REGINA v STAVROPOULOS

Regina v O'Brien (NSWCCA, unreported, 10 June 1993) Regina v El-Sayed [2003] 57 NSWLR 659 Regina v Waqa (2004) 149 A Crim R 143 CASES CITED: Regina v KS [2005] NSWCCA 87 Regina v Chaaban [2006] NSWCCA 352 Regina v Douar [2007] NSWCCA 123 Regina v Sukkar [2006] NSWCCA 92

PARTIES: REGINA v Paul STAVROPOULOS

COUNSEL: Crown: GIO Rowling Resp: A Bellanto QC/J Ghabrial

SOLICITORS: Crown: S Kavanagh Resp: Shephard & Shephard

IN THE COURT OF CRIMINAL APPEAL 2007/3210

McCLELLAN CJ AT CL HALL J PRICE J

FRIDAY 7 DECEMBER 2007 REGINA v CRISTOS STAVROPOULOS Judgment

1 McCLELLAN CJ at CL: I agree with Hall J 2 HALL J: The Crown, by way of notice of appeal, dated 28 June 2007 gave notice pursuant to s.5DA of the Criminal Appeal Act 1912 (NSW) whereby the Acting Deputy Director of Public Prosecutions indicated his desire to appeal to this Court against a sentence pronounced in the District Court of New South Wales at Sydney on 28 July 2006 (Taylor, DCJ). 3 The respondent was charged with an offence under s.86(2)(a) of the Crimes Act (the aggravated form of the offence of kidnapping). He originally faced trial with two co-offenders, Eric Moefili and Joseph Montinez. The co-offenders were found guilty following a second trial. The respondent was called to give evidence in the first trial by the Crown. The jury were unable to reach a unanimous verdict. On the re-trial, the Crown did not call the respondent to give evidence. This was said to be by reason of a decision by the Crown Prosecutor based upon the respondent's departure from a statement he gave police dated 30 March 2006 in two particular respects (referred to below) and by reason of a belligerent attitude it was claimed he displayed towards those acting for the Crown at the second trial. 4 In order to understand the ways in which the Crown contended the respondent gave evidence at the first trial which was at variance with his statement, it is necessary, briefly, to refer to the factual matters relevant to the kidnapping offence. 5 The kidnap victim was Sempat Abkarian, also known as "Sam". The respondent had a son who died on 7 February 2002 aged 19 years from a fatal drug overdose. The respondent claimed that his son's death had not been properly investigated and he wanted "some answers" from Abkarian who he understood was with his son at the time he died. He said he wanted to know how his son had died. 6 A plan was made by the respondent with Moefili and Montinez whereby Moefili undertook to find the victim for a payment of $10,000. There was much evidence as to the events leading up to the eventual unlawful detention of the victim Abkarian in November 2004. He was ultimately taken to a street in the Blacktown region. On alighting from a car, the victim, according to the respondent, commenced to run away, but was caught by Moefili who brought him back and made him kneel in front of the respondent. At the trial, the respondent departed from the account in his statement to the extent that he said the victim "pretended" to run away. This potentially carried significance for, if accepted, it suggested that Abkarian had not, in truth, been captured and restrained by the respondent's co-offenders. 7 Mr Purves, in his affidavit sworn 20 August 2007, said (paragraph 5):- "During the course of his examination in chief, he referred to the victim, Mr Abkarian, 'pretending' to run away from the accused Moefili. This was not in accordance with his police statement of 30 March 2006 …" 8 In relation to the second matter concerning the evidence given by the respondent at the first trial of his co-offenders, Mr Purves stated in his last-mentioned affidavit (paragraph 5):- "… In cross-examination, he said that he recognised one of the voices in the background of one of the telephone intercepts as Abkarian's voice … and that he was suspicious that if he paid money to the accused, the victim might receive some of the money. Again, this was not in accordance with his police statement." 9 This last-mentioned matter was said to have raised the issue of "a set-up", that is, that the victim was, in fact, party to a scheme with Moefili and Montinez. The Crown Prosecutor obtained leave to cross-examine the respondent under s.38 of the Evidence Act. It was put to him that he was mistaken on the voice identification of the victim. The respondent denied that he was mistaken. 10 Eric Moefili and Joseph Montinez were charged that:-

(a) on or around 11 November 2004 at Sydney, while in the company of each other, they detained Sempat Abkarian without his consent, with intent to obtain an advantage; and

(b) between 11 November 2004 and 19 November 2004 at Sydney, in the company of each other, with menaces, demanded from Sempat Abkarian money, with intent to steal that property from Sempat Abkarian. 11 The jury were, as earlier noted, unable to reach a unanimous verdict. 12 The second trial was heard in January and February 2007. The jury returned a guilty verdict on 2 February 2007. 13 Mr Purves stated in his first affidavit that he appeared at the second trial of the matter held in January and February 2007. Before the trial on Monday 22 January 2007, he and his instructing solicitor, Ms Jassy, conferred with the respondent. He said the respondent became quite belligerent during the conference and his attitude was abrasive. The respondent claimed that "it was a set up", by which he explained that he meant a "set up by Abkarian and Moefili". Mr Purves reminded him of his plea of guilty and asked him to read his statement. The respondent then said words to the effect that the police had pressured him to plead guilty and that he had been given bad legal advice and he should not have pleaded guilty. However, Mr Purves stated he did not say that he wished to withdraw his plea. 14 Mr Purves' assessment was that he expected the respondent to be a difficult witness and, ultimately, decided that he would not call him as a prosecution witness but simply make him available for cross-examination. However, following discussion, counsel for each co-accused said that they did not want to cross-examine him. Accordingly, the respondent was not called to give evidence. 15 The respondent further stated in his affidavit (paragraph 25) that he gave evidence on 28 September 2006 to the best of his ability and to the best of his memory on the day. He then explained in paragraph 26:- "When I gave evidence about Moefili and Abkarian setting the kidnapping up, I had formed this view based on the transcript of conversation 637 between Abkarian and Moefili, which I have referred to above. After reading this conversation, I had reflected about the night of 11 November 2004 to see if there were any signs that it was a set up, and when I gave my evidence I was convinced in my own mind, because of what I read in that conversation, that it was a set up. I told my barrister, Mr Johnson, about my suspicion and he told Judge Taylor about this on my sentence."

16 In relation to the question of Abkarian running from the car, he said in his affidavit (paragraph 28) that:- "… when I said that he was 'pretending to run', I had in my mind the above conversation between Abkarian and Moefili about getting me for $50,000 instead of $10,000. I had assumed that he must have been pretending to run, based on what he said to Moefili in that conversation. I don't remember anyone asking me in Court why I thought he was pretending to run."

17 The respondent denied that he was rude or aggressive with Mr Purves. He did recall being "a little bit upset". He said there was no reference to anything about him having pleaded guilty and he did not recall being asked to read his statement. He denied that he had said that the police had pressured him to plead guilty. He claimed that Mr Purves told him what to say when he gave evidence. He said that he never asked him any questions about the evidence that he had given on 28 September 2006. He said that after his conversation with Mr Purves, he waited outside the court for a short time. A short time later he was told by Mr Purves that there was no need for him to give evidence. 18 Finally, the respondent said that he never had the assistance of a Greek interpreter during any conversation he had with Senior Constable Walsh, Ms Campbell (prosecuting counsel) or Mr Purves or anyone else concerning the matter (paragraph 37). He maintained that he was always willing to give evidence against his co-accused, that he had come to court to give evidence each time that he was asked and that he had fully co-operated with police and prosecutors at all times. 19 In relation to the conference held with the respondent in January 2007, Mr Purves stated that he did not discuss his evidence with the respondent and he did not tell him "what to say" when he gave evidence. He stated that he advised him as to the manner in which he should give his evidence. The conference, he said, was conducted in English and there was no difficulty in communication with the respondent. 20 I was not impressed with the respondent in the evidence that he gave in this appeal. He displayed an aggressive and dismissive attitude. Where his evidence conflicts with that of Mr Purves, I accept the evidence given by Mr Purves.

The sentencing proceedings 21 On 27 March 2006, the respondent pleaded not guilty to the following charge:- On or about 11 November [2004] at Sydney, while in the company of Eric Moefili and Joseph Montinez, he detained Sempat Abkarian without his consent and with intent to hold him with intent to obtain an advantage contrary to the provisions of s.86(2)(a) of the Crimes Act 1900 . 22 The maximum penalty for an offence under the provision is imprisonment for 20 years. 23 On 20 March 2006, at trial, the respondent was originally re-arraigned and, upon such re-arraignment, he pleaded guilty to the offence. His Honour, as trial judge, accepted the plea of guilty, discharged the jury and adjourned the proceedings for sentence. 24 At the hearing on sentence, a document entitled Agreed Crown Facts dated 9 June 2006 was tendered and admitted as Exhibit A. The evidence also included a statement of Maria Stavropoulos (Exhibit B) and a pre-sentence report dated 9 June 2006. 25 The respondent was sentenced to a non-parole period of 10 months commencing on 28 July 2006 and expiring on 27 May 2007, with a further term of imprisonment for one year and two months commencing on 28 May 2007 and expiring on 27 July 2008 and directed, pursuant to the provisions of s.12 of that Act, that the sentence be suspended and the respondent be released from custody on condition that he enter into a good behaviour bond for the term of two years. 26 The ground relied upon in the notice of appeal is stated to be:- "… that Cristos STAVROPOULOS received a reduced sentence because of his undertaking to assist law enforcement authorities and he failed to fulfil that undertaking." 27 In the course of his remarks on sentence, the sentencing judge observed at pp.11-12:- "The issue of motivation or purpose is so important on sentence that I set out in detail the offender's statement which was prepared in conjunction with the police at Chatswood Police Station on 30 March 2006, that is a few days after he entered the plea of guilty. It is important to recall that this is evidence that he is prepared to give in Court . The statement is consistent with the way events unfolded on the evening of the offence, particularly the conduct of the offender in the car in what seems to have been the focus of the detention, that is, the interrogation of the victim at a remote place. The subsequent conduct of the offender, leaving the area when this had been done, is also consistent with what his purpose was in being involved in the offence. I am not persuaded that the evidence suggests that the offender had an expectation that some injury was to befall the victim once he left." (emphasis added)

The Crown's contentions 28 The Crown, on this appeal, asserted that the respondent did not give evidence in accordance with his statement and he thereby failed to fulfil the undertaking which the Crown alleged he had given. The first trial, as noted earlier, culminated with a failure by the jury to agree upon a verdict and on 6 October 2006, the jury was discharged. 29 The Crown in this appeal relied upon the following facts:- "On 22 January 2007, during a conference, the respondent showed Mr Billy Purves of counsel, the Crown Prosecutor briefed to appear for the Crown in the trial in Moefili and Montinez, that he did not intend to fulfil his undertaking to assist the law enforcement authorities. On that date at Sydney District Court, before his Honour Judge Geraghty and a jury, each of Moefili and Montinez pleaded not guilty to each of the charges set forth in paragraph 6 of the submissions. The respondent, having shown that he did not intend to give evidence then in accordance with his undertaking, the Crown Prosecutor did not call him to give evidence at the trial. On 2 February 2007, the jury found each of Moefili and Montinez guilty of both offences and on 4 April 2007, his Honour Judge Geraghty sentenced each of them to terms of imprisonment." (Appellant's written submissions, paragraph 7) 30 The Crown, in its written submissions, contended:- "18. The respondent, having failed to fulfil his undertaking to give evidence against Moefili and Montinez, this Court has power to vary the sentences imposed upon the respondent by his Honour: Criminal Appeal Act 1912, s.5DA(2) and Regina v Bagnall (unreported, Court of Criminal Appeal, 10 June 1994). The reason why the respondent failed to fulfil his undertaking is of little materiality: Regina v El-Sayed (2003) 57 NSWLR 659, paragraph 32, per Simpson J. 19. No case appearing for the exercise of this Court's discretion to dismiss this appeal, this Court should increase the sentences imposed by his Honour by the amount by which it was reduced by reason of the respondent's undertaking, so as to impose a sentence that would have been imposed (had) the respondent not undertaken to give evidence against Moefili and Montinez: Regina v Waqa (2004) 149 A Crim R 143, paragraphs 24-26 per Dunford J."

Affidavit evidence 31 The Crown relied upon the following affidavits:-

• Affidavit of Mr Billy Purves sworn on 20 August 2007.

• Affidavit of Mr Billy Purves sworn on 7 November 2007 (affidavit in reply to the respondent's affidavit sworn on 30 October 2007).

• Affidavit of Pearl Jassy, solicitor, sworn on 20 August 2007.

• Affidavit of Detective Senior Constable Benjamin Paul Walsh sworn on 8 November 2007. 32 The respondent relied upon the following affidavits:-

• Affidavit of Maria Stavropoulos sworn on 30 October 2007.

• Affidavit of Thi Ngoc Gan Gerg Le sworn on 30 October 2007. 33 Mr Purves was cross-examined on his affidavit by Mr A J Bellanto QC, who appeared with Ms Jehane Ghabrial on behalf of the respondent. The respondent was cross-examined by the Crown on his abovementioned affidavit.

Issues arising in the appeal 34 The written submissions for the respondent dated 12 November 2007 identify the following as the issues arising on the application brought by the Acting Deputy Director of Public Prosecutions:- Issue 1: Whether the respondent, in fact, gave an undertaking to give evidence.

Issue 2: Whether the sentencing judge in determining the respondent's sentence, gave him a discount by reason of any undertaking to give evidence.

Issue 3: If the sentencing judge did make such a discount, then what were the terms of the undertaking and were those terms breached by the respondent?

Issue 4: If an undertaking was given by the respondent which he breached, whether the Court had a discretion not to intervene and, if so, how that discretion should be exercised.

The issue as to whether an undertaking was given by the respondent

(a) Assistance to authorities 35 At the sentencing hearing on 9 June 2006, the sentencing judge was advised by counsel for the respondent that, in circumstances which would be clarified by the Crown, there was no letter of assistance from police authorities. I note that no such clarification was given to the sentencing judge. The Crown did not suggest that the respondent had given an undertaking by way of future assistance in writing, nor was there any evidence of a memorandum or record of an obligation on the respondent to give evidence at the hearing of charges brought against his co-offenders. 36 The sentencing judge stated (remarks on sentence, p.26):- "In considering assistance to authorities, I am required to consider the matters set out in s.23(ss2) of the Act. I have set out the statement of the offender and of the police in detail. In my view, it was of significant assistance to authorities. I do not think this offender is likely to commit any other offences after release. He would, most likely, suffer harsher conditions as a consequence of this assistance. The evidence of the offender is direct evidence and accepting, as I do, his purpose in committing the offence is reliable evidence. In Regina v Sukkar [2006] NSWCCA 92, Howie J discussed the appropriate discount that should be given to an offender for plea and assistance. His Honour expressed the opinion that such discounts of more than 40% should be very exceptional. It is likely that the offender will be called as a Crown witness. In conformity with Sukkar's case, it was held in Regina v Maka (No 2) [2005] NSWCCA that a 'rolled up' discount for plea and assistance is appropriate. In my opinion, a discount for the plea and assistance of one-third from what would otherwise be appropriate as a head sentence is appropriate." 37 In the conclusion to the section of the remarks on sentence entitled "motivation", the sentencing judge recorded:- "Whilst this conduct, for the purposes submitted by the Crown is suspicious, I have concluded that what Mr Stavropoulos said to the police on 30 March and about which he is prepared to give evidence, represents what is and went through his mind at all material times." 38 I note here that the sentencing judge spoke in terms of a willingness or preparedness by the respondent to give evidence, rather than there being any reference to an undertaking or an obligation by him to do so. 39 Section 23 of the Crimes (Sentencing Procedure) Act. Section 23(1) is in the following terms:- "A Court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence." 40 Section 23(2) identifies specific matters which the Court must consider in deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty. These include the matters set out in s.23(2)(a) to (j). The relevant sub-paragraphs, for the purposes of the present appeal, are those in (b), (c), (d), (e), (f) and (i). They are in the following terms:- "(b) The significance and usefulness of the offender's assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered, (c) the truthfulness, completeness and reliability of any information or evidence provided by the offender, (d) the nature and extent of the offender's assistance or promised assistance, (e) the timeliness of the assistance or undertaking to assist, (f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist, … (i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence." 41 It is clear that the provisions of s.23(1) and (2) distinguish between assistance that an offender has provided and an undertaking to provide assistance (both assistance in the prevention, detection or investigation of the offence concerned or any other offence and, as well, assistance or an undertaking to assist "in proceedings relation to …" the offence or any other offence). 42 It was common ground that the statement provided by the respondent dated 30 March 2006 to police constitutes "assistance" within the meaning of s.23 of the Crimes (Sentencing Procedure) Act. The issue is whether or not the respondent also undertook to further assist the Crown by having given an undertaking to assist in proceedings against his co-offenders.

(b) Submissions at the sentencing hearing on the question of assistance 43 Counsel for the respondent in his submissions on sentence adverted to the fact that:- "… normally that [referring to the issue of assistance] would be in the form of a letter to the Court and perhaps I'll let my friend explain where there isn't or just discuss that if there's anything she wishes to say … against what I'm submitting." 44 An observation was made during submissions that it may have been difficult for the sentencing judge to assess the assistance without a letter as to its value. Following counsel's reference to the fact that the respondent had given a statement to police, his Honour observed "I've got the statement that he's prepared to give". 45 The submissions for the respondent continued that it was "proposed", so far as counsel for the respondent was aware, that his client and his wife would be called as witnesses for the Crown. He, however, acknowledged that there was an issue in the statement (related to the matter as to whether a threat against the life of a victim was made by the respondent), which indicated that the respondent's statement was at variance with the victim's statement in that respect. Reference was made to this as indicating that the Crown may consider a potential difficulty in calling the respondent in the Crown case. 46 In reply, the Crown, in its submissions, stated:- "Finally in relation to the assistance, your Honour, the Crown has the statements from Mr Stavropoulos and his wife. Obviously, it's (sic) end up being a matter for the trial Crown as to whether this witness will be called. I imagine that the offender will be and as my friend conceded that the only issue that may come up is that the Crown obviously is (sic) concerning that it may not have been as full and frank as what we had wished for."

Analysis 47 Section 5DA of the Criminal Appeal Act 1912 provides, so far as is relevant:- "s.5DA Appeal by Crown against reduced sentence for assistance to authorities (1) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence imposed on a person that was reduced because the person undertook to assist law enforcement authorities if the person fails wholly or partly to fulfil the undertaking. (2) On an appeal the Court of Criminal Appeal may, if it is satisfied that the person has failed wholly or partly to fulfil the undertaking, vary the sentence and impose such sentence as it thinks fit." 48 The principles to be applied on an appeal under s.5DA of the Criminal Appeal Act have been stated in a number of cases, including Regina v O'Brien (NSWCCA, unreported, 10 June 1993), Regina v El-Sayed [2003] 57 NSWLR 659, Regina v Waqa (2004) 149 A Crim R 143, Regina v KS [2005] NSWCCA 87, Regina v Chaaban [2006] NSWCCA 352 and Regina v Douar [2007] NSWCCA 123. 49 In the latter case, James J, with whom Rothman and Harrison JJ agreed, extracted the following statements of principle from the relevant case law:-

• "The purpose of s.5DA is not punitive. The purpose is to enable this Court in an appropriate case, and to an appropriate extent, to intervene to adjust or correct a sentence where the sentencing process can be seen, with the benefit of hindsight, to have miscarried by reason of the circumstances set out in the section" ( O'Brien (supra) per Gleeson CJ at [12]).

• "If the assistance and, in particular, the evidence, is not forthcoming, the discount has been obtained on an expectation which has not been fulfilled and the basis for the reduced sentence is removed. It is in these circumstances that s.5DA allows a sentence to be varied to that which would have been imposed, subject always to the Court's discretion not to intervene where circumstances justify such a course …" ( Waqa (supra) at 147, [24], per Dunford J).

• "… s.5DA only authorises this Court to review the sentence where there has been a breach of an undertaking to provide the future assistance. In other words, where a discount has been allowed for the provision of past assistance and an undertaking to provide future assistance, and there is subsequently a breach of the undertaking to provide future assistance, this Court can adjust the sentence on account of the breach of that undertaking, but cannot interfere with that part of the reduction that has been allowed on account of the past assistance" ( Waqa (supra) at 147-148, [26], per Dunford J).

• "In the event that the contemplated assistance is not given, s.5DA provides a mechanism that allows the discount to be excised. It does not admit of reviewing the sentence generally …" ( Chaaban (supra) at [52], per Bell J).

• "The ability of the Crown to invoke the section is a very important part of the criminal justice system. Persons who give undertakings and who receive the benefit of those undertakings by way of a discounted sentence can, subject to exceptional circumstances, expect to have their sentences increased if they renege on their undertaking to give evidence. The departure from an undertaking of that kind is not to be regarded lightly and it will normally justify appellate intervention" ( KS (supra) at [19], per Wood CJ at CL). 50 The above dicta emphasise, as relevant to the present appeal, that it is necessary on an application under s.5DA for the Crown to establish:-

(a) that a relevant undertaking was given by the offender;

(b) a breach of such undertaking occurred by the offender's failure to provide the contemplated assistance.

(c) That in consequence, the sentencing process miscarried. 51 The expression "undertaking" is not defined in the Act. Its ordinary English meaning is to "take on (an obligation, duty, task etc); commit oneself to perform … give a formal promise or pledge …" (Shorter Oxford English Dictionary). 52 The sentencing judge referred to the requirement for him to consider the matters set out in s.23(2) following which he stated:- "… I have set out the statement of the offender and of the police in detail. In my view, it was of significant assistance to authorities …" (remarks on sentence, p.26) 53 His Honour then went on to deal with other issues germane to the sentencing task. 54 The sentencing judge, in due course, turned to the question of, what he termed "the appropriate discount" that should be given to the respondent "for plea in [sic - should read "and"] assistance" (remarks on sentence, p.26). His Honour then referred to the judgment of Howie J in Regina v Sukkar [2006] NSWCCA 92. In that context, his Honour stated (at p.26):- "… It is likely that the offender will be called as a Crown witness. In conformity with Sukkar's case, it was held in Regina v Maka (No 2) [2005] NSWCCA that a 'rolled up' discount for plea and assistance is appropriate. In my opinion, a discount for the plea and assistance of one-third from what would otherwise be appropriate as a head sentence is appropriate." 55 It is to be observed in relation to the above remarks on sentence that:-

(a) The sentencing judge expressly considered that the statement provided by police dated 30 March 2006 constituted "assistance" within the meaning of s.23 of the abovementioned Act.

(b) The statement was evaluated as being "of significant assistance to authorities" .

(c) So far as future assistance was concerned, the sentencing judge's references were confined to statements as to the respondent's preparedness to give evidence and the likelihood that he would be called as a Crown witness. There is, however, no reference in the remarks on sentence to an undertaking or to an obligation arising under an undertaking of the kind referred to in s.23 of the Act.

(d) By the time the sentencing hearing took place, the co-offenders had already been charged. 56 It is plainly desirable that any undertaking or promise for future assistance referred to in s.23 of the Act is framed with a degree of specificity. This is so, firstly, so that the nature and extent of any obligation arising under an undertaking may be identified and, secondly, to provide a proper basis for proceedings under s.5DA of the Criminal Appeal Act in which a question of breach of undertaking arises. 57 An undertaking to give evidence is commonly framed in the following terms:- "I, (NAME OF OFFENDER) hereby undertake to give evidence at any proceedings (including any appeal and re-trial) against (NAMED OFFENDERS) and for the offence of (SPECIFIED OFFENCE OR OFFENCES). AND I further undertake to give active co-operation, including the giving of evidence truthfully and frankly in accordance with the statement made by me on (SPECIFIED DATE), a copy of which is attached. AND everything that I have said in this statement is true and I have not withheld any information. I give this undertaking with the knowledge, consent and advice of my legal representative. … … (Witness)" 58 In the present case, as I have indicated, there was no record made of an undertaking or a promise of assistance setting out the terms or conditions said to apply to the same. 59 In relation to the statement of 30 March 2006, it has been correctly submitted on behalf of the respondent that there was no evidence that it was an induced statement and that the basis upon which it was given is stated in the following terms:- "1. This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true." 60 Accordingly, the position in the present matter is that:-

(a) There is no indication in the respondent's statement of 30 March 2006 of an undertaking by him that he would give evidence or that, if he were called to give evidence, it would be in the terms of his written statement.

(b) There is no evidence given by any witness on behalf of the Crown that the respondent, in fact, gave an undertaking as now claimed.

(c) There is no indication in the remarks on sentence either that an undertaking had been given within the meaning of s.23 of the Crimes (Sentencing Procedure) Act or that in determining the sentence, the sentencing judge determined the respondent's sentence upon the basis that some undertaking had been given by him within the terms of s.23.

(d) There was some uncertainty as to whether or not the Crown would call the respondent to give evidence at the hearing of proceedings against his co-offenders. However, the prospect that he would be called was spoken of in terms of it being "likely" .

(e) The evidence at its highest establishes that the respondent was prepared to give evidence, that there was an expectation of him being called to give evidence and of his stated willingness or preparedness to give evidence. 61 In oral submissions, the Crown contended that the Court could infer that an undertaking had been given as the discount given on sentence was, it submitted, something which "bespeaks" the giving of an undertaking. There are two points in relation to that submission. Firstly, a reading of the transcript of the sentencing hearing conveys that there was an expectation that the respondent would more than likely be called to give evidence at his co-offender's trial. An expectation, however, is not an undertaking within the meaning of s.23 of the Act. Secondly, whilst it is clear that the respondent had provided a measure of assistance in the form of his statement to police and prospectively indicated his preparedness to give evidence, the issue as to whether he was obligated to give evidence was not raised before the sentencing judge. If, in consequence, future assistance was overvalued, that has not, in this appeal, been pursued by way of a contention suggesting sentencing error. Accordingly, there is no requirement for this Court to deal with that question on this appeal. 62 In my opinion, the appeal must fail upon the basis that the evidence does not establish that the respondent bound himself, by way of a promise or undertaking, an essential matter for an application under s.5DA. 63 By reason of the conclusion that I have reached on the first issue identified in paragraph [34], it is unnecessary to consider the further issues including in particular, the contention as to breach of undertaking. 64 I, accordingly, am of the opinion that no basis has been established by the Crown which would warrant this Court re-sentencing the respondent. 65 Accordingly, I would propose that the appeal be dismissed. 66 PRICE J: I agree with Hall J. **********

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