Zreika v R

District Court of NSW|2023-03-14

Introduction

On 19 November 2021 Mohammed Zreika (the appellant) was found guilty of an offence of doing an act to pervert the course of justice contrary to s 319 Crimes Act 1900 by her Honour Magistrate Atkinson in the Local Court. The appellant brings an appeal as of right against the conviction.
The appellant is a solicitor. The prosecution case is that in a recorded telephone conversation on 28 June 2018, he advised his client to go to a doctor, to tell the doctor that he had gastroenteritis and to obtain a medical certificate to support the adjournment of a hearing listed for that day.
The appellant objected to the telephone intercept evidence being admitted into evidence, because it contained confidential communications between a solicitor and his client that attracted legal professional privilege.
The magistrate admitted the telephone intercept evidence pursuant to s 125 Evidence Act 1995, finding that there were reasonable grounds for finding that the communications were made in furtherance of the offence of perverting the course of justice.
The magistrate then relied on the same findings to find the appellant guilty of the offence.
The appellant relies on three grounds of appeal: 1. The magistrate misapplied s 125 Evidence Act 1995 and the telephone intercept evidence should have been excluded. 2. The magistrate erroneously applied her findings made on the balance of probabilities to admit the evidence, in finding the appellant guilty of the offence and failed to determine if the prosecution had proved its case beyond reasonable doubt. 3. The magistrate failed to consider if the prosecution had excluded reasonable alternate inferences that the appellant did not intend to pervert the course of justice.

Relevant Law

The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

The offence

Section 319 Crimes Act 1900 provides: A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.
Section 312 Crimes Act 1900 provides: A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

Admissibility of the telephone intercept evidence

Section 118 Evidence Act 1995 provides: Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of-- (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.
Section 117 Evidence Act 1995 relevantly provides: "confidential communication" means a communication made in such circumstances that, when it was made-- (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.
Section 125 Evidence Act 1995 provides: 125 LOSS OF CLIENT LEGAL PRIVILEGE: MISCONDUCT (1) This Division does not prevent the adducing of evidence of-- (a) a communication made or the contents of a document prepared by a client or lawyer (or both), or a party who is not represented in the proceeding by a lawyer, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty, or (b) a communication or the contents of a document that the client or lawyer (or both), or the party, knew or ought reasonably to have known was made or prepared in furtherance of a deliberate abuse of a power. (2) For the purposes of this section, if the commission of the fraud, offence or act, or the abuse of power, is a fact in issue and there are reasonable grounds for finding that-- (a) the fraud, offence or act, or the abuse of power, was committed, and (b) a communication was made or document prepared in furtherance of the commission of the fraud, offence or act or the abuse of power, the court may find that the communication was so made or the document so prepared. (3) In this section-- "power" means a power conferred by or under an Australian law.
Section 142 Evidence Act 1995 provides: (1) Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding-- (a) a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not, or (b) any other question arising under this Act, have been proved if it is satisfied that they have been proved on the balance of probabilities. (2) In determining whether it is so satisfied, the matters that the court must take into account include-- (a) the importance of the evidence in the proceeding, and (b) the gravity of the matters alleged in relation to the question.
In Director of Public Prosecutions (NSW) v Zreika [2020] NSWSC 381, Simpson AJ said in a previous appeal relating to this case at [36]: What s 125(2) required (for the purposes of this case) was an evaluation of the evidence said to provide the basis for a conclusion that there were reasonable grounds for finding that the communications in question were made in furtherance of the s 319 offences.
Simpson AJ went on to say that was not to decide as a matter of fact, if the communications were made in the furtherance of the offences. Although not necessary to decide, Simpson AJ also found that the magistrate: 1. took into account irrelevant considerations, such as that Magistrate Ryan was entitled to adjourn the proceedings as she did; and 2. failed to take into account relevant considerations, including that: 1. the client gave a false history to Dr Yu; 2. Dr Yu's diagnosis was based on that false history; 3. evidence of an intercepted call between the client and a female demonstrated that the client did not have gastroenteritis; and 4. evidence in the intercepted calls demonstrated that the appellant knew that the client did not have gastroenteritis.
In Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72 at [117]-[118], the Court of Criminal Appeal stated: 117 It can be accepted that the reference to "reasonable grounds" in s 125(2) encompasses proof of the relevant facts to a standard less than the balance of probabilities so as to warrant the loss of privilege (see Kang v Kwan & 2 Ors [2001] NSWSC 698 at [37] points 6 and 7 per Santow J citing Propend at 587 per McHugh J; "Kang v Kwan"). However, the Court was not referred to any case where s 125(2) was satisfied where there was some doubt as a matter of law whether the facts alleged, if demonstrated to the relevant standard, amounted to fraud, commission of offence etc. Thus, for example in Zemanek v Commonwealth Bank of Australia (Federal Court of Australia, Hill J, 2 October 1997, unreported at 13), Hill J observed in relation to s 125(2) that "[s]uch conduct, if ultimately established, would amount to fraud" (at 13). In Kang v Kwan, Santow J referred to a "clear abuse of process" (at [44]). 118 Proof to a lesser standard of facts that amount to fraud is one thing; whether as a matter of law those asserted facts amount to a fraud is another. Section 125(2) is directed to whether the fraud, commission of offence etc is a "fact in issue". It is not concerned with whether the law is in issue. Nothing in any of the ALRC Reports or any of the relevant authorities supports the suggestion that it is sufficient that the relevant facts, if established, only arguably amount to fraud or the commission of an offence. Instead those facts, if established, must constitute fraud, an offence, an act rendering a person liable to a civil penalty or a deliberate abuse of power. To hold that advice or litigation privilege is lost in circumstances where the relevant facts are not in issue, but a party asserts but declines to fully argue that those facts establish a fraud, an offence, an act rendering a person liable to a civil penalty or a deliberate abuse of power, would represent far too low a threshold for the loss of privilege.

Analysis of the Magistrate's Reasons

The magistrate commenced by reciting the procedural history of the matter and referring to the evidence, noting that the appellant did not give evidence in his own case. She stated that the admissibility of the telephone intercept evidence was still in issue, that the s 125 threshold issue required her to make a finding on the balance of probabilities, and that if the evidence was admissible she was required to consider the evidence to determine if the offence was proved, beyond reasonable doubt.
The magistrate set out that the case against the appellant was particularised at T2 (19/11/21) lines 13-15 as follows: That Mohammed Zreika on 28 June 2018 did provide Michael Izod with a medical condition to provide to a doctor, intending thereby to pervert the course of justice.
The magistrate directed herself that she needed to be satisfied of the elements of the offence beyond reasonable doubt and that the onus was on the prosecution to prove them to the requisite standard. She noted that the appellant did not give evidence and that she could not draw any adverse inference against him for not doing so.
The magistrate then set out the evidence chronologically. This included reference to other intercepted calls between the client and two third parties, a male and a female. The evidence contained in those calls was not tendered against the appellant. The relevant evidence against the appellant is set out in [10], [11], [14] and [15] above.
The magistrate then set out Simpson AJ's statements from the appeal judgment at [36] and [44]-[45].
After referring to the evidence, the magistrate stated at T10 (19/11/21) lines 38-43: So it is the interrelationship, if you like, it is the conspiracy that the prosecution alleged. And what was put at first instance and has not been changed between the two of them, meeting of the minds come up with a false diagnosis to effectively lure the Court into a misleading (sic) and accordingly grant the adjournment.
I pause to note that those arguments were not put by the prosecution against the appellant in the Local Court.
In considering the case against the appellant, the magistrate found that at the beginning of the intercepted telephone conversation whilst the client told the appellant that he was feeling "shithouse", he did not say that he was feeling unwell. The client told the appellant that he had "crashed out last night" and had not prepared for court in the way he was asked to. The client told the appellant that he had been able to get medical certificates in the past on the basis of anxiety and depression but did not make any mention of symptoms that he was experiencing. The magistrate found that the client gave a false history to Dr Yu and obtained the medical certificate stating that he was suffering from gastroenteritis after gastroenteritis and diarrhoea were mentioned to him by the appellant in the course of the intercepted telephone conversation. The magistrate found that the client was not sick or suffering from gastroenteritis, but rather he was not ready for court and wanted the case adjourned.
The magistrate did not accept that all the appellant was doing was explaining to the client what was required in obtaining a medical certificate. Her reasoning for this finding is not apparent in the judgment.
Whilst the magistrate noted that she was required to consider the evidence tendered against the client and the appellant separately, the judgment was structured as a chronological recitation of the facts, with conclusions expressed against both accused as being based on the "whole of the evidence". It not apparent from the judgment that the magistrate actually considered only the evidence against the appellant in coming to the conclusion on either the s 125 issue, or his guilt.
The magistrate concluded at T12 (19/11/21) line 47 - T13 line 6: When all of this evidence is considered, I am satisfied that there are reasonable grounds to find that the communications in question was made in furtherance of the s 319 offence. In relation to Mr Zreika, the communication was made in furtherance of the commission of the fraud act (sic) or offence or the abuse of power. Mr Zreika provided Mr Izod with a medical condition to provide to the doctor, intending thereby to pervert the course of justice to get an adjournment; and then also in relation to Mr Izod, the equivalent findings. Given my findings, it follows that client legal privilege has been lost and the evidence can be adduced about the communication between Mr Zreika and Mr Izod.
I pause to note that the magistrate's reasoning on the critical issue amounted to no more than a restatement of the words of s 125(2) that the communication was made in furtherance of the offence. The magistrate did not state any reasons for deciding that the words spoken by the appellant were a provision of a medical condition to the client as to what to tell the doctor or how the words spoken demonstrated an intention to pervert the course of justice.
The magistrate continued at T13 line 6- T13 line 25: Based on what was submitted on the last occasion, I can now take that evidence from the voir dire and use it to consider whether or not the prosecution has proved its case beyond reasonable doubt. I will not repeat what I have discussed in relation to the application of s 125, but I adopt those reasons when considering whether the charges have been proven beyond reasonable doubt. Mr Zrieka clearly [did an act] when he communicated with Mr Izod before court and suggested an illness to Mr Izod that might have been used to obtain a medical certificate, noting that, "You can't really attend if you've got shit in your pants". The only inference available is that Mr Zreika did so with the intent to pervert the course of justice. He knew that Mr Izod was going to get a medical certificate and that he would then use it to argue before the magistrate that the case should be adjourned. This was obstructing the administration of the law, namely the administration of the criminal law by Magistrate Ryan at Manly Court on 28 June 2018. Accordingly, I find that the prosecution has proven its case beyond reasonable doubt against Mr Zreika.
This passage discloses two relevant errors. First, the magistrate's finding was that the suggestion of gastroenteritis by the appellant was an illness that might have been used by the client to obtain a medical certificate. It follows that the client might not have used that condition to obtain the medical certificate. This finding is inconsistent with the particularised prosecution case that at the time of the intercepted telephone call that the appellant suggested gastroenteritis to the client with the intention that it would be used by the client to obtain a false medical certificate. The finding that the client might use the medical condition raises a doubt in relation to the appellant's intention to pervert the course of justice at the time of the telephone call. Second, the magistrate stated that the only available inference was that the appellant had the requisite intention to pervert the course of justice and accordingly she did not consider if there was any other reasonable hypothesis consistent with innocence. If there was a reasonable hypothesis consistent with innocence the magistrate was required to exclude it beyond reasonable doubt before she could convict the appellant.

Ground 1

In the Local Court, the prosecutor submitted that the effect of Simpson AJ's decision was that s 125(2) was enlivened and therefore that the privilege had been lost. As a result, the prosecutor did not formulate any argument to demonstrate how, on the balance of probabilities (and applying s 142 Evidence Act 1995), there were reasonable grounds for finding that the communications in the intercepted telephone call were made in furtherance of the offence.
Acting Justice Simpson's decision did not stand for the proposition put by the prosecutor in the Local Court. Rather, her Honour decided that what was required was an evaluation of the facts to determine if there were reasonable grounds for finding that the communications were made in furtherance of the s 319 offence.
I am not satisfied that the magistrate accepted this erroneous submission, because it did appear that she tried to engage in the evaluative judgment required. However, I am satisfied that the magistrate made a number of errors in her reasoning on the s 125 threshold issue. First, she referred to concepts of conspiracy and joint criminal enterprise that were not relied on by the prosecutor in the Local Court. Second, her reasons for deciding that the privilege was lost failed to differentiate between the evidence tendered against the client and the appellant, notwithstanding that she accepted the need to do so. Third, the magistrate did not provide reasons as to why she was satisfied that the communications were made in furtherance of the offence, other than to restate the assertion that they were.
On the appeal, the prosecution submitted the following in relation to the s 125 threshold issue: 1. the appellant was a party to getting an adjournment that he knew his client was not entitled to because it was sought on a false premise, ie that the client was unfit to attend court due to gastroenteritis. 2. The appellant knew that the client was not sick because: 1. the client was well when the appellant met with him on the day before; 2. the client told the appellant that he wanted an adjournment because he had "crashed out" the night before and not attended to the preparation required of him; 3. the client did not say in the text message or during the call that he was sick or suffering from symptoms. 1. The appellant suggested gastroenteritis because it was a condition that was more likely to satisfy the magistrate that the client was unfit to attend court. 2. The appellant suggested gastroenteritis because he believed that it was more likely to justify an adjournment than the conditions of anxiety and depression suggested by the client.
It was accepted on behalf of the appellant that the test provided for by s 125(2) was objective and that the prosecution case could be taken at its highest in determining if there were reasonable grounds.
Taking into account the evidence tendered against the appellant, I am satisfied that the telephone intercept material was admissible for the reasons that follow.
I am satisfied on the balance of probabilities that there are reasonable grounds for finding that there was a prima facie case that the offence had been committed and that the communication was made in furtherance of the offence. At 6.48am in the text message, the client told the appellant that he was not ready to proceed with the hearing on 28 June 2018. The client did not expressly tell the appellant that he was sick or suffering any symptoms that would make him unfit to attend court. An inference is available that the appellant knew that the client was not sick. The appellant suggested gastroenteritis and diarrhoea as conditions that would make a person unfit for court. Following the telephone call with the appellant, the client attended a doctor and obtained a medical certificate certifying him unfit to attend court because he was suffering from gastroenteritis. This was consistent with the client doing what he was told to do by the appellant. Conversely, the appellant was entitled to take into account that the client had been issued the medical certificate by a doctor certifying that he was suffering from gastroenteritis. The appellant was aware of the content of the medical certificate when he tendered it and relied on it to apply for an adjournment. The appellant knew what he had told the client in the intercepted telephone call and that the client had not mentioned suffering from gastroenteritis or any symptoms of that condition. The appellant knew that the magistrate relied on the condition of gastroenteritis specified in the medical certificate to find that the client was unfit to attend court and to adjourn the proceedings.
For these reasons, ground 1 fails and I am satisfied that the telephone intercept evidence should be admitted.

Grounds 2 & 3

These grounds overlap and can be conveniently considered together.
The magistrate engaged in very scant reasoning for accepting that the telephone intercept evidence was sufficient to prove the elements of the offence beyond reasonable doubt.
As set out at [45] above, she "adopted" her reasons for finding that the s 125 threshold had been met, when considering if the elements of the offence were proven beyond reasonable doubt. This included two findings that were critical to a finding of guilt, that: 1. the magistrate did not accept that the appellant was explaining what was required in a medical certificate; and 2. the appellant provided the client with a medical condition, intending thereby to pervert the course of justice.
To that point, those matters had only been found to establish that there were reasonable grounds for finding that the offence had been committed. No further analysis was undertaken and no further reasons were given to establish those matters beyond reasonable doubt.
Further, the initial finding as to the s 125(2) threshold issue was partly based on evidence that was not tendered against the appellant and failed to consider the evidence of Dr Yu.
Finally, the magistrate decided that the only inference available was that the appellant said the words to the client with the intent to pervert the course of justice. Put simply, the magistrate did not consider any other inference that arose on the evidence.
Taking into account the evidence tendered against the appellant, I am not satisfied beyond reasonable doubt that the appellant is guilty of the offence for the reasons that follow.
In the 6.48am text message, the client raised obtaining a medical certificate to be relied on for the purpose of getting an adjournment. In context and reading that message as a whole, it was reasonably possible that the client had "crashed out" and not attended to his assigned tasks because he was not feeling well.
It was also reasonably possible that the client's reference to going "shithouse" at the beginning of the telephone call was a reference to feeling unwell. The appellant was not privy to the other intercepted telephone calls where the client told others that he was not sick.
The intercepted call commenced with the appellant giving appropriate advice on the content of the required medical certificate; in particular; that it needed to be obtained as soon as possible, to state that the client was unfit to attend court and to state what the condition was that the client was suffering from. The prosecution submitted that there was sinister intent on the appellant's insistence to have the doctor include his diagnosis in the medical certificate. I do not accept that submission. Recent changes to privacy laws have resulted in a practice of doctors not disclosing medical conditions in medical certificates. In a forensic setting, this makes it very difficult to assess if a person is unfit to attend court. The appellant's advice to have the doctor include the diagnosis was sound and more likely to make the evidence persuasive on the adjournment application.
The client then stated that he had obtained medical certificates in the past for mental illness, which he described as "depression and anxiety". Contrary to the prosecution submission, this was some evidence that the client was suffering from a condition that may have made him unfit to attend court and may have been a proper basis to obtain a medical certificate.
It is reasonably possible that the suggestion of gastroenteritis and diarrhoea and practicality of attending court with diarrhoea was a ham-fisted attempt by the appellant to give an example by which the client could understand his legal advice, that the content of the certificate needed to convey why the client was unfit to attend court, rather than just state that as a conclusion without foundation. This is supported by the appellant repeating the importance in the call of the client telling him what the diagnosis was as soon as he saw the doctor and having it referred to in the certificate. From these statements in the call, it is reasonably open to infer that the basis on which the client was to obtain the medical certificate was a matter between him and the doctor and that the appellant did not intend to provide a condition to the client that would be used by him to obtain a medical certificate from the doctor.
I have also taken into account that the appellant is a person of good character and this made it less likely for him to have the requisite intention to commit the offence.

Orders

The orders I make are as follows: 1. Appeal allowed. 2. I set aside the conviction and the penalty imposed by the magistrate.

Amendments 26 April 2023 - Publication restriction lifted. 01 May 2023 - Junior counsel included as representative of the appellant. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2023

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (8)