141 The jury may have been unwilling to conclude that the Crown had proved the assault by Fish on Brown beyond reasonable doubt, having regard to the differing accounts as to assaults in the holding cell.
142 To my mind it does not flow from the verdicts of acquittal on counts two and three that the jury must be taken to have rejected the evidence of Brown and Martin as not that of credible witnesses. The Crown was required to prove that the assaults occurred in the way it particularised its case. In respect of these counts (and the counts which were dependent upon the evidence of a single witness) the verdicts reflect that the jury entertained a doubt as to proof of one or more of the ingredients of the offence as particularised. Thus, with respect to count three the jury may have been disposed to accept Brown's evidence that he was assaulted but reasoned that, in the light of Gordon's account, the Crown had failed to exclude the reasonable possibility that the assault took place outside the holding cell. This is not to say that it was not open to the jury acting reasonably to be satisfied beyond reasonable doubt of the appellants' guilt of the perjury charges upon an acceptance of the evidence of Brown and Martin supported as it was by evidence from other sources.
Sentence appeal - Fish
143 Mr Dailly contended that the sentence of twenty months imprisonment, with a non-parole period of twelve months, imposed on Fish was excessive. He acknowledged that the crime of perjury is one which will attract a custodial sentence in the absence of exceptional circumstances.
144 In Mr Dailly's submission there were features of Fish's subjective circumstances which were exceptional such as to make a sentence of non full-time custody appropriate in this case. The matters instanced include that Fish, now aged thirty-seven years, is a first offender with an excellent work record. She joined the New South Wales Police at the age of nineteen years. She had served for eleven years at the date of her resignation. Her service record was unblemished and included the award of two commendations for good police work.
145 The appellant's home life had been a difficult one. She married Langton in 1990. They separated in 1994 and were divorced in 1999. There was a history of violence throughout the marriage. The evidence before the sentencing judge pointed to Langton as a violent alcoholic. On one occasion Fish suffered a broken nose during an incident of domestic violence. On another occasion Langton cut her lip necessitating repair with a number of sutures. The appellant worked hard throughout the marriage. At the time of their separation she had been left with substantial bills generated by Langton. To her credit the appellant borrowed money, paid the bills and, subsequently, repaid the borrowings.
146 In 1997 the appellant met her present husband. They married in 1999. Shortly after their marriage her husband was assaulted and had his ear bitten off. As a result of this assault he suffered from depression and a loss of confidence which led to him being unwilling to leave the home. There was considerable strain placed on the marriage as the result of the husband's difficulties and the pending criminal proceedings against the appellant. The marriage broke down but there remained an attachment between the two. The husband attended the court case on most days. There was hope that the marriage might be salvaged.
147 Another factor in the break-down of her marriage was the appellant's depression. At the time of the Royal Commission when the Kings Cross incident was first exposed, the appellant suffered from what was described as a mental breakdown. She lived under the spectre of criminal charges between 1995 and March 2000, when she was served with a summons in respect of the present charges. A report from Dr Joseph Gretch attested to the appellant's depression brought about by these events.
148 Following her resignation from the New South Wales Police the appellant obtained employment with a financial institution, Tower Australia. The Managing Director of Tower Australia, Mr Moon, gave evidence at the sentence hearing. He attested to the appellant as being a highly regarded and valuable employee who had risen from a relatively lowly position to a managerial role. Mr Moon expressed his willingness to employ the appellant upon her release.
149 As a former police officer it was noted that the appellant would serve her sentence of imprisonment in conditions of protection.
150 Considerable emphasis was placed on the delay between 1995, when the incident had come to light, and March 2000, when the charges were laid.
151 In Mr Dailly's submission, when one takes into account the penalties that have been imposed in respect of similar offences the sentence is manifestly excessive. He referred us to a number of cases in support of this submission.
152 In R v Aristodemou (unreported, NSWCCA, 30 June 1994) the applicant sought leave to appeal against a fixed term of two months imprisonment following his pleas of guilty to two counts of false swearing, contrary to s 87 of the Independent Commission Against Corruption Act 1988. The maximum penalty provided for that offence was imprisonment for five years and/or a fine of up to $2,000.00. Badgery-Parker J (in a judgment with which Carruthers and Finlay JJ agreed) observed:
"Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to jail except in very particular circumstances."