R v Holmes [2008] VSCA 128

20 There is no substance in any of these complaints. The trial was conducted on the basis that the charge of perjury consisted in the applicant having deliberately given false evidence in the Magistrates' Court to the effect of his statement, namely that at about 2am he was outside De Biers and saw the incident referred to in his statement. The allegation of perjury against the applicant was unambiguous. The supposed ambiguity or lack of particularity as to the actus reus of the offence charged did not trouble trial counsel, who made no complaint about the way the allegation was put and did not cross-examine the police prosecutor as to what he meant by the applicant's evidence according with "the basic feel" of his statement. Further, the matter was explored with the applicant in cross-examination, who accepted that he gave evidence to the effect of his statement. It is true that there was some variation in the evidence at trial as to what time the incident occurred,[10] but the reference to the relevant time in the applicant's statement, and also in the presentment, as being "about" or "approximately" 2.00am was sufficiently flexible to cover the variation in evidence as to the exact time of the incident.

21 The real question was whether the applicant had seen the incident he claimed to have seen outside De Biers at about the time stated. That was the way the case was conducted. The judge's charge made it clear that, if the jury were not satisfied beyond reasonable doubt of the Crown's case that the applicant deliberately gave false evidence in the Magistrates' Court in circumstances where he did not see the incident in question, the applicant was entitled to an acquittal. There was no risk whatsoever that the jury might have convicted the applicant on the basis that he did in fact see the incident, but that he had falsely stated the time he saw it, and thus given false evidence. Finally, and tellingly, when counsel for the applicant was pressed in this Court as to what particulars should have been provided to the applicant to clarify the charge, counsel could not identify any relevant particulars. Ground 6 is not made out.

22 As to ground 7, an issue in the trial was how long it would have taken the applicant to drive from Mrs Maffei's house in Bundoora to De Biers in the CBD. The Crown called Detective Sergeant Conemy who produced in evidence a video recording of a re-enactment that he and other officers had performed of a drive between Bundoora and De Biers. The officers commenced the re-enactment near Mrs Maffei's house at 2.10am and arrived at De Biers at 2.31am. They covered a total distance of 15.5 km (they did not travel on the freeway) and took 21 minutes. In cross-examination, Conemy accepted that the re-enactment took place on a rainy night, that the trip might be quicker on a dry night, that the time taken would depend on the run of traffic lights, the amount of traffic on the road, and the route taken. Counsel suggested to Conemy that the trip could be done safely in 15 minutes, as to which Conemy said that he was not an expert driver, that "everyone drives differently" and finally "You're telling me 15 and I'd like to see some evidence of that", to which counsel responded "Well, you will". The cross-examination then concluded, there was no re-examination, and the witness was excused.

23 Later, the applicant gave evidence that he started driving from Bundoora to the city before the end of the first call, "so I would say around two o'clock". When he made the call at 2.10am, he was "near the Eastern Freeway at the start - the start of Hoddle Street, heading towards the city. I'd just come off High Street or thereabouts". He estimated that it would take about 9 to 10 minutes from Bundoora to Hoddle Street (at about the Eastern Freeway) and from there to De Biers no more than five minutes, thus the total trip would take 14 or 15 minutes. The applicant also gave evidence that, in the early hours of the previous day (during his trial), he and an acquaintance had driven from Bundoora to Hoddle St, Abbotsford, in nine minutes, and then taken a further five minutes to drive to De Biers. They recorded their drive on video, and the video was played in court and tendered. The applicant was cross-examined extensively as to the times given in his statement and his evidence, and as to the time taken to drive from Bundoora to the city.

24 In her charge, the judge summarised Conemy's evidence and reminded the jury of the concessions made in cross-examination as to factors which may affect the time taken for the trip. She also summarised the applicant's evidence as to the time he had taken to do the trip, and referred to the video evidence led by the applicant.

25 In considering ground 7, it is significant that the evidence said now to be wrongly admitted was not the subject of any objection. The evidence of re-enactment led by the Crown was plainly relevant to the Crown's case that the jury should not believe the applicant's assertion that he had made the trip to De Biers in time to see the incident. In the absence of any objection, there was no reason why the judge should have refused to admit the evidence. In R v Neilan,[11] the Appeal Division quoted[12] with approval the following passage from American Jurisprudence 2d:

One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions. Minor variations in the essential conditions go to the weight rather than the admissibility, of the evidence.

There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances. [13]

In the present case, while the conditions of the re-enactment were not identical to the conditions existing on the night in question, there was substantial similarity in the essential conditions, and any differences in the conditions of the re-enactment and the night in question could be, and indeed were, explored in cross-examination. The judge's charge on the matter was neutral, in the sense that she simply summarised the evidence, and the evidence was readily comprehensible by the jury, as were the competing inferences which were sought to be drawn from it. No exception was taken to the charge in this respect. In these circumstances, ground 7 is not made out.

26 As to ground 8, the way in which the case was conducted meant that the issue of mistake simply did not arise. The judge was clearly aware of the Crown's onus to negative mistake as, in the course of directing the jury as to the elements of perjury, she said that it was necessary that the Crown establish that the applicant "deliberately gave the evidence, in other words not inadvertently or by mistake". She then said that "There is no issue raised in this trial that Troy Holmes did anything other than give his evidence deliberately and that he knew the truth or falsity of what he said. The issue is simply whether or not it was true." In my view, the judge was correct in charging the jury as she did on the issue of mistake.

27 As to the complaint made in ground 8(c), namely that the judge should have directed the jury that either Mrs Maffei or the applicant was correct as to "where he was and what he was doing" on the night in question, in my view such a direction was neither necessary nor desirable. The question for the jury was whether, on the whole of the evidence, the Crown had proved the offence beyond reasonable doubt. To highlight just the contradiction between Mrs Maffei's and the applicant's evidence would have risked distracting the jury from the wider body of evidence which it was required to consider. In any event, both from the evidence and the judge's charge (and doubtless counsel's addresses), the jury was aware of the direct conflict between Mrs Maffei's and the applicant's evidence, and the consequences of accepting or rejecting that evidence. Ground 8 is not made out.

28 As to ground 9, the complaint arises in the following way. In the course of cross-examining the applicant as to his statement that he had gone to De Biers "to meet some friends", counsel for the Crown said to the applicant "Just tell us who your friends are, and they will be coming and saying that they saw you there at a certain time, no doubt?" The applicant mentioned a few names, before his counsel objected to the questioning. Discussion then ensued in the absence of the jury. The judge stated that the objection was properly raised because, while the prosecutor was entitled to ask the applicant to name the friends that he said he was going to meet that night, it was not proper to comment or to question the applicant about bringing those people along to give evidence. The applicant's counsel then said to the judge that "The jury have heard that now and it may well be that when you charge the jury you will want to say something about that". The judge indicated that she would in her charge emphasise that there was no onus on the applicant to call evidence or prove anything. She stated that she was "not concerned that it's caused any ultimate damage because of what I know will go into the charge. The jury won't be left with any illusion about that".

29 In my view, the judge indeed left the jury with no room for doubt regarding the onus of proof. In her opening comments and on numerous occasions in her charge, the judge told the jury that the Crown bears the onus of proof, that the Crown must prove the applicant's guilt of the offence charged to the standard of beyond reasonable doubt, and that beyond reasonable doubt is a "high standard". The judge also stated on several occasions in her charge that the applicant did not have to prove anything. It is not necessary to refer to each instance, but I note the following examples. At the beginning of the charge, the judge said that "at all times you must remember that it is for the prosecution to prove to you, beyond reasonable doubt, that Troy Holmes was not outside De Biers witnessing that altercation". She also said that "Mr Holmes does not have to prove anything to you because he is presumed innocent until the prosecution satisfies you of his guilt, he does not have to establish his innocence to you so there is no onus on him at all to prove anything because of that presumption of innocence".

30 Counsel for the applicant now submits that the judge should have directed the jury as to the prosecutor's "reversing the onus of proof". In my view, the judge was correct to deal with the matter in the way that she did. The judge's charge, given in the most precise and clear language, was comprehensive and scrupulously fair to the applicant at all times. If the prosecutor's impermissible line of questioning had any tendency to reverse the onus of proof, the judge's charge was more than adequate to overcome any unfairness the applicant might otherwise have suffered. In all the circumstances, ground 9 is not made out.

31 As to ground 10, the judge instructed the jury that corroboration was required to establish the charge of perjury. She told the jury that the Crown put the case on the basis that Mrs Maffei gave evidence as to facts clearly inconsistent with the applicant's evidence in the Magistrate's Court as to where he was and what he was doing at the time he made the calls to her, so that they could not both be right. The judge explained to the jury that it was her duty to determine whether there was any evidence capable as a matter of law of amounting to corroboration of Mrs Maffei's evidence, and to direct the jury as to any such evidence. She told the jury that it was their duty to consider any such evidence to determine, first, whether they accepted the evidence as reliable and, next whether, in their opinion as the judges of the facts, the evidence did corroborate Mrs Maffei's evidence. The judge then directed the jury that there was evidence capable of constituting corroboration of Mrs Maffei's evidence, namely evidence given by Stuart Wilson, a senior technology specialist employed by Telstra. The judge, having summarised Mr Wilson's evidence earlier in her charge, told the jury that "It is of course a matter for you as to whether you believe or accept that evidence".

32 It is convenient at this point to describe the substance and context of Mr Wilson's evidence, which was as follows. As mentioned at [9] above, the applicant made several telephone calls to Mrs Maffei in the early hours of the morning in question. The Telstra telephone records state Bundoora to be the billing name for the first[14] and second[15] calls, while Heidelberg is the billing name for the other three calls.[16] Wilson gave evidence about the design of the Telstra mobile telephone network and how the billing name is assigned according to the transmitting cells through which a call is made. He explained that the network operates from a series of base stations and that in the metropolitan area there are usually three transmitting cells (effectively antennae) per base station. Mobile phones generally operate in the most appropriate cell, which is the nearest and strongest to where the mobile phone is physically located. At peak times, when there may be insufficient capacity in the most appropriate cell, other cells may be used. In effect, the mobile phone making the call will find the next most appropriate cell, which is usually close by or adjacent to the cell which would ordinarily be the most appropriate cell. Even at the busiest times, the system is designed to deal with 95 to 98 percent of calls through the most appropriate cell, that is without having to find an alternative cell. In the early hours of the morning, the capacity of the system is extremely high, thus the most appropriate cell can be used without the need to select an alternative cell.

33 When a billing name is given to a particular call, there are several base stations (which in turn contain further transmitting cells) through which that call could have been made. Telstra have detailed records which indicate the precise cell used for a particular call, but these records are destroyed after a certain period has elapsed. These records were not available in the present case. Thus, Wilson could only say that, as at 2002, the applicant's Bundoora calls could have been made through any of three possible base stations, Mill Park, Bundoora and La Trobe University, while the Heidelberg calls could have been made through any of five possible base stations, Rosanna, Heidelberg West, Heidelberg, Bulleen, and Banksia/Lower Heidelberg. As to the distance covered by a base station, Wilson said that technically a radial distance of 35km (which may be extended to 70km) is possible, but in metropolitan areas that figure is "never the case" because of interference from the built environment. In metropolitan areas the most important thing limiting the coverage of base stations and cells is their relationship to other sites and the properties of those sites, including the surrounding terrain (whether it is flat, hilly, in a gully etc), the relevant angles and extent of interference by buildings. In more built up areas, and as one gets closer to the city, the cells are smaller and may serve a radius of only one or two kilometres. Thus, said Wilson, the Bundoora calls would have been made from a location within four kilometres of the relevant base station, while the Heidelberg calls (being closer to the city) would have been made from a location within two kilometres of the relevant base station. Later, Wilson was asked about the possibility of making a call from the Hoddle Street/Eastern Freeway intersection through the Heidelberg base station. He stated that it was "extremely remote through to zero". He said that there was a cluster of other major sites (base stations) between Hoddle Street and Heidelberg, and the distance covered by a site is largely dependent on its interaction with other sites, and to a lesser extent on its own characteristics. "The local site should, for the most part, provide the coverage," he said.

34 In cross-examination Wilson agreed that the coverage of cells was not regular, because of differences in their topography and that of other cells in the network. One of the areas where coverage of a cell might be "considerably longer" was a valley, like the Yarra River valley along which the Eastern Freeway runs. He agreed that the four kilometre figure referred to above was based on his experience, knowledge of systems, and the operation of those systems. He agreed with counsel's proposition that there was "no particular survey - no hard facts" that he relied on for that figure. As to counsel's suggestion that a cell may provide coverage over seven kilometres where the topography allows for it, he said "Well, where topography and the absence of other sites allow for it, yes" (emphasis added). He also agreed that the telephone records available could not establish if the mobile phone was moving during the call, and it was possible that the mobile phone was moving during the calls.

35 The applicant and three of his acquaintances gave evidence that they had, during the trial in the County Court, engaged in a video re-enactment of the trip from Bundoora to the city during which they tested their mobile phones at Hoddle Street near the Eastern Freeway, and the screens displayed several different locations, being Heidelberg, Abbotsford, and Fitzroy, depending on where they stood within a small radius. The video was played in court and tendered. They did not make any phone calls. Rather, their screens displayed information of the kind that Wilson had referred to in his evidence, namely information received in the idling process. Wilson had explained that a mobile phone in idle is continually looking at the coverage of the network, picking out the most appropriate cell, and looking at other alternative cells, and the mobile phone periodically updates the network as to its location so that, if someone wishes to call the mobile phone, its location is known within the network. He said that there was a difference between the idling process, where the mobile phone effectively receives information from the network, and the process of making a call where the mobile phone automatically selects the most appropriate cell to make the call. Nevertheless, he agreed that if a mobile phone displayed a location on its screen in idling mode, it was "quite likely" that if a call was to be made, the mobile phone would make that call through a cell referable to the displayed location. Finally, the applicant's counsel put to Wilson in cross-examination that the applicant had done the experiment referred to above and seen Heidelberg displayed on his phone when he was at Hoddle Street near the Eastern Freeway. Wilson said he found that hard to believe "because of the sheer volume of other sites at the northern end of Hoddle Street". He repeated that the chances of it happening were remote. If it did occur "we would be able to look and find an explanation". He agreed with counsel's suggestion that one possible explanation was that there had been a number of outages in the system at the relevant time, but as to that he did not now have any information.

36 Although Wilson expressed scepticism as to the factual basis of the cross-examination, namely that the applicant had seen "Heidelberg" displayed on his mobile phone at Hoddle Street, counsel for the Crown did not challenge the applicant and his acquaintances as to the veracity of this aspect of their evidence. He only briefly cross-examined the applicant's acquaintances. He suggested to Mr De Cioccio, who was a solicitor and a friend of the applicant, that he had been asked to participate in the experiment and give evidence about it to lend credibility to the applicant's case, but went no further in any challenge to the acquaintances' evidence.

37 With that overview of Wilson's evidence and its relationship to the other evidence, I now consider ground 10. First, I note that the ground complains of a miscarriage of justice occasioned by the judge directing the jury that the evidence of Wilson "constituted corroborative evidence". This is not correct. The judge did not direct the jury that Wilson's evidence in fact corroborated Mrs Maffei's evidence. Rather, she told the jury that Wilson's evidence was capable, as a matter of law, of corroborating Mrs Maffei's evidence. As the parts of the charge referred to above demonstrate, the judge carefully explained to the jury that she was the judge of the law and they were the judges of the facts, and as such, it was a matter for them as to whether they accepted Wilson's evidence as reliable and, if so, whether his evidence did corroborate Mrs Maffei's evidence. The underlying factual premise of ground 10 being false, and the judge having correctly charged the jury, the ground must fail. But in case this be considered a technical answer, the result is the same if ground 10 is regarded as objecting that the judge erred in directing the jury that Wilson's evidence was capable of corroborating Mrs Maffei's evidence. Indeed, as I understood counsel at one point in his submissions, he conceded that the evidence was legally capable of corroborating Mrs Maffei's evidence, but not as a matter of fact.

38 In my view, the judge was correct in directing the jury that Wilson's evidence was capable of corroborating Mrs Maffei's evidence. In Doney v The Queen[17], which involved the evidence of an accomplice, the High Court stated that:

The essence of corroborative evidence is that it "confirms", "supports" or "strengthens" other evidence in the sense that it "renders [that] other evidence more probable".[18]

The Court observed, by reference to relevant authorities, that "it is well settled that corroboration may be in the form of circumstantial evidence",[19] and that "circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded".[20] The Court added:

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt.[21] (emphasis added)

The Court observed that although the evidence in question in that case (a note which tended to connect the applicant with the importation of cannabis resin) might be capable of explanation on some basis other than that its author was knowingly concerned in the drug importation, "it was open to the jury to reason that it was likely, although not inevitable, that the person who wrote the note, thus exercising dominion over the boxes from the container by directing the removal of some of them to some other place, was a person who had been knowingly concerned in the importation of its contents. That probability, if accepted by the jury, would itself tend to confirm the account given by [the accomplice]".[22]

39 In the present case, there were several possible inferences available from Wilson's evidence. On one view, his evidence supported Mrs Maffei's evidence by placing the applicant at or near Bundoora and Heidelberg at the time of making the calls, and not closer to De Biers as the applicant claimed. On another view, Wilson's concession in cross-examination - that if a mobile phone displayed Heidelberg on its screen at Hoddle Street it was "quite likely" that it would make a call through the Heidelberg base station - might have led to an inference that the applicant had indeed made the 2.10am call from Hoddle St as he claimed. On another view, and notwithstanding the concession, the jury might have rejected outright the applicant's evidence that he made the 2.10am call from Hoddle Street. It is well established that evidence is not treated as being without corroborative value merely because there is more than one inference that might be drawn from the evidence.[23] If, as was the case here, the evidence was, on any reasonable understanding of it, capable of corroborating matters which required corroboration, the evidence should have been left to the jury as the triers of fact. Finally, and of some significance, the applicant's trial counsel took no exception to the judge's charge on corroboration. In all the circumstances, ground 10 is not made out.

40 It is now convenient to deal with ground 1, namely that the conviction was unsafe and unsatisfactory. This is an independent ground of appeal and I deal with it as such, but I note that in effect counsel sought to rely on the complaints raised under grounds 6, 8, 9 and 10 to strengthen his submission as to ground 1. As these grounds were not made out, ground 1 must stand or fall on its own merits. In my view, and bearing in mind the requirement that this Court make a careful independent assessment of the evidence,[24] the jury's verdict was not unsafe and unsatisfactory in the sense referred to in the authorities.[25] The jury were directed in the strongest terms that they could not convict unless they were satisfied of the applicant's guilt beyond reasonable doubt. The Crown case was circumstantial, but it was nevertheless a strong case. The judge explained to the jury that they could only draw an inference necessary to the process of reasoning urged by the Crown if that inference was the only reasonable inference to be drawn from the facts. Looking at the evidence as a whole, and considering the cumulative effect of the evidence, rather than focusing on discrete aspects of the evidence in isolation, I am not satisfied that the jury, acting reasonably, should have entertained a reasonable doubt as to the applicant's guilt. Accordingly, ground 1 is not made out.

41 Ground 11, which alleges an accumulation of errors, must also fail given that none of the alleged errors have been made out.

42 It follows that in my view the application for leave to appeal against conviction should be refused.

43 The applicant's grounds of appeal against sentence were as follows:

1. The judge erred in taking into account the applicant's subsequent conviction in finding that he had more limited prospects of rehabilitation, such prospects being relevant to the severity of the sentence.

2. The judge erred in failing to suspend wholly the sentence of imprisonment given the applicant's history as a prison officer and a policeman.

44 Ground 1 refers to the fact that although the applicant had no prior convictions, he had been suspended from the police at the end of 2002 because of a separate and unrelated charge of perjury relating to a parking ticket. In 2004, the applicant was convicted of the parking ticket perjury and sentenced to a term of imprisonment, fully suspended. The judge said:

That matter is not a prior conviction for the purposes of any increase in penalty for this offence, but it does raise a need to consider the evidence of your good character as affected by this further conviction for the same offence. Your prospects of rehabilitation are accordingly moderated in the sense that it cannot be said that this is an isolated instance in an otherwise unblemished life both before and since offending. Thus your prospects of rehabilitation are not so straightforward.

The judge was correct in dealing with the "subsequent conviction" in the way she did. No error is established, thus ground 1 fails.

45 It is convenient to deal with grounds 2 and 3 together. The applicant's counsel on the plea accepted that a sentence of imprisonment was appropriate, but urged the judge to consider wholly suspending any term of imprisonment, because of a range of mitigating factors. Similarly, in this Court the applicant's counsel did not submit that the term of 12 months' imprisonment was inappropriate, but rather submitted that, in the exercise of the sentencing discretion, the judge should have wholly suspended the sentence because of the combined effect of the following mitigating features:

c) exceptional service and contribution to the community;

d) hardship to the applicant's wife and four children[26];

e) the applicant's need for treatment for depression;

f) as a former prison warden and police officer the applicant's time in custody will be more harsh due to him having to be held in protective custody;

g) the applicant's depression will make any time in custody more onerous than would otherwise be the case;

h) the applicant did not commit the offence during the course of his duty as a police officer. He was off-duty at the time of [allegedly] witnessing the altercation and gave evidence in the Magistrates' Court in plain clothes;

i) the applicant made no financial or other gain from the offence;

j) the evidence given by the applicant in the Magistrates' Court was equivocal in that he never gave evidence that he witnessed what constituted the assault for which the defendants were ultimately convicted and fined;

k) the applicant, prior to being granted bail, served approximately 6 weeks of the sentence imposed by the trial judge;

l) according to the most up to date statistics available in the Victorian Sentencing Manual located on the Judicial College website, of a total of 77 perjury offences committed in Victoria over the period 2001 to 2006 only two offenders received custodial sentences. The vast majority of cases were wholly suspended.

46 Counsel sought to distinguish R v Schroen[27] on the basis that in that case the offender stood to gain from her perjury, whereas in the present case the applicant did not stand to gain personally or professionally from the perjury. He emphasised that Schroen only received three months imprisonment for what was her third dishonesty offence, whereas the perjury here was the applicant's first offence. There were, in addition, the other factors personal to the applicant referred to above. Counsel emphasised the applicant's need for treatment for depression, and the fact that because of his depression, any time in prison would be more onerous on the applicant than a person in normal health.[28] Counsel also submitted that there was a serious risk that a sentence of immediate imprisonment would have a significant adverse effect on the applicant's mental health.[29]

47 In my view, no error is apparent in the judge's exercise of the sentencing discretion. The judge gave a comprehensive set of sentencing remarks which took into account each of the matters referred to above, except (k) (which is a matter arising after sentence) and (l) which was not relied on by counsel on the plea. A reading of the sentencing remarks indicates that the judge dealt with the subjective circumstances of the applicant as well as the objective features of the offence with the utmost fairness, balance and attention to detail. On the whole, the judge accepted the mitigating factors put on the applicant's behalf. As a result, the judge reduced both the overall term of the sentence and the portion thereof to be served immediately. She recognised, however, that the applicant had shown no remorse, that his offending did not occur on the spur of the moment but rather was calculated and he had had time to rethink his position over the period of many months between the time of making his statement and the day he gave evidence in the Magistrates' Court.

48 The judge was aware that she needed to impose a sentence which, while taking account of the mitigating features, also adequately reflected the seriousness of the offending. As to that, she correctly emphasised the seriousness of curial perjury. She referred to the relevant authorities, which it is not necessary to set out here save to note that in Schroen Vincent JA observed[30] that curial perjury "can strike at the very foundation of the legal process and it would be a wholly exceptional case where the giving of false evidence on oath would not warrant an immediate custodial sentence". The judge ultimately concluded that, in all the circumstances, the applicant's case "does not fit into the wholly exceptional category". She considered that the requirements of punishment, denunciation and general deterrence could not be met by anything other than an immediate custodial sentence. In my view, that conclusion was well open. It should not be overlooked that the maximum penalty for perjury is 15 years' imprisonment and, notwithstanding the various mitigating factors present, it might be said that the sentence imposed on the applicant was merciful.

49 For these reasons, in my view leave to appeal against sentence should also be refused.

[1] [2008] VSCA 47 [59] - [63].

[2] [2007] HCA 30; (2007) 230 CLR 559, 596-7 [113].

[3] Mrs Maffei, who was known as Narie Davis at the time of the incident, said she had previously "dated" the applicant.

[4] The judge ruled that the applicant's statement was not a statutory declaration as defined by s 107 of the Evidence Act 1958.

[5] The applicant gave evidence before the Magistrate on 22 January 2003. It appears that no transcript from that day was available.

[6] The statement, made on 14 March 2002, was exhibit H in the County Court.

[7] The applicant said in evidence in the County Court that when he arrived outside de Biers he saw the crowd controllers having a "charismatic discussion" with the three darker males, by which he meant "there was a lot of yelling"; transcript 287-288. He said in cross-examination that "my version of charismatic is they're being loud, boisterous, obtuse"; transcript 309.

[8] [1983] HCA 41; (1983) 154 CLR 212.

[10] One witness said that the incident may have occurred as late as 2.40am.

[11] [1992] VicRp 5; [1992] 1 VR 57.

[13] 29 Am. Jur. 2d s 824 (footnotes omitted).

[14] Made at 1.25am and lasting 37 minutes.

[15] Made at 2.08am and lasting eight seconds.

[16] Two calls made at 2.09am and 2.10am lasting seven and eleven seconds respectively, and a further call at 2.10am lasting 17 minutes.

[17] [1990] HCA 51; (1990) 171 CLR 207.

[23] See R v Kaljzich (1989) 39 A Crim R 415, 429-434.

[24] R v Neilan [1992] VicRp 5; [1992] 1 VR 57, 63.

[25] See M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-494.

[26] His wife was pregnant with their fourth child at the time of sentencing.

[27] [2001] VSCA 126.

[28] See R v Tsiaras [1996] VicRp 26; [1996] 1 VR 398, 400.

[29] See R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276.

[30] [2001] VSCA 126, [14].