attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence. . . . It consists in the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice. . . . Justice, as the law understands it, consists in the enjoyment of rights and the suffering of liabilities by persons who are subject to the law to an extent and in a manner which accords with the law applicable to the actual circumstances of the case. The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. Reg v Todd, [1957] SASR, 305 at p 328. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice."

52. The argument in support of the second ground was that, if the document should be properly treated as having been produced by the applicant to the judge, its tendency to pervert the course of justice had by the time of such production been exhausted because its contents, having been read out aloud by counsel, were already known to the judge. The simple answer to that submission was correctly made by counsel for the respondent, namely this: the Crown case was that it was the fact of forgery that had the tendency to pervert the course of justice; it was not the contents of the document, but the fact of the forgery that was significant. The only way in which the tendency could have been extinguished was by way of the judge's knowing that the document was a forgery.

55. The application for leave to appeal against conviction should be dismissed.

59. In the light of discussion with the Court upon the hearing of the application for leave to appeal against sentence, counsel for the applicant sought and obtained leave, without objection, for the addition of the following ground of the application -

"The learned sentencing judge erred in concluding that (i) it had not been suggested to her that the applicant's psychiatric and/or psychological condition had relevance to the applicant's offending; (ii) the applicant's psychiatric and/or psychological condition had no relevance to the applicant's offending."

The additional ground was prompted by the following sentencing remarks made by the learned judge -

"I am also mindful of the fact that the Crown, whilst calling for a sentence of imprisonment, has indicated that the sentence need not necessarily involve a period of actual incarceration. ... I take a different view. I am not of the view that you would be a suitable candidate for any of the non-custodial dispositions suggested by your counsel. The offence was premeditated. I am not satisfied, as I have said, that you will not reoffend. Although I have heard that you have a psychiatric disorder, it has not been suggested to me in your plea that the presence of this disorder accounts for your actions which are the subject of this crime for which I am to sentence you, or for your lack of insight into your offending or lack of remorse for your actions. In my view, the appropriate penalty for this offence, taking into account the circumstances of its commission, must be in part a sentence of immediate imprisonment, as a reflection of the seriousness of this crime and in order to deter you from criminal activity in the future and, further, in order to deter others who may be tempted to produce false documents to a court in the fashion that you have done."

65. The judge's impression that the applicant's psychiatric disorder had not been put forward on the plea as accounting for his offence seems to us not to have been entirely accurate. Counsel, upon the plea, submitted to the judge that the case was not one for the imposition of a term of imprisonment for a number of reasons, one of which was that the applicant was "suffering from a depressive illness at the time". It was also said that the applicant had been "for some time under the treatment of psychiatrists" (p.149) and that "the illness has been existing for some time" (p.150). There was placed before the learned judge a psychiatric report from Dr John Munro, who stated that he had been treating the applicant since 1997.

68. The point could no doubt have been made less ambiguously and more tellingly on the plea, but it appears, on balance, that the applicant's counsel was then contending that his client had been suffering from a psychiatric disorder when he committed the offence in 1996, and that the commission was attributable in some degree to the disorder. The exceedingly curious circumstances of the offence, committed by a previously hardworking and successful general medical practitioner without recorded prior convictions, tended to offer an appreciable measure of verisimilitude to such a contention. It is true enough that Dr Munro's evidence did not indicate that the mental disorder was existing in 1996, and that the judge was left with somewhat vague assertions by counsel from which to gain an impression of its duration.

71. One curious feature of the proceeding in this Court was that there was filed, without objection from the Crown, an affidavit by the solicitor for the applicant giving an account of a plea of guilty by the applicant in the County Court before Judge Hart in July 1999 - some nine months after the sentence now under consideration. In the 1999 proceeding the applicant pleaded guilty to 89 counts of making a false statement, knowing it to be false in a material particular, and capable of being used in connection with a claim for payment under the Health Insurance Act 1973 (Cth) contrary to s.138B thereof. The same counsel who appeared at the trial and on the plea before Judge Harbison appeared on the plea for leniency made before Judge Hart. Counsel was evidently able to place before Judge Hart rather more detailed evidence of the applicant's psychiatric condition, and its duration, than he was before Judge Harbison. In his sentencing remarks, which were exhibited to the affidavit, Judge Hart accepted that, at the time of the offences with which he was dealing (committed between July 1993 and November 1995), the applicant had been suffering from a major depressive illness, and had done so since about 1990; and that he had been receiving psychiatric treatment since 1990 and would continue to need it indefinitely. Judge Hart concluded that the offences with which he was dealing had been "clearly linked to this condition and it has probably been a major cause of your offending." Judge Hart concluded, apparently largely on the basis of the evidence of the applicant's mental disorder, that he was not "a suitable subject for the implementation of the principle of general deterrence". His Honour was nevertheless satisfied that no sentence other than a custodial sentence was appropriate, and imposed an effective sentence of three years' imprisonment, but ordered that the applicant be released immediately upon entering into a recognisance in the sum of $500. Although that sentence was, of course, imposed after the sentence imposed by Judge Harbison, Judge Hart treated the applicant, in view of the then pending applications for leave to appeal (which are now before this Court) as having no prior convictions.

74. We have reached the conclusion that the added ground is made out and that, accordingly, sentencing error is demonstrated. This Court is therefore required to set aside the sentence below and to impose a fresh sentence. In the circumstances we have no need to consider the other grounds of the application for leave to appeal against sentence, but would draw attention to the learned judge's particular reliance on the principle of general deterrence which, had she been led to take due account of the applicant's psychiatric condition, she might well have placed to one side, as Judge Hart did.

77. Material having come before us - be it by an unconventional route - that influenced Judge Hart as it did, we should not be justified in turning a blind eye to it in resentencing the applicant. The material might be described in a sense as fresh evidence that is subject to the limitations of its kind. We should, however, prefer to justify our resort to it on the footing that it is material supporting the submission that was made to the learned sentencing judge about the applicant's psychiatric condition which might well have been acceded to even without the material.

80. The applicant has been on bail since 25 November 1998 and has therefore served in excess of one month of the two months' imprisonment that he was required to serve by the sentence that was imposed on 19 October 1998. In all the circumstances this Court will set that sentence aside and in its place impose, as at 19 October 1998, the same sentence save that, in lieu of the order that the applicant be released after serving two months' imprisonment, it will be ordered that he be released after serving one month's imprisonment upon giving the same security as was ordered below.

[1] [1895] 1 Q.B. 347, at 355.

[2] [1965] 1 W.L.R. 984.

[3] Crimes Act 1958, Sixth Schedule, which apparently applies to Commonwealth indictments as well as to Victorian presentments: R. v. Nicola [1987] VicRp 86; [1987] V.R. 1040.

[4] [1992] HCA 25; (1992) 174 CLR 268 at 279-80