Clarkson v R - [2007] NSWCCA 70

No judgment structure available for this case.

Appeal Outcome: Special leave refused by the High Court - 11 December 2007

New South Wales

Court of Criminal Appeal

CITATION: Clarkson v Regina [2007] NSWCCA 70
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 12 February 2007

JUDGMENT DATE:
22 March 2007

JUDGMENT OF: Beazley JA at 1; Sully J at 252; Howie J at 253

DECISION: 1. Appeal against conviction dismissed;; 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed.

CATCHWORDS: Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists

LEGISLATION CITED: Crimes Act 1914 (Cth) Pt IB Div 6; ss 16, 16G, 20B, 20BA, 428E(1)(b)
Crimes Act 1900 (NSW) s 184
Crimes Act 1928 (Vic) s 426
Crimes Act 1958 (Vic) s 393
Crimes (Administration of Sentences) Act 1999 (NSW) s 265
Criminal Code Act 1995 (Cth)
Criminal Appeal Act 1912 (NSW) s 5A
Criminal Code (WA) s 631
Criminal Lunatics Act 1800 (UK)
Criminal Procedure Act 1986 (NSW) s 21(2), 29
Evidence Act 1995 (NSW) s 98, 101(2), 108
Jury Act 1977 (NSW) s 22
Mental Health Act 1990 (NSW) s 3, 4, 10
Mental Health (Criminal Procedure) Act 1990 (NSW) Pt 2; ss 5, 6, 7, 8, 10, 11, 14, 16, 17, 18, 22 Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW)
Passports Act 1938 (Cth) ss 10(1)(a), (b)
Police Act 1990 (NSW) s 204
Representation of the People Act 1949 (12, 13 and 14 Geo 6, c.68) s 47(2)
Voters Act (UK) s 2
Road Transport (Driver Licensing) Act 1998 (NSW) s 22

CASES CITED: Constitution of Australia s 80
Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36
Butler v Attorney General for the State of Victoria (1961) 106 CLR 268
Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29
Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62
Johnson v The Queen (2004) 78 ALJR 616
Kesavarajah v The Queen (1994) 181 CLR 230
gatayi v The Queen (1980) 147 CLR 1
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
R v Abusafiah (1991) 24 NSWLR 531
R v Bezan (2004) 147 A Crim R 430
R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319
R v Hurley and Murray [1967] VR 526
R v Loughnan [1981] VR 443
R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
R v Mostyn (2004) 145 A Crim R 304
R v Presser [1958] VR 45
R v Pritchard (1836) 173 ER 135
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
R v Rogers (1996) 86 A Crim R 542
R v Sexton (2000) 116 A Crim R 173; [2000] SASC 276
R v Studenikin (2004) 60 NSWLR 1
R v Todd [1982] 2 NSWLR 517
Re Jayden [2007] NSWCA 35
Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28
Verma v R (1987) 30 A Crim R 441
Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

PARTIES: Mark Alfred Clarkson (Appellant)
Regina (Commonwealth) (First Respondent)
Regina (New South Wales) (Second Respondent)

FILE NUMBER(S): CCA 2006/1693

COUNSEL: In person (Appellant)
P Roberts SC; L Crowley (Regina)

SOLICITORS: Commonwealth Director of Public Prosecutions (Regina)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/11/0900; 02/11/1109

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 26 November 2004

- 86 -

2006/1693

BEAZLEY JA
SULLY J
HOWIE J

22 March 2007

MARK ALFRED CLARKSON v REGINA

Judgment

1 BEAZLEY JA: On 26 November 2004, the appellant was found guilty by a jury of a total of 16 offences, being 5 offences contrary to s 10(1)(a) of the Passports Act 1938 (Cth) (the Passports Act); 7 offences contrary to s 10(1)(b) of the Passports Act; and 4 offences contrary to s 184 of the Crimes Act 1900 (NSW) (the Crimes Act). On 11 April 2005, the appellant was sentenced by his Honour Judge Hosking DCJ to a total period of imprisonment of 2 years and 4 months to commence on 26 November 2004, with the appellant to be released on 25 March 2007.

2 The appellant appeals against conviction and seeks leave to appeal against sentence. The appeal and the application for leave to appeal against sentence were heard at the same time as an application for an order in the nature of certiorari and for orders to quash the convictions and sentences and the warrants signed by Hosking DCJ requiring imprisonment, as well as an order for the issue of a writ of habeas corpus (the prerogative writ application). The prerogative writ application was referred to the Supreme Court by an order of Adams J on 4 December 2006. That application has become matter no CA 40803/06 in the Court of Appeal.

3 In addition, there is before the Court of Appeal in proceedings CA 40803/06 a case in which Hosking DCJ stated eight questions of law for the determination of the Court. There is also application for an Order to Show Cause on remitter from the High Court of Australia pursuant to an order Gummow J made on 14 February 2007. That application, which has been merged with matter no CA 40803/06, raises the same issues as those raised on the stated case.

4 The appellant’s Notice of Appeal and Application for Leave to Appeal in the Court of Criminal Appeal contained, in total, 48 grounds. Many of these grounds overlap or are repetitive. The stated case comprises eight questions, all of which are to be found in the grounds of appeal. The appellant filed 114 pages of written submissions in support of the appeal and other applications, as well as a number of supplementary submissions and submissions in reply to the Crown submissions. Again, many of the submissions are repetitive. The appellant also made oral submissions.

5 Notwithstanding the overlap and repetition, a number of issues clearly emerged and these were in effect identified by the appellant in his oral submissions. Accordingly, I propose to deal with the matters that were argued orally in the order in which they were advanced by the appellant. I will then deal with any outstanding issues which emerge from the grounds of appeal and which the appellant did not argue orally. The appellant, in his oral submissions, invited the Court to deal with the criminal appeal first, before determination of the questions raised in the stated case and his application for prerogative relief. This course, to which the Crown agreed, was appropriate, as the questions raised in the stated case were entirely covered by the grounds of appeal against conviction, and the outcome of the stated case is dependent upon one of the major issues on the appeal. Because of the cross-over of issues in the two sets of proceedings, this judgment and the judgment of the Court of Appeal in proceedings CA 40803/06 should be read together.

Issue 1: the s 10(1)(b) offences – the third party applications: counts 1 to 4 and 10 to 12: grounds 28 and 29

6 The appellant was charged with seven offences under s 10(1)(b) of the Passports Act. Four of those offences were committed prior to 26 May 2001, at which time s 10(1)(b) provided:

“10(1) A person shall not knowingly or recklessly make any false or misleading statement, whether orally or in writing:

(b) in support of an application by another person for an Australian passport or for a renewal or endorsement of an Australian passport.”

7 Section 10(1)(b) was amended on 26 May 2001 as part of the harmonisation with the Criminal CodeAct 1995 (Cth) (the Criminal Code). In its amended form it provided:

…

(b) in the course of supporting an application by another person for an Australian passport or for a renewal or endorsement of an Australian passport.”

8 The maximum penalty for an offence committed under s 10(1)(b) is $5,000 or imprisonment for 2 years.

9 The Crown case in respect of the s 10(1)(b) offences was that, in respect of each offence, the appellant made a false statement in an application for a passport to be issued to another person. The false statement was that the appellant stated on the application form that he had known the person in whose name the application was made for a particular period of time. The persons named on the applications for passports subject of counts 1 to 4 were Virginia Yan (count 1), Kristina Jana Nievens (count 2), Alexanders Ivars Elmas (count 3) and Porsche Francis Lee (count 4). The “identifier” of the applicant on each application was Mark A Clarkson of 10/189 Liverpool Street, Sydney. The individual details in respect of counts 1 to 4 were as follows.

10 Count 1: on 4 April 2000, an application for a passport in the name of Virginia Yan was lodged at Kensington Post Office. It was supported by a birth certificate purportedly issued by the New South Wales Registry of Births, Deaths and Marriages, in the name of Virginia Yan. The birth certificate was false. No such official birth certificate had ever been issued and the details on it were false.

11 Count 2: on 6 April 2001, an application for a passport in the name of Kristina Jana Nievens was lodged at the Broadway Post Office. It, too, was accompanied by a New South Wales birth certificate which had never been issued by the Registry of Births, Deaths and Marriages and the information on which was false. One of the telephone numbers specified on the application was subscribed to by the appellant. The address on the application was a Post Office Box at which during a subsequent search an envelope, addressed to the appellant at that address, was located.

12 Count 3: on 29 May 2000, an application for a passport in the name of Alexanders Ivars Elmas was lodged at the Broadway Post Office. That application was supported by a birth certificate purportedly issued in Victoria, which had never been issued and which recorded false information. The address given for the applicant on the passport application was 4/375 Crown Street, Surry Hills. That address was a Post Office Box, which was rented in the name of Thomas Lacplesis of 10/189 Liverpool Street, Sydney. Thomas Lacplesis was the name used by the appellant in one of the applications which is the subject of one of the offences under s 10(1)(a) of the Passports Act.

13 Count 4: on 7 June 2000, an application for a passport in the name of Porsche Francis Lee was lodged at the Bondi Junction Post Office. It was supported by a birth certificate purportedly issued in Victoria, which had not been issued by the Victorian Registry of Births, Deaths and Marriages and which recorded false information. The appellant, as the identifier of the applicant on this application, gave a telephone number which was subscribed to by a Janis Perkons of 35/63 MacPherson Street, Waverley. This was the address that the applicant Lee nominated as his address on the application. It was also the address that the appellant gave in the applications for passport that he made which are the subject of counts 6 and 7.

14 Counts 1 to 4 were committed prior to the harmonisation of the Passports Act with the Criminal Code on 26 May 2001.

15 The offences alleged in counts 10 to 12 contained the same false statement as in counts 1 to 4, that is, a statement by the appellant that he had known the applicants for a particular period of time. The details of the false statements were as follows:

16 Count 10: on 15 January 2001, an application for a passport in the name of Peter Johan Tango was lodged at the Bondi Junction Plaza Retail Post Office. It was supported by a Victorian birth certificate. The appellant was the applicant’s identifier. He specified his address as 10/189 Liverpool Street, Sydney, being the address he nominated on counts 1 to 4.

17 Count 11: on 5 October 2001, an application for a passport in the name of Roman Stinkovoy was lodged at the Camperdown Business Centre Post Office. It was supported by a South Australian birth certificate. The appellant was named as the emergency contact, with a given address of 10/189 Liverpool Street, Sydney. The person who signed as identifier was Jason Edward Papps, which was the name used by the appellant on the passport application the subject of count 9.

18 Count 12: on 4 December 2001, an application for a passport in the name of Jason Eris was lodged at the Punchbowl Licensed Post Office. It was supported by a South Australian birth certificate. The emergency contact and identifier was listed as Stewart Barton. The passport number given for Stewart Barton was the passport number issued pursuant to the matter which is the subject of count 7.

19 The appellant’s essential submission in respect of these offences was that the Crown case was fundamentally flawed, in that it had equated the existence of false birth certificates with the appellant having made a false statement. He said that this error was apparent in the Crown’s opening to the jury where senior counsel for the Crown explained that the appellant had signed the application of, for example, Virginia Yan, (count 1) stating he had known that person for the specified period. It was the Crown case that that was a false statement because a person with those details, that is Virginia Yan, born on the date stated in the application, did not exist. (Appeal book 226) Later, in the opening, Crown counsel summarised the case in respect of the third party applications in these terms:

“… essentially, the allegation in respect of these counts 1 to 4 and count 10 is that the accused made a false statement and the false statement was that he had known the applicant for a particular amount of time and the allegation is that he knew that that was a false statement because no such person with those birth details in fact existed.

20 The Crown’s separate reference to counts 11 and 12 was to explain that, notwithstanding the change in the wording of the section, which was due to the harmonisation of the Passports Act with the Criminal Code, the offences were essentially the same. (Appeal book 230-231)

21 Counsel for the appellant at trial applied to have the indictments in respect of the s 10(1)(b) offences quashed. The trial judge rejected the application. His Honour held that what the Crown was seeking to do was to:

“… say to the jury that they would be satisfied … that there was no person with the given name of [for example] Virginia Yan born on a particular day specified in a falsified birth certificate in Victoria, and that if the jury is satisfied of that fact beyond reasonable doubt, it follows inevitably that in claiming as alleged that [the appellant] knew that person for a period of 5 years and 6 months that that statement must have been a false statement.” (Appeal book 339)

22 The Crown repeated the basis of the case it sought to make under these counts in the closing address to the jury, namely, that the offences had been proved because “no such person with those birth details in fact existed” and his Honour repeated the basis upon which the Crown advanced its case on these counts in his summing-up to the jury.

23 The Crown had relied upon coincidence evidence to prove these charges. It had given notice in writing as required by s 98 of the Evidence Act 1995 (NSW). I have already referred to some of the coincidences in the evidence. In addition, there was evidence that in relation to the birth certificates purportedly issued by the Victorian Registry of Births, Deaths and Marriages, the birth certificate number was not a number format used by that Registry (Appeal book 856). Likewise, in respect of the birth certificates purportedly issued by the Births, Deaths and Marriages Registration Office of South Australia, the evidence was that the number format was not used by that Registration Office (Appeal book 858). In the case of the false New South Wales birth certificates, there was evidence that the registration number shown on the certificate was not a registration number that related to persons by the name of Yan or Nievens (Appeal book 854-855).

24 There was also the coincidence of the use of telephone numbers. For example, in the case of the application in the name of Nievens, the emergency contact was listed as Mark Clarkson of 10/198 Liverpool Street, Sydney, and one of the telephone numbers, namely, 9571 8295, was used in respect of all the passport applications, including those made by the appellant himself, being the subject of counts 5 to 9: s 10(1)(a) offences (Appeal book 855).

25 There was also expert handwriting evidence. The expert document examiner used the passport application form in the name of Lacplesis (count 5) as the base document for his assessment. The expert handwriting evidence established that all of the handwriting on the Lacplesis passport application, except for the “Official Use Only” section, was written by one person. It also established that the author of the Lacplesis passport application was the author of the Clarke, Hardy and Papps applications (Appeal book 859).

26 The expert handwriting evidence further established that the author of the passport application in the name of Lacplesis was the author of the applications for passports in the names of Elmas, Tango, Stinkovoy and Eris, being the offences subject of counts 3, 10, 11 and 12 respectively, as well as being the person who completed the identifier section in the Yan, Nievens and Lee applications, being the subject of counts 1, 2 and 4 respectively.

27 It followed from this evidence that, if accepted, the only inference to be drawn was that the handwriting on the passport application subject of counts 3, 10, 11 and 12 was the appellant’s, and that it was the same handwriting on the identifier section of the applications subject of counts 1, 2 and 4 and thus, the handwriting of the appellant.

28 The appellant’s case on this issue, both at trial and on appeal, is straightforward. He says that the fact that there were false birth certificates is not conclusive as to whether the appellant had made a false statement contrary to s 10(1)(b). He gave evidence that he knew the persons concerned under those names and had known them for some time (Book 3 p 77). The appellant’s counsel addressed the jury to that effect. For example, in relation to the application in the name of Ms Yan, he reminded the jury of the appellant’s evidence that Ms Yan had travelled under that name, and on that passport, overseas. The appellant also gave evidence that he had visited the person he knew as Ms Yan, at the Villawood Detention Centre, where she was detained under that name.

29 Counsel for the appellant also pointed out to the jury that, in the case of Ms Nievens, that there was no specific evidence, for example, that she was not in Australia for at least 5 years and 8 months, nor was there evidence as to how long she had called herself Kristina Nievens. Counsel also drew attention to differences in handwriting and the like on the application forms as being indicative of its authenticity.

30 Senior counsel for the Crown conceded that if there had only been one offence involved under s 10(1)(b), it may have been difficult for the Crown to have proved its case. However, when regard was had to the coincidence evidence, the Crown case was not merely that the existence of a false birth certificate established that the appellant had made a false statement. Rather, the coincidence evidence established that the appellant knew that the name on the birth certificate was false, so that he could not have known a person by that name for the stated period of time. Accordingly, there was evidence to support the elements of the offence and the jury had accepted beyond reasonable doubt that the offences had been established.

31 Thus far, I have dealt with this issue on the basis upon which it was argued orally by the appellant.

32 The written submissions in support of these issues had a different focus. That different focus is reflected in the formulation of the grounds themselves. The grounds were expressed in these terms:

“28. That the learned Trial Judge erred in law and fact in not discharging the Jury on the Defence Application made after the Crown changed several times the particulars of the False Statement alleged in the Counts preferred pursuant to the Passports Act 1938 [Cth] (Counts 1-12).

Passports Act

33 The appellant argued that the Crown opened to the jury in different terms to the particulars of the charge previously provided to the appellant and then over successive days changed the particulars of the charge. In my opinion, this argument is not correct. Although the Crown did provide particulars in a somewhat expanded form, they were not different in substance. Accordingly, there was no basis for the discharge of the jury as claimed by the appellant.

34 The appellant also complains that he may have been convicted:

“… by the Jury finding that the Appellant did not know them by the name they used to apply for the Passport or that he did not know them for the stated period of time or both (but which).” (Appellant’s submissions 28.7)

35 The other submissions in support of grounds 28 and 29 are further explications of this central point. To demonstrate this, the appellant made the point that he had known, for example, a Virginia Yan and that it was subsequently ascertained that a person by the name of Kristina Nievens was known to the Commonwealth.

36 However, the Crown case was based on the non-existence of persons named in the passport applications. This has been explained in some detail above.

37 Accordingly, these arguments should also be dismissed.

38 In my opinion, when regard is had to the coincidence evidence, there was sufficient evidence, if accepted by the jury, to establish the elements of these offences. It follows that grounds 28 and 29 should be rejected.

Issue 2: s 184 offences: applications for driver licences in false names: counts 13 to 16; grounds 26 and 27

39 Counts 13 to 16 of the indictment alleged that on dates between 13 and 28 June 2000, the appellant pretended to be a named person: namely, Matthew John Clarke – count 13; Thomas Lacplesis – count 14; Michael John Hardy – count 15; and Jason Papps – count 16; with intent to fraudulently obtain property, being a New South Wales driver licence, contrary to the provisions of s 184 of the Crimes Act.

40 Section 184 of the Crimes Act provides:

“Whosoever falsely personates, or pretends to be, some other person, with intent fraudulently to obtain any property, shall be liable to imprisonment for seven years.”

41 The maximum penalty for an offence under s 184 is a term of imprisonment of 7 years.

42 The formal grounds of appeal that relate to this issue were in these terms:

“26. That the learned Trial Judge erred in law and fact in not finding that there was no case to answer in relation to the False Personation Counts (Counts 13-16) in the Indictment and in not directing the Jury to acquit the Appellant on these counts on the Defence application made at the end of the Crown case.”

43 The appellant’s defence to these grounds was that it is not an offence for the purposes of s 184 to merely apply for a licence in the name of an alias. He contends that when the trial judge rejected his “no case” submission and when directing the jury, in respect of these counts, his Honour erred in law as to the elements of the offence.

44 The evidence in respect of these four charges was that, on the occasions specified in the indictments, the appellant presented himself at a motor registry and applied for a learner driver licence. He filled out an application form in each of the names of Clarke, Lacplesis, Hardy and Papps. The appellant provided a false birth certificate, purportedly issued by the Victorian Registry of Births, Deaths and Marriages in support of each application. Evidence was given that there was no registration of birth in any of the four names and that the birth certificate number on the respective birth certificates was not a number format used by the Victorian Registry. (Appeal book 851)

45 The appellant’s contention is that to be guilty of the offence of ‘fraudulent personation’, the Crown must prove that the person impersonated is an actual person, or at least was once a living person, and not a fictitious person. The appellant had not tried to personate or pretend to be an actual person, but, rather, was adopting an alias when making the applications for the learner driver licence.

46 Following the close of the Crown case, counsel for the appellant at trial applied to his Honour for a verdict by direction on these counts, on the basis that on the evidence, a prima facie case had not been made out. (Appeal book 569)

47 In his judgment on the ‘no case’ application, the trial judge, having observed that although s 184 had been part of the Crimes Act since its inception, it had not been the subject of any reported decision. His Honour reviewed a body of English authority dealing with personation charges and observed that unless the particular offence referred to a fictitious person: see, for example, the Representation of the People Act 1949 (12, 13 and 14 Geo 6, c.68); s 47(2), it appeared that “ordinarily, personation is limited to the impersonation of someone by a real person living or dead”. (Appeal book 572) That, of course, was the appellant’s point. He claimed that he had not purported to do so. Rather, he was using an alias.

48 His Honour also referred to modern Australian examples of the offence of personation which restricted the offence to the impersonation of a real person, sometimes to a person of a particular class. He referred to s 204 of the Police Act 1990 (NSW) (now repealed), which provided that it was an offence to impersonate a police officer and s 265 of the Crimes (Administration of Sentences) Act 1999 (NSW) which provides that it is an offence to impersonate a correctional officer.

49 His Honour observed, however, that s 184 of the Crimes Act was in different terms to the offences created by the legislation to which he had referred. Under s 184, the offence was not only falsely personate some other person. Rather, there was an alternative charge provided for in the section, namely, where a person “pretends to be some other person”. His Honour considered that the additional words in s 184 must have been intended to serve a purpose and were not included simply as an alternative way of describing the offence of false personation. His Honour considered that the additional words had a similar effect to the provisions of s 2 of the Voters Act (UK) which refers to a person, living, dead or fictitious. His Honour concluded:

pretending to be another person who need not have ever existed

50 His Honour considered that an offence under s 184 comprised three elements; first, that the accused person had pretended to be another person; secondly, that the accused had done so with intent to obtain property; and thirdly, that that had been done fraudulently. His Honour considered that there was sufficient evidence for the Crown to be able to prove each of those elements and thus dismissed the application. His Honour repeated these three elements when directing the jury in respect of these offences (although in doing so he encapsulated the elements of the relevant intent, done fraudulently, together) (Appeal book 810).

51 The appellant also submitted that in his summing-up, the trial judge made a further error, when describing to the jury the first element of the offence. His Honour said that the Crown had to prove, beyond reasonable doubt “that the accused pretended to be another person”. It was submitted that his Honour left out the word “falsely”, which was an essential ingredient of the offence and, secondly, had substituted the phrase “another person” for “some other person”. The last point can be dealt with quickly. There is no difference in meaning between “another person” and “some other person”. In each case, the word or phrase simply means a person who is not the person making the application.

52 That leaves the question whether his Honour erred in omitting the word “falsely” when he identified the first element in the offence. The word “pretend” is defined in the Australian Concise Oxford Dictionary to mean “claim or assert falsely so as to deceive”. The definition in the Macquarie Dictionary is:

“… to put forward a false appearance of … to venture or attempt falsely (to do something)…”

53 It is apparent that the ordinary meaning of the word “pretend” includes the notion that the claim is false. It follows that his Honour would have been engaging in tautology to have used the word “falsely” as the appellant contended was required. It follows that his Honour’s direction in his summing-up was not erroneous as alleged.

54 Accordingly, no basis to interfere with the conviction has been established on this issue.

55 Before leaving this particular matter, however, reference should be made to one further submission made by the appellant, namely, that the offence which the appellant had in fact committed, but with which he had not been charged, was an offence under s 22 of the Road Transport (Driver Licensing) Act 1998 (NSW) which provides:

(a) by a false statement or any misrepresentation or other dishonest means, obtain or attempt to obtain a driver licence or the renewal of a driver licence, or

(b) without lawful authority or excuse, possess a driver licence obtained or renewed using those means.

Maximum penalty: 20 penalty units.

(2) A driver licence so obtained or renewed is void, and the Authority may alter the driver licence register accordingly.

56 As I understand the submission, it was that it was apparent from the terms of s 22 that the making of a false statement, such as making a claim in the name of an alias, was captured by the provisions of s 22. This demonstrated that s 184 was directed to different conduct, that is, impersonation of a real person. I have already dealt with this submission above. Further, as the Crown submits, the same conduct may constitute an offence under different Acts, or under different provisions of the same Act. Provided there is evidence that the person has committed the offence charged, then it is open to the Crown to prefer such charge notwithstanding that there is some other: see Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

57 The appellant did not submit that s 22 had repealed s 184 of the Crimes Act nor, in my opinion, was there any implied repeal: see generally Butler v Attorney General for the State of Victoria per Fullagar J at 275 –276.

58 The appellant also pointed out that the penalty provided for by s 22 was a maximum penalty of 20 penalty units, being a penalty of $2,200, as compared to a maximum penalty of 7 years imprisonment in respect of an offence under s 184. The appellant had mistakenly said the maximum penalty under s 22 was 12 months imprisonment. However, that does not detract from the point of the submission, which was to reinforce the earlier submission that the appellant had been charged with the wrong offence and that the seriousness of the criminality of the offence which he had committed was much less than that with which he had been charged. This also indicated that the appellant must have been charged under the wrong offence.

59 However, as I have already indicated, it is possible that the same conduct may constitute an offence under more than one provision of an Act, or under different Acts. Provided that the offence charged has been proved beyond reasonable doubt, it is irrelevant that there may have been some other lesser offence with which the accused person could have been charged. My comments in this regard relate to an appeal on conviction only. The existence of a provision with a lesser penalty may have some relevance in respect of sentence, which is dealt with later in these reasons.

Issue 3: availability of defences to the charges in counts 5 to 9: the s 10(1)(a) offences and counts 13 to 16: grounds 11, 13, 16, 17, 18, 19, 20, 21, 22 and 23

60 This issue relates to grounds 11, 13, 16, 17, 18, 19 and 20. The resolution of this issue will also resolve grounds 21, 22 and 23.

61 The appellant contended that although he had admitted most, if not all, of the facts adduced by the Crown in support of counts 5 to 9 (the s 10(1)(a) passport application offences) and counts 13 to 16 (the s 184 application for driver licence offences), he had defences to those charges of self-defence, duress of circumstance and necessity, but that the trial judge had ruled that those defences were not available. His Honour had also ruled that evidence that the appellant sought to adduce in support of those defences was not admissible.

62 It is necessary in the first instance to determine whether the defences as claimed were available, either as a matter of law or fact, in respect of the offences charged.

63 The appellant gave evidence of his background and work history in Melbourne. In the course of that, he identified the existence of two groups or “crews”, namely, the “Carlton crew” and the “Williams crew”. He gave evidence that he became associated with the “Carlton crew” (Appeal book 607, 628). He then gave evidence of connections to or with certain notorious persons who were or became known criminals, such as Christopher Dale Flannery, who had subsequently disappeared. He also gave evidence about murders and disappearances of persons with whom he was connected in a number of different merchant banking or finance companies. These events related to the 1980s.

64 The appellant then gave evidence of his activities during the 1990s. In the course of giving this evidence, he referred to other notorious Melbourne criminals, including Jason Moran and the killings of and by various notorious criminals.

65 The appellant next gave evidence about events in 2000. At that time, he was living in Sydney, but said he visited Melbourne regularly. He gave evidence that a Frank Benevenuto, regarded in Melbourne as the boss of the “Carlton crew”, was killed, and then, a Richard Maladnavic, a person whom the appellant described as a close associate, and who “was watching [the appellant’s] back in Melbourne, was very publicly executed” (Appeal book 628). The appellant said that, at that stage, he felt that “someone was trying to send [me] a message”. The appellant said that thereafter, he was stalked, and received a number of telephone calls which he said indicated to him that “[I] was not long for this world, that in effect, [I] was next” (Appeal book 629-631). The appellant said that after the death of Maladnavic, and having been stalked, he took precautions. He also referred to Mark Moran, a notorious Victorian underworld figure, being killed, and said, “I knew that the war was going to – the Morans were never going to take that lying down” (Appeal book 636). It appears that Mark Moran, according to the appellant’s evidence, was killed on 15 June 2000. The appellant said that Mark Moran was loosely associated with the “Carlton crew” (Appeal book 637).

66 The appellant gave evidence that he attended the RTA in Sydney on 13 June 2000 and applied for a licence in the name of Matthew John Clarke. He then gave this evidence:

67 The appellant admitted that, thereafter, he made the applications for passports and licences subject of the charges. Having identified the various applications he made up until the last one, dated 28 June 2000, he was asked:

68 Objection was taken to the next question, in which the appellant was asked to identify who had died, on the basis that matters occurring after the date of the charges were irrelevant.

69 The appellant said that he could not go to the police, because he considered that there were corrupt “rogue” elements in the police, some of whom would like to kill him (Appeal book 646).

70 The appellant submitted that, to prove his defences of duress, necessity or self-defence, it was sufficient for him to establish that he had an honest, well-founded belief as to the matters about which he gave evidence and in respect of which he had intended to call other evidence, including evidence of facts and circumstances that arose after the dates of the offence.

71 The evidence that the appellant contends he should have been allowed to give was set out in an affidavit of the appellant sworn 31 May 2006, filed on the appeal. The Crown did not take any objection to the Court reading this material. The appellant contends that his affidavit sets out his honest and well-founded belief as to the fear that he held for his life. The affidavit comprises some 184 paragraphs, as well as two further paragraphs in which he seeks certain orders on the appeal.

72 Besides the historical information as to the appellant’s personal life, the affidavit sets out in more discursive form the evidence which the appellant gave at trial as well as the evidence which he indicated he wished to give in respect of events after the date of the offences. That evidence is of the same type to that which his Honour, correctly, held was inadmissible. Further, much of the evidence was in inadmissible form and other evidence was merely argumentative.

73 At trial, the appellant’s counsel described the defence that the appellant wished to raise as being “duress by virtue of circumstances” (Appeal book 644). On the appeal, the appellant relied upon the decision of the Full Court of the Supreme Court of Victoria in R v Hurley and Murray [1967] VR 526 in relation to the defence of duress, and the decision of the Full Court of the Victorian Supreme Court in R v Loughnan [1981] VR 443 in relation to the defence of necessity.

74 In Hurley and Murray, the accused were convicted on 2 counts of having been accessories after the fact to the felony of escape. Two armed escapees had taken shelter in Hurley’s home. Hurley and Murray assisted the escapees by purchasing clothing for them and going to Sydney to purchase a car, Hurley’s de facto wife being held as a hostage during the absences of Hurley and Murray from the house. They alleged at trial that at the time of rendering assistance, their purpose was not to help the escapees to avoid arrest, but that they acted in order to protect themselves and others. Hurley alleged that he acted under duress from a fear of death or injury to himself or his de facto wife. Murray relied upon the defence of duress based upon a fear for the safety of Hurley, Hurley’s de facto, and the elderly boarder who lived in Hurley’s home.

75 The trial judge had ruled that Murray was not entitled to rely on the last matter as a defence, because fear for the safety of such persons could not in law amount to duress upon him. Winneke CJ and Pape J held at 533 that:

“… a person who without threat of death or serious violence voluntarily makes himself a party to a criminal enterprise cannot excuse his criminal conduct in participating in that enterprise by showing that after he had embraced the cause he was subjected to threats of violence at the hands of the other parties to ensure that he did not resile from the bargain he had voluntarily entered into.”

76 Their Honours held that on the facts, Murray, having voluntarily agreed to the arrangement upon being approached by Hurley to do so, could not rely on a defence of duress. The position with Hurley was different. Their Honours accepted that the defence of duress was open to him, at least insofar as there were continuing threats to his de facto wife. The issue in relation to Hurley was whether his evidence in that regard should have been accepted.

77 The appellant relies not upon the decision of the majority in Hurley and Murray, but upon the judgment of Smith J, particularly at 537. However, Smith J was not setting out the elements of the defence of duress at that point in his judgment. Rather, his Honour was recounting Hurley’s evidence. At 541, his Honour referred to the trial judge’s direction as to the defence of duress, which was in these terms and which Smith J considered was correct:

immediate

imminent

78 In R v Loughnan, the Victorian Full Court accepted that there was a defence of necessity to a criminal charge. Young CJ and King J at 447 indicated that they accepted a general proposition to the effect that the law, in some cases, does recognise a defence of necessity. At 448, their Honours stated that there were three elements involved in the defence. They described the first element in these terms:

“… the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect.”

79 Their Honours identified the other two elements by the labels of “immediate peril and proportion”. They described the first of these two elements to mean:

“[t]hat the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.”

“[It] simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?”

80 The defence of necessity was considered by this Court in R v Rogers (1996) 86 A Crim R 542. Gleeson CJ (Clarke JA and Ireland J agreeing) observed that the defences of necessity and self-defence were closely related.

81 This had been a matter adverted to in Loughnan, where Young CJ and King J said at 449:

“… the general description of a defence of necessity, is at least analogous to [the defence of self defence] …”

“First, an urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger. Secondly, those acts must not be disproportionate to the threatened danger.”

82 In Rogers, Gleeson CJ noted that since the High Court decision in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, juries were instructed that the ultimate question to be determined when a defence of self-defence was raised, was whether “the accused believed upon reasonable grounds that it was necessary in self-defence to what he did”. However, as Gleeson CJ pointed out at 545:

“The imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused’s supposed belief, and the reasonableness of his belief.”

83 At 546, Gleeson CJ agreed with the proposition advanced on behalf of the appellant in that case, that “the elements” of the defence of necessity were not to be approached in a categorical way:

“The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

Zecevic

84 His Honour concluded at 547:

Perka

United States v Bailey

‘Clearly, in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, (escape) was his only reasonable alternative.’

85 Gleeson CJ added, however:

“Reasonableness is not designed to allow people to choose for themselves whether to obey the law …”

of central factual importance

86 The Crown submits that the appellant’s case, if based upon duress, has not been made out. There was no evidence that the appellant was required to commit the offences under threat if he failed to do so: see Hurley and Murray at 541; see also R v Abusafiah (1991) 24 NSWLR 531. This submission is clearly correct.

87 The Crown accepts that the “defence of duress of circumstance” that trial counsel for the appellant relied upon was intended to raise the defence of necessity. The Crown submits that this defence was not made out, as there was nothing in the circumstances in which the appellant found himself, accepting those circumstances to exist, that required him to obtain passports and licences in false names. As senior counsel for the Crown submitted:

“You can call yourself whatever you want, but it doesn’t entail getting a false passport. It has no logical connection with attempting to avoid detection by unknown persons from the Victorian underworld.” (Appeal transcript 44)

88 The Crown’s submission is clearly correct. The appellant’s argument, that he needed a passport to book into backpacker hostels so as to mask his existence with a chameleon-like tapestry of false identities, begs the question as to whether he had no reasonable alternative but to obtain the false documentation to protect himself from some perceived danger. Even assuming it was reasonable for the appellant to frequently change his place of abode, and even to do so under an alias, that did not necessitate his obtaining false documents. The appellant’s conduct in doing so does not answer the description of necessity, as explained by Gleeson CJ in the passage set out above.

89 This disposes of grounds 11, 13 and 16.

90 Further, there was no evidence of imminent threat. The appellant did not contend that he was part of the underworld in which the killings in which he gave evidence were occurring. Rather, he only gave evidence of some association with it. He did not give evidence of why he might have been a target, other than for those associations. I have already referred to the connection which the authorities have recognised between the defence of necessity and the defence of self-defence. In Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28, the appellant was charged with possessing in a public place a thing capable of dispensing an irritant contrary to s 545E(1)(a) of the Crimes Act. It was a defence under the section that the person had a reasonable excuse for possessing the offensive material, or possessed it for a lawful purpose. The appellant’s case was that she carried a pressurised canister of formaldehyde, being a substance capable of causing bodily harm, in case anybody attacked her. In short, the appellant sought to raise a defence of self-defence. Brennan CJ, Toohey, McHugh and Gummow JJ, pointed out at 5:

“No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted.”

91 As the appellant’s own evidence was not sufficient to raise a defence to go to the jury, no error is disclosed in the trial process in relation to the other evidence that the appellant wished to adduce, particularly that of Detective Senior Sergeant Swindells, an officer of the Victorian Police Force.

92 The appellant’s contention in relation to DSS Swindells is formulated in appeal ground 17 in these terms:

“That the learned trial judge erred in law and fact in not allowing the Appellant to call DSS Phil Swindells from the Victoria Police to give evidence in support of the defences raised by the Appellant of Self defence, Duress of Circumstance and Necessity.” (Appellant’s book 3 p 63)

93 The issue in respect of DSS Swindells arose on the ninth day of trial, when it became apparent that the officer was present at court and there was a question as to whether he should be interposed. The appellant’s trial counsel informed the trial judge that DSS Swindells was going to give evidence about the deaths and the association of underworld figures in Melbourne to the “Carlton and Williams crew”. His Honour indicated that he considered that if that was the “kind of evidence” that was going to be adduced from the police officer, “it fell a long way short of being capable of making out any of [the] defences”. His Honour indicated that, in that circumstance, the evidence was irrelevant. The appellant’s counsel, Mr Lowe, disagreed, and said the evidence was relevant to the appellant’s “state of mind” (Appeal book 681). Counsel also indicated that DSS Swindells would give evidence about the sequence of events up to the time of the date of the offences, but not thereafter, as he considered himself bound by the trial judge’s ruling that such evidence would be irrelevant.

94 Discussion then ensued between his Honour and counsel as to the elements of the defence and, in particular, that it was necessary for the evidence “to be capable of showing that [the appellant] had no other choice but to act in the way he did”. Counsel agreed that was the law (Appeal book 681). Counsel then indicated the appellant had already given evidence about his reluctance to go to the police, but could not because he was afraid of the Victorian and New South Wales police. His Honour indicated that was not sufficient to establish the defence. His Honour said:

“… that does not get within a bull’s roar of necessity or duress … let alone self defence. It does not even get within cooee of it.” (Appeal book 682)

95 In the discussion which followed, his Honour emphasised that the law required the appellant to have committed the offences because “he had no other choice”. It is apparent from counsel’s response that he agreed that that represented the law (Appeal book 683). His Honour then said:

“Mr Lowe, it appears to me that the evidence that the witness you propose to interpose is going to give is completely and utterly irrelevant to any real issue in this trial. I don’t know what you want to do in the light of that ruling. If you want to call him I’ll deal with it question by question if you like. It’s up to you, but that’s my view. Unless you can take me … to a case that shows me that the law that I’ve just put to you and which has been endorsed by the Crown Prosecutor is wrong, that’s the position as far as I’m concerned.” (Appeal book 685)

96 Counsel then referred his Honour to Loughnan and Rogers and his Honour indicated that he considered that he should apply the reasoning of the Chief Justice in Rogers. (Appeal book 686) His Honour referred to the statement of the Chief Justice at 547, which I have already set out above, that:

“[T]he accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.”

97 Counsel responded that the appellant had already given evidence about that and that it was a jury question. His Honour stated that the evidence was not capable of establishing that, and he was not going to allow the defence to go to the jury.

98 Counsel sought an opportunity to obtain instructions from his client about releasing the witness. His Honour then said:

“Yes, unless the evidence is going to be different Mr Lowe. Unless the evidence is going to rise above the evidence that I have before me at the moment because I can tell you Mr Lowe that the criminal law is not a joke and I am not going to allow it to be used for a purpose which will make the criminal law look ludicrous in the eyes of the jury in asking them to consider defences which an intelligent five year old would think were laughable.” (Appeal book 687)

99 Appellant’s counsel sought instructions and then requested that his Honour release DSS Swindells from his subpoena:

“[I]n accordance with your Honour’s ruling on the issue of his relevance.”

100 It is apparent from the above exchange that ground 17, in terms in which it is framed, is not made out. It was not that his Honour did not allow DSS Swindells to give evidence. Rather, he indicated that having regard to the evidence that it was proposed to adduce from that witness, it was not relevant to the defences sought to be raised, because it fell below what would be required to be proved in respect of any of the constituent elements of those defences, and in particular, of the defence of necessity. Ground 17 should be treated as seeking to challenge that ruling.

101 It is apparent that the evidence that it was intended that DSS Swindells should give was of the same order as the evidence which was given by the appellant himself. In other words, it was evidence which was intended to support the appellant’s evidence of the criminal underworld, to which reference is made above. As I have already concluded that the appellant’s evidence was insufficient to satisfy any of the elements of the defence of necessity, based on that evidence, the evidence proposed to be adduced from DSS Swindells was also irrelevant. Accordingly, there was no error in his Honour ruling as he did.

102 This conclusion also takes account of ground 18, in which it is alleged that his Honour similarly erred in not receiving evidence from other witnesses in support of the defences.

103 Likewise, if evidence of these activities and connections that occurred and existed prior to the commission of the offences was irrelevant for the purposes of the defences, then similar evidence of events occurring thereafter would also be irrelevant. Accordingly, the evidence relating to persons who had been murdered and the appellant’s relationship with them; the fact that certain other underworld persons had been arrested; and the fact that one of these underworld persons was in such fear for his life that he sought to obtain a passport in another name, was irrelevant. In any event, much, if not all, of that evidence would have been in inadmissible form. Accordingly, there was no error in his Honour’s ruling that such evidence was irrelevant. That conclusion disposes of grounds 19 and 20.

104 The appellant then contended in appeal ground 21 that his Honour erred in ruling that that evidence was not relevant but allowing the Crown to elicit evidence of the fear held by the appellant in cross-examination as an attack on his credit, and did not allow the defence to revisit the same material to re-establish the credit of the appellant. There were extensions of this ground in grounds 22 and 23, in which the appellant contends that his Honour erred in not allowing the appellant to call DSS Swindells and other witnesses in relation to the veracity of the fear held by the appellant.

105 The appellant had already given evidence of his fear for his personal safety. Although his Honour had indicated to the parties that the evidence was not sufficient to establish the defences, it was open to the Crown to attack his credit, based upon that evidence. For example, the appellant had suggested in his evidence that it was necessary to have the false identities because he feared for his life, yet he went to places where he was well-known. The Crown submits, correctly, in my opinion, that cross-examination of the appellant on these issues was relevant to his credibility.

106 The appellant contends however that he should have been able to give evidence of these matters in re-examination, the matter having been the subject of cross-examination. It was not open to the appellant to merely reiterate his evidence in re-examination so as to establish his state of mind so as to provide a basis for his proposed defence. An examination of the transcript indicates that was what was being attempted. His Honour indicated that was not permissible in re-examination and that he had already given evidence of his state of mind. Contrary to the appellant’s assertion that he should have been able to give such evidence so as to re-establish his credit as permitted by s 108 of the Evidence Act 1995 (NSW), his counsel did not seek to adduce evidence for that purpose, nor was this evidence intended to do so.

Issue 4: should the appellant have been dealt with under the Mental Health (Criminal Procedure) Act 1990 (NSW)? (Grounds 1-8)

107 The appellant suffers from the condition of sleep apnoea. From time to time, that condition has a significant impact on his health. There was a period of time, during which the appellant was upon remand, when the court accepted that he was not sufficiently well to stand trial. For that reason, the original trial date was vacated by his Honour Justice Blanch Chief Judge of the District Court on 8 May 2003 and the matter was adjourned from time to time until the trial date was finally set for 15 November 2004. On two specific occasions during the period, the appellant made an application that the trial be adjourned for directions on the basis that he was unfit to be tried.

108 The appellant contends that when Blanch CJDC first vacated the hearing date, his Honour made a finding that the appellant was “not fit for trial”. That finding having been made, the appellant contends that he should have been dealt with pursuant to Pt IB Div 6 of the Crimes Act 1914 (Cth) (the Crimes Act (Cth)) insofar as the Commonwealth offences were concerned and under the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) (the Mental Health (Criminal Procedure) Act) insofar as the State charges were concerned. These contentions form the bases of grounds of appeal 1 to 6.

109 The Crown disputes that there was ever a finding that the appellant was “not fit for trial” as alleged, but in any event, it contends that “fitness for trial” within the relevant legislative provisions relates to a person’s mental capacity to engage in the trial process and at no stage was there evidence to support the appellant’s claim that he was “not fit for trial” in that sense.

The statutory scheme

Commonwealth legislation

110 Section 20B of the Crimes Act (Cth) provides, relevantly:

“(3) Where a court:

(b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;

finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

…
(5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

“(4) Where the court determines that there has been established a prima facie case that the person committed the offence … the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.”

The phrase “ unfit to be tried ” is not defined in the Commonwealth legislation. However, pursuant to s 16 of the Crimes Act (Cth) , “ unfit to be tried ” includes “ unfit to plead ”.

State legislation

111 Under the Mental Health (Criminal Procedure) Act, provision is also made for determining questions of unfitness to be tried. The phrase “unfitness to be tried” is not defined in the Act. The question of unfitness may be raised by any party to the proceedings: s 5; the question of a person’s unfitness is to be determined on the balance of probabilities: s 6; the question of unfitness should, so far as is practicable, be raised before the person is arraigned, but may be raised at any time: s 7(1). Section 8 (in its form as at the dates relevant to this matter) prescribes the procedure where the question of unfitness is raised before arraignment. It provides:

“(1) If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney-General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.

112 It should be said that there appears to be an hiatus in the legislation, in the sense that there is no provision directing ‘how’ the matter gets to the Attorney-General. Such a lacuna is not atypical in modern legislation. Often, legislation appears to be drafted on the basis of assumptions or practices known to those who operate in a particular area. This problem was encountered recently in the Court of Appeal in Re Jayden [2007] NSWCA 35. Presumably, the papers are referred to the Attorney-General by the court with a request that the Attorney-General determine whether an inquiry should be conducted.

113 Sections 10(1)(a) and 10(2) provide:

(a) the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted …

the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.

114 Before conducting the inquiry, the court may do a number of things, including adjourning the proceedings and requesting a psychiatric or other report in relation to the accused be obtained: s 10(3).

115 The inquiry referred to in s 10 is governed by s 11. Section 11(1) provides that the question of unfitness is to be tried before a jury constituted for that purpose.

116 The central question which arises on this issue is whether before trial there was a question of the appellant’s unfitness to be tried for an offence. This in turn raises the question of the reach of the Mental Health (Criminal Procedure) Act and, in particular, whether it extends to fitness arising from a physical condition which does not involve a “mental illness” or “mental condition”.

117 The Mental Health (Criminal Procedure) Act was enacted as part of a tranche of legislation relating to mental health, the other Acts being the Mental Health Act 1990 (NSW) (the Mental Health Act), the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW) (the Miscellaneous Acts (Mental Health) Act).

118 The objects of the Mental Health Act are set out in s 4 of that Act and in broad terms relate to the care, treatment and control of mentally ill and mentally disordered persons. There are no specified objects of the Mental Health (Criminal Procedure) Act. However, it is entitled “An Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions”. “Mental condition” is defined in s 3 to mean “a condition of disability of mind not including either mental illness or developmental disability of mind”. “Mental illness” is not defined but would bear the same meaning as in the Mental Health Act. The appellant does not contend that he suffers from a mental illness, so it is not necessary to refer to that definition.

119 Part 2 of the Mental Health (Criminal Procedure) Act is headed “Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders”. “Mental disorders” is not defined in this Act but is defined in s 10 of the Mental Health Act to mean:

(a) for the person’s own protection from serious physical harm, or

(b) for the protection of others from serious physical harm.”

120 If a person is found by the jury to be unfit to be tried, the proceedings brought against the person must not be recommenced or continued, and the court must refer the person to the Mental Health Review Tribunal: s 14(a).

121 The Mental Health Review Tribunal is required to determine whether on the balance of probabilities the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence: s 16(1). If the Tribunal makes such a determination, it must also determine whether or not the person is suffering from a mental illness: s 16(2)(a), or a mental condition for which treatment is available in a hospital: s 16(2)(b).

122 If the Tribunal determines that the person will not become fit to be tried during the succeeding 12 months, then it must notify the Attorney-General: s 16(4). Section 17 then prescribes what orders the court may make if the Tribunal determines that a person will be fit to plead within 12 months. It may, for example, grant bail for a period not exceeding 12 months: s 17(2). If the Tribunal has determined that the person is suffering from a mental illness or mental condition for which treatment is available, the court may order the person to be taken to and detained in a hospital if the person does not object, or otherwise may make an order for the detention of the person in some other place: s 17(3).

123 If the Mental Health Review Tribunal determines that the person will not be fit to be tried within 12 months, then the Attorney-General may direct a special hearing, or advise the Minister for Police that the person will not be further proceeded against: s 18. In a special hearing, a jury or court may deliver a verdict that the person is not guilty of the offence charged: is not guilty on the ground of mental illness; that on the limited evidence available, the accused person committed the offence; or that on the limited evidence, the accused person committed an available alternative to the offence charged: s 22(1).

124 Thereafter, there are procedures for dealing with a person if it is determined the person is suffering from a mental illness or mental condition. It is not necessary to expound upon the details of those provisions. They are to be found at ss 22 to 27.

125 It would be extraordinary if a person suffering from a purely physical condition fell within these provisions. An obvious example may be given. Assume that a person is seriously injured in an accident two days before trial and is expected in the succeeding weeks to undergo major surgery. Assume the person could not eat and was being fed and medicated intravenously. It could readily be said of such a person that that person was unfit to be tried on the date set for trial. It would be nonsense, however, to say that that person should be dealt with under the provisions of Pt 2 of the Mental Health (Criminal Procedure) Act.

126 The position is different, however, if, by reason of a physical or other disability, a person was unable to understand the procedures by which he was to be tried. This is how, “unfitness to be tried” has been interpreted in a range of cases and in respect of which a range of legislation which derived originally from the Criminal Lunatics Act 1800 (UK).

127 In R v Presser [1958] VR 45, the court was concerned with the provisions of s 426 of the Crimes Act 1928 (Vic) which provided that:

“… if any person presented for an indictable offence is insane … and is so found by a jury lawfully empanelled for that purpose … that such person cannot be tried upon such presentment …”

128 Smith J, at 48, identified the question to be determined under the section as being:

“… whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him … He needs … to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

129 This explanation is often referred to as the ‘Presser test’, or by a phrase such as ‘mental unfitness in the Presser sense’.

130 In Ngatayi v The Queen (1980) 147 CLR 1 Gibbs, Mason and Wilson JJ observed that legislation governing “fitness to be tried” had always been interpreted as to raise the question “whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge”: see R v Pritchard (1836) 173 ER 135 per Alderson B.

131 Ngatayi was a “full-blood aboriginal who did not speak or understand English”. He was charged upon indictment with wilful murder. Upon his arraignment an application was made under s 631 of the Criminal Code (WA) which provided:

for any reason

132 Their Honours, at 8, said that the test “looks to the capacity of the accused to understand the proceedings”, but pointed out that complete understanding was not necessary. Their Honours agreed with the approach taken by Smith J in Presser that the test needs to be applied “in a reasonable and commonsense fashion”. Their Honours essentially endorsed the statement of Smith J as to the minimum capacity an accused needed before he could be tried without unfairness or injustice. Their Honours noted, however, that the reference to mental capacity in Smith J’s judgment was explained by the terms of the statute under consideration by his Honour which spoke of “insanity” and not want of capacity “for any reason” which was the language of the legislation with which the Court was dealing. At 9, their Honours reiterated the test to be applied, namely, whether the accused person “is capable of understanding the proceedings at the trial so as to be able to make a proper defence”.

133 The High Court again dealt with the question of fitness to be tried in Kesavarajah v The Queen (1994) 181 CLR 230. In that case, the Court was dealing with the provisions of s 393 of the Crimes Act 1958 (Vic). That was the same provision dealt with by Smith J in Presser. Again, the Court accepted the test to be applied was one that “looks to the capacity of the accused to understand the proceedings”. Mason CJ, Toohey and Gaudron JJ in their joint judgment (Dean and Dawson JJ agreeing on this point) remarked that the test did not mean that the accused was required “to have sufficient capacity to make an able defence”: see Presser at 48 and Ngatayi at 8. Their Honours then reiterated the “minimum standard” with which an accused had to comply before it could be said that the person could be tried without unfairness or injustice, as elaborated by Smith J in Presser.

134 In Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29 Eastman, upon an application for special leave to appeal to the High Court, raised for the first time his fitness to plead because of mental illness. In the course of considering that question, Gaudron and Hayne JJ gave consideration to what was involved in the concept of fitness to plead. Gaudron J said at [57] that in general terms, a person was fit to plead if that person “has sufficient understanding to comprehend the nature of [the trial] so as to make a proper defence to the charge”. Her Honour adopted these words from Pritchard (see above). Her Honour accepted the Presser test, that there were certain minimal matters that the accused person needed to be able to comprehend. Her Honour also accepted the qualification in Presser and Ngatayi that the person did not need to have the mental capacity to make an “able” defence.

135 At [59] her Honour commented that the question whether a person was fit to plead “may arise for reasons other than mental illness”. Her Honour related examples that had arisen in the cases, such as a person being deaf and dumb: see Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62 (also being a matter referred to in Presser); or because of language difficulties: see, for example, Ngatayi. Her Honour also noted that the concept of unfitness was one that derived from the common law, although there were usually statutory provisions which bore upon the determination of the issue. Importantly, for the issue that arises here, her Honour then said:

“22 Continuation of trial or inquest on death or discharge of juror

(a) in the case of criminal proceedings, the number of its members:

(i) is not reduced below 10,

(ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or

(iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months,

(b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or

(c) in the case of a coronial inquest, the number of its members is not reduced below 4,

241 The appellant contends that Commonwealth law demands that the trial of Federal offences be by a jury of 12. Whilst acknowledging that s 68 of the Judiciary Act provides that the practice and procedure of the State where a person is tried are to apply, he says that generally, Commonwealth law is not overridden: see the Constitution s 80. It followed, on his argument, that a provision such as s 22 of the Jury Act did not override the provisions of the Constitution. Section 80 provides:

“The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”

242 The question whether a trial which continued with 10 jurors after the exercise of the discretion otherwise conferred by s 22 contravened the Constitutional safeguard of trial by jury provided for in s 80 was considered by the High Court in Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36. Gleeson CJ and McHugh J held at [23]:

Jury Act

243 It follows that this argument should be rejected.

244 Finally, the appellant contends his Honour erred in the exercise of his discretion under s 22. No error has been demonstrated. The trial was well advanced by that stage. There was no error in taking into account the fact that the charges were “old”. Indeed, that was a relevant consideration in having the trial continue with 11 jurors.

245 It follows that ground 30 should be dismissed.

Conclusion on the appeal against conviction

246 It follows from the above that the appeal against conviction should be dismissed.

247 I have had the opportunity to read in draft the reasons of Howie J relating to the application for leave to appeal against sentence. I agree with his Honour’s reasons and proposed orders.

Application for stated case

248 As indicated above, there are related proceedings in the Court of Appeal proceedings CA 40803/06 including a stated case. Associated with the stated case was a question relating to a stated case in respect of the s 184 charges. According to correspondence between the appellant and the Commonwealth DPP, the appellant proposed to add a ninth question to the case to be stated case relating to the charges under s 184 of the Crimes Act. The terms of the proposed question were:

Of the Crimes Act

249 Section 5A of the Criminal Appeal Act provides that a judge before whom a person is tried and convicted on indictment may submit a question of law relating to the trial or conviction to the Court of Criminal Appeal for determination. Any question so submitted is to be dealt with as if it were an appeal under s 5.

250 This question was not submitted to the Court in the case stated by his Honour. It is not clear whether this was by oversight, but in any event, this question was raised in precisely the same terms as ground 26 on the appeal and has been dealt with on that basis.

251 Having regard to my conclusions in respect of the grounds of appeal and my agreement with Howie J in respect of the application for leave to appeal against sentence, the orders I propose are as follows:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed.

252 SULLY J: I agree with Beazley JA and with Howie J.

253 HOWIE J: I have the benefit of reading the judgment of Beazley JA in draft and agree for the reasons given by her Honour that the appeal against conviction should be dismissed.

254 The appellant was convicted of five offences contrary to s 10(1)(a) and seven offences contrary to s 10(1)(b) of the Passports Act (Cth) and four offences contrary to s 184 of the Crimes Act (NSW). Judge Hosking sentenced the appellant to a total term of imprisonment of 2 years and 4 months. In effect he was sentenced for the Commonwealth offences to 19 months and for the State offences to a cumulative 9 months. The Judge did not impose a non-parole period or a recognisance release order.

255 The maximum penalty for the offences in contravention of the Passports Act was relevantly imprisonment for 2 years and for the offences against s184 imprisonment for 7 years.

256 The appellant was born in 1950. He had convictions in Victoria for offences of dishonesty in 1985 and again in 1987 for which he received a gaol sentence involving a minimum period in custody of 8 years. A pre-sentence report revealed that the appellant was released to parole in Victoria in 1991 and completed the parole period in 1995. The Judge took into account that there was some question unresolved about some of the Victorian convictions and that there might be an inquiry regarding them.

257 The appellant had come to Australia from New Zealand in 1973 on the break up of his first marriage. He remarried but that ended in divorce in 1980 without children. He is a lawyer and worked initially with the Bank of New Zealand. He hopes to complete a master’s degree in law. He was on a disability pension as a result of health problems including sleep apnoea and hypertension.

258 He told the officer preparing the report that he felt justified in committing the offences as without having done so he would be dead. He was described as an intelligent person who had used his abilities for illegal purposes. He was assessed as not benefiting from supervision by the Probation and Parole Service. He had been in custody prior to being sentenced since he was convicted on 26 November 2004.

259 He was sentenced on 11 April 2005. The Judge found that helping persons to obtain passports had the potential to assist them in committing other offences. He described the offences as involving a scheme of “some sophistication and involved elaborate planning”. The Judge found that the passport offences stood towards the upper range of the seriousness of such offences and the licence offences of “slightly lesser seriousness”. He held the general deterrence should be reflected in the sentence as well as specific deterrence in light of the absence of any remorse shown by the appellant for his offending.

260 The appellant has raised a number of grounds of appeal in relation to the sentences imposed. He has filed lengthy written submissions in relation to each ground of appeal and did not speak to them orally at the hearing. The first of the grounds relating to sentence, Ground 31, asserts that the sentence is manifestly excessive. The appellant’s written submissions in support of this ground contains a completely unfounded assertion that the Judge found the task of sentencing the appellant more pleasant than he should have done. This allegation is based largely upon the appellant’s complaints of bias on the part of the Judge during the trial, an allegation that Beazley JA has rejected.

261 It is also submitted that the Judge sentenced the appellant more harshly by reason of the lies that he believed the appellant had told in explanation for the offences. There is nothing to suggest that he did punish the appellant in this way. The Judge was fully entitled, in my view, to indicate that the appellant’s explanation for the offending was “bordering on the farcical”. The fact that the Judge may have disbelieved the appellant’s version of events meant that there was no remorse for his offending and might also have raised doubts about the appellant’s rehabilitation. To that extent the appellant’s lack of honesty in his evidence could have legitimately resulted in a longer sentence than might otherwise have been the case.

262 It was also submitted that the Judge failed to follow Johnson v The Queen (2004) 78 ALJR 616 and Pearce v The Queen (1998) 194 CLR 610 but I can see nothing that indicates that the Judge wrongly determined the individual sentences or the manner in which they should be accumulated to give the overall sentence. The appellant seems to believe that it is significant that the Judge was Senior Counsel before the High Court in Pearce. Even if that were so, I do not see that it has the slightest relevance to any of the grounds of appeal or the correctness or otherwise of the sentences imposed upon the appellant.

263 The appellant set out a table purporting to show that, after taking into account remissions and a discount of a third for the fact that he was serving his sentence under a more strict custodial regime, the sentence imposed would have been the equivalent of a head term of 7 years. In my view these calculations are misguided because there is no discount for remissions applicable and no set discount to be applied according to the nature of the custody being served.

264 Ground 32 complains that the Judge erred in not imposing wholly concurrent sentences because the offences fell within what the appellant described as “one multi-faceted course of conduct”. It has been held repeatedly in this Court that a sentencing judge has a discretion whether to order that sentences for multiple offences be concurrent or cumulative. Generally, however, the overall sentence must reflect the overall criminality reflected in the offences for which sentence is being imposed and the issue of totality of criminality will determine how the sentences are to be structured. It has been made clear that concurrent sentences are not required simply because the offences form part of a single act of criminality or arise from a single course of criminal conduct. Here there were separate acts of dishonesty in relation to each of the offences and in my opinion there was no error in the decision of the Judge to cumulate some of the sentences. This ground should be rejected.

265 Ground 33 complains that the Judge did not take into account that the sentences were to be served in this State where there are no remissions available. Section 16G of the Crimes Act (Cth) use to require that a court sentencing for Commonwealth offences take into account the absence of remissions in the jurisdiction where the sentence was to be served. The result was that in this State sentences for Commonwealth offences were usually reduced by about one third to compensate for the absence of remissions. The appellant claims that he should have received that discount. However s 16G was repealed and ceased to operate from 16 January 2003. The effect of the repeal of that provision was considered in a number of decisions of this Court starting with R v Studenikin (2004) 60 NSWLR 1 through to R v Bezan (2004) 147 A Crim R 430. In effect those decisions hold that there is no longer any reduction of sentences because of the absence of remissions but that sentences to be imposed after the repeal of s 16G were not to increase automatically by a third. In the present case there was no reason for the Judge to take any different approach in sentencing the appellant simply because the offences occurred before the section was repealed. The ground must be rejected.

266 Ground 34 is to the effect that the Judge erred in failing to take into account the period of time that had elapsed since the offences were committed. The appellant refers to the well-known principle set out in R v Todd [1982] 2 NSWLR 517 about the relevance of delay in sentencing. However I do not believe that the offences should be treated as “stale crimes” as that expression is used in Todd. Much of the delay was no doubt due to the fact that the appellant was pleading not guilty and some of it as a result of the appellant seeking adjournments on medical grounds. Although the appellant was not to be punished for causing any delay, there was no reason why it should have resulted in any great leniency. The appellant was on bail throughout the period before he was convicted, but the conditions of his bail were not so rigorous that any account should have been taken of them. There was no material to suggest that the appellant had been prejudiced in any way by the delay nor was there anything to suggest that the delay had any other impact upon the sentences to be imposed for the offences. The effect of any rehabilitation that the appellant might have achieved in that time was diminished substantially by his lack of remorse for the offences and his belief in his justification for his conduct. The ground should be rejected.

267 Ground 35 complains that the Judge did not take into account sufficiently the appellant’s health problems at the time of the commission of the offences. The Judge indicated explicitly that he did take that matter into account but the appellant submits that his Honour should be seen as being “disingenuous” in stating that he did so. It was suggested that the Judge’s statements and conduct throughout the trial indicated that he did not believe that the applicant was seriously affected by health disorders. I do not believe that there is any basis for this criticism and I do not see why the Judge should not be taken at his word.

268 In any event the commission of the offences were unconnected to his health problems and his ill health did not explain or mitigate the criminality involved in the offences. There was no evidence that the health of the applicant was a matter that would result in imprisonment being significantly harsher for him. In any event there is little mitigation to be found in poor health that existed at the time of the commission of offences. It has frequently been stated that ill health is not a licence to commit crime. Contrary to the appellant’s submissions there was no reason to diminish the impact of deterrence by reason of the applicant’s health problems. The ground has no substance.

269 Ground 36 complain that the Judge did not order that part of the sentence be served by some means other than full-time custody, such as periodic detention or parole. It was submitted that the Judge failed to fix a period of parole because he found it too difficult to do so. This impertinent submission overlooks the fact that it is not unusual for Judges of the District Court to impose sentences for both Commonwealth and State offences on the one offender and appear to be able to do so with little difficulty in understanding and applying the different provisions. The Judge determined that the minimum time in custody that the appellant should serve for these offences was the sentence imposed. He gave as a reason for not fixing a parole period or a release order the manner in which he was structuring the sentences that is by a series of short overlapping sentences. It can be assumed that the Judge saw no purpose in requiring the appellant to serve a period on parole or under a recognisance. In light of the appellant’s age, criminal record and the lack of any perceived benefit to be received from supervision, the Judge was entitled to impose what was in effect a fixed term of imprisonment. In my view it was an entirely appropriate method of dealing with the appellant. If this Court were to intervene to specify a period on parole, it could only do so by increasing the overall sentence to be served by the appellant, a course that this Court would not adopt on an appellant’s appeal. The ground fails.

270 Ground 37 raises an error by the Judge in referring to the fact that the appellant was to be sentenced for seven offences under s 10(1)(a) of the Passports Act when there were only five offences under that section. It is clear that this was a mere slip on the part of the sentencing judge who was aware that there were twelve offences under that Act. The offences each carried the same maximum penalty regardless of the section breached. The error could not in my view have resulted in a harsher sentence than would have been appropriate for the offences of which the appellant was convicted particularly having regard to the manner in which the Judge sentenced the respondent, each of the sentences for the passport offences being identical. This ground fails.

271 Ground 38 complains that the Judge sentenced the appellant on the basis the he was “a very dishonest man” because of the sentences imposed in 1985. As has been noted the appellant was sentenced to a total minimum of 8 years imprisonment in Victoria for offences of dishonesty. The offences before his Honour were also dishonest offences involving as they did false statements and misrepresentations of facts. The appellant complains that the criminal record placed before his Honour erroneously showed that he had a conviction for perjury that he denies. He states that he instructed his legal representative that this was so but no point was taken at the hearing. In light of the other offences for which he was convicted and sentenced in 1985, the additional perjury conviction, even if it were an error, would not have made the slightest difference to an assessment of the appellant as a dishonest person. The Judge was clearly entitled to take into account the appellant’s criminal record. In my opinion there was no miscarriage of justice arising from his criminal record or the Judge’s comments upon it. This ground should be rejected.

272 Ground 39 complains that the Judge erred in remarking that only one of the appellant’s passports had been detected when a number had been recovered. This was hardly a matter of such moment that, had the Judge been in error, it would have resulted in this Court holding that his discretion had so miscarried as to warrant this Court’s intervention. But in any case the evidence was that only one passport had been recovered, that for Virginia Yan.

273 Ground 40 concerns the fact that the appellant had served his period in custody prior to sentencing as a “SMAP inmate”. It was submitted that the Judge should have taken into account that he had served a period of custody under harsher conditions and also that he may be required to serve the balance of his sentence under such conditions in the future. It has been noted by this Court that, just because a person is serving a sentence in some form of protective custody, it does not necessarily follow that those conditions would be harsher than the conditions for prisoners in the normal prison population: R v Mostyn (2004) 145 A Crim R 304. This Court has emphasised that, if an offender wishes to receive some mitigation of sentence by reason of the conditions of imprisonment, it is for the offender to lead evidence of what those conditions entail. There was no evidence before the sentencing Judge of the conditions of the appellant’s imprisonment and none before this Court. There is merely a bald assertion that the conditions of his imprisonment were more onerous. The appellant does point to the fact that his legal representative was intending to obtain a letter from the gaol authorities as to the conditions of the appellant’s imprisonment but that was not forthcoming by the time he was sentenced. Contrary to the appellant’s assertion, there was no requirement for the Judge to postpone passing sentence until that information was placed before him. In any event there is no material before this Court to justify any reduction in the sentences and this ground should be rejected.

274 Ground 41 asserts that the Judge erred in not finding that the appellant had good prospects of rehabilitation. This was a question of fact for his Honour to determine on the material before him. The Judge was aware and expressly mentioned the fact that the appellant was undertaking further studies and hoped to obtain a Master’s degree. Other than that there was little evidence to support a positive finding that the appellant had good prospects of rehabilitation. The appellant in his submissions relies upon his progress in dealing with his health issues, but that does not seem to me to advance the matter. There was, however, evidence against the appellant’s rehabilitation and that was his attitude to his offending. I would not be prepared to find that he had good prospects of rehabilitation if it were necessary for this Court to resentence him. At best the evidence is neutral: at worst his sense of justification for what he did suggests that the appellant will take any action that he thinks is necessary even if it means planning and committing criminal offences.

275 Grounds 42 to 46 relate to an assertion by the appellant that the Judge in effect refused to allow the appellant to give or call evidence at the sentencing proceedings. The appellant asserts that he wished to give and call evidence as to the background to the offending including the defences raised during the trial. He also asserts that he wished to call witnesses to give evidence as to the appellant’s character and lifestyle and the effect on him of the period he served in custody in Victoria.

276 Notwithstanding that the Judge had refused to permit the accused to rely upon self-defence, duress, or necessity during the trial, both defence counsel and the Judge accepted that evidence of those matters could be relevant to the sentences to be imposed. The difficulty for the appellant was that the Judge did not accept his explanation. On 1 April 2005 in the proceedings after conviction the following took place:

Defence Counsel :………I should advise your Honour that the issue of duress, you may [remember] that during the occurrence of the trial a defence of duress of circumstances was raised and taken away by your Honour from the jury’s consideration, that nonetheless my client’s belief such as it was as to why it was necessary to commit these offences is a relevant fact on sentence.

HIS HONOUR: Well if I accept he had that belief…sometimes it was a bit hard to accept.

DEFENCE COUNSEL: There is a, I do have a witness I think outside the Court who has known Mr Clarkson for a period of years and will testify as to issues of his evasiveness in relation to disclosing where he lives et cetera. If your Honour wishes to hear that evidence I can call that--

HIS HONOUR: Well --

DEFENCE COUNSEL: But it goes to the issue very much of the duress of circumstances that he did this because he was afraid of what would happen in terms of what was happening in the Victorian underworld in those years up to 2000. Those are my instructions your Honour.

277 The appellant did not give evidence at the sentencing proceedings and no further application was made by the appellant or his legal representative to call witnesses. There was nothing that the Judge had done during the trial that prevented the appellant giving or calling evidence at the sentencing hearing and it is clear that counsel did not believe he was precluded from calling such evidence. The Judge, however, had the evidence given by the appellant during the trial as to the background to the offences but was not prepared to accept it as being in any way mitigating of the offences. The Judge said during the sentencing remarks that he regarded the evidence “with great suspicion” and that the appellant’s account of needing the passports to secure accommodation as “highly improbable”. The appellant had the onus of proving his account on the balance of probabilities so far as the sentencing proceedings were concerned if it was to be used to mitigate the seriousness of the offending. The Judge was perfectly entitled to reject the account or at least to find that it did not mitigate the seriousness of the offences given his view that they involved some sophistication and elaborate planning.

278 The appellant in his written submissions stated that named persons were present at the hearing and could have given evidence on his behalf. Presumably these include the person to whom defence counsel referred in the passage just quoted. However, no witnesses were called before the Judge and no application was made to call them before this Court. There is no material from the appellant’s legal representatives explaining why they were not called on sentence. It seems counsel decided against taking that course. But it is clear that defence counsel did not think that anything that had occurred in the trial precluded him from calling witnesses on the issue of the accused’s explanation for the offences. There was no reason for not calling other witnesses that might be relevant to the appellant’s rehabilitation after release from custody if those witnesses were available. The appellant complains that the Judge was obliged to hear such evidence but there was no attempt made to call it and no reason has been given for not having done so.

279 The appellant further complains that he wanted to give and call evidence as to the effect upon him of other criminal proceedings in Victoria and the sentences he served in that State in what he described as “filth and squalor” as a result of what he says was a corrupt criminal justice system. The impact of the past prosecutions or sentences served by the appellant was not a matter raised during the sentencing hearing and he cannot now complain that the Judge did not hear evidence on that topic. These grounds should be rejected.

280 Ground 47 complains that the Judge took into account irrelevant material and failed to give weight to relevant considerations. In particular it is said that the Judge gave improper weight to the appellant’s criminal antecedents, the sophistication in the methodology in the commission of the offences, the effect upon the “protocols for the issuing of Australian passports” and the “danger posed to the National Security of Australia and other countries”. The appellant refers to the fact that the Judge said that he would “factor in” that some of the convictions in Victoria might be subject to an inquiry. The appellant complains that it is not clear what the Judge meant by that remark and that in some way he might have used it to his disadvantage. With respect I am not sure what the Judge meant either but it is impossible to see how it was to be taken other than in the appellant’s favour. In any event the appellant’s record had limited value and merely showed that his dishonesty in committing these offences was not an aberration. There is no merit in the complaint that the Judge increased the sentences by reason of the earlier record or that he used the record to override the fact that the appellant had successfully completed his period on parole without further offending.

281 The appellant notes that, although the scheme employed to obtain the passports and license was “sophisticated and complex”, they would inevitably have led back to him if they were investigated. He points out that the offences occurred prior to the 9/11 attack upon the United States and that since that event the “landscape had changed”. He points out that the passport laws have now been tightened. Similarly the danger to Australia had been reduced by the change of laws and protocols for obtaining passports. He submits that the seriousness of the offences should be considered at the time of the offending and not by current circumstances.

282 However the only relevant statement made by the Judge was:

283 Ground 48 complains that the Judge erred in not receiving relevant facts including: that the appellant was not the principal offender in the passport offences or involved in offences committed by persons holding the passports; the appellant held an Australian passport; the appellant held a NSW driver’s licence; the offences were inexorably linked to him and would have inevitably been detected; the appellant did not use the passport for travel; the appellant did not use the driver’s licences to drive; he did not use the passports or licences to commit other offences.

284 The appellant asserts that the s10(1)(b) offences were less serious than the s10(1)(a) offences and yet he was given the same penalty. He submits that there was no evidence that he was involved in the criminal purpose of the persons using the passports. Both offences carried the same maximum penalty and it is clear that the Judge treated them as being part of the same criminal enterprise whatever that was. Because the appellant’s explanation was not accepted there was no evidence of what his criminal purpose was for making the false statements. The Judge was not required to assume that criminality involved in one type of offence was any less serious than in the other type. In any event the sentence for each offence was only 9 months as against a maximum penalty of two years so it could not be said that the penalties for any of the offences was excessive.

285 The appellant under this ground also asserts that the Judge must have taken into account an allegation, said to be erroneous, in the Crown submissions on sentence that the respondent committed the offence in Count 12 while on bail. The appellant accepts that there was no reference to this fact made by the Judge during the sentencing proceedings or in his remarks, yet asserts that the Judge was referring to this fact in the following passage in the sentencing remarks in the phrase underlined:

he considers that the laws prohibiting what he did somehow did not apply to him

286 The fact that the appellant might have been entitled to hold a passport and did hold one or that he was entitled to hold a driver’s licence and did hold one is completely irrelevant in my opinion as a matter of mitigation. Nor is the fact that he did not use the passport for travel or the licences to drive a matter of any significance. Although the appellant rightly submits that the offences involving the licences were not in the worst category of an offence under s 184, the Judge did not say they were and the sentence of 6 months on each as against a maximum penalty of 7 years does not suggest that he treated them as being of the most serious nature. Although it is not asserted that the appellant was using the passports to commit crimes, he was not sentenced on the basis that he was. He was sentenced for the criminality involved in obtaining or assisting others to obtain passports. The fact that the offences might have been linked to the appellant and traced to him is not a matter of mitigation particularly when the appellant accepts that there was a degree of sophistication and planning involved in the offences.

287 In my opinion there is no error shown in the exercise of the Judge’s sentencing discretion. The sentences were in my view moderate having regard to the totality of the appellant’s criminality and considering that they were imposed after trial and in light of the appellant’s lack of remorse. I propose that the application for leave to appeal be granted but the appeal dismissed.

**********

26/03/2007 - Typographical error - Paragraph(s) [198]

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Citations

Clarkson v R [2007] NSWCCA 70

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CITATION:	Clarkson v Regina [2007] NSWCCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	12 February 2007
JUDGMENT DATE:	22 March 2007
JUDGMENT OF:	Beazley JA at 1; Sully J at 252; Howie J at 253
DECISION:	1. Appeal against conviction dismissed;; 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed.
CATCHWORDS:	Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists
LEGISLATION CITED:	Crimes Act 1914 (Cth) Pt IB Div 6; ss 16, 16G, 20B, 20BA, 428E(1)(b) Crimes Act 1900 (NSW) s 184 Crimes Act 1928 (Vic) s 426 Crimes Act 1958 (Vic) s 393 Crimes (Administration of Sentences) Act 1999 (NSW) s 265 Criminal Code Act 1995 (Cth) Criminal Appeal Act 1912 (NSW) s 5A Criminal Code (WA) s 631 Criminal Lunatics Act 1800 (UK) Criminal Procedure Act 1986 (NSW) s 21(2), 29 Evidence Act 1995 (NSW) s 98, 101(2), 108 Jury Act 1977 (NSW) s 22 Mental Health Act 1990 (NSW) s 3, 4, 10 Mental Health (Criminal Procedure) Act 1990 (NSW) Pt 2; ss 5, 6, 7, 8, 10, 11, 14, 16, 17, 18, 22 Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW) Passports Act 1938 (Cth) ss 10(1)(a), (b) Police Act 1990 (NSW) s 204 Representation of the People Act 1949 (12, 13 and 14 Geo 6, c.68) s 47(2) Voters Act (UK) s 2 Road Transport (Driver Licensing) Act 1998 (NSW) s 22
CASES CITED:	Constitution of Australia s 80 Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29 Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62 Johnson v The Queen (2004) 78 ALJR 616 Kesavarajah v The Queen (1994) 181 CLR 230 gatayi v The Queen (1980) 147 CLR 1 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Abusafiah (1991) 24 NSWLR 531 R v Bezan (2004) 147 A Crim R 430 R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61 R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319 R v Hurley and Murray [1967] VR 526 R v Loughnan [1981] VR 443 R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 R v Mostyn (2004) 145 A Crim R 304 R v Presser [1958] VR 45 R v Pritchard (1836) 173 ER 135 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v Rogers (1996) 86 A Crim R 542 R v Sexton (2000) 116 A Crim R 173; [2000] SASC 276 R v Studenikin (2004) 60 NSWLR 1 R v Todd [1982] 2 NSWLR 517 Re Jayden [2007] NSWCA 35 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Verma v R (1987) 30 A Crim R 441 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645
PARTIES:	Mark Alfred Clarkson (Appellant) Regina (Commonwealth) (First Respondent) Regina (New South Wales) (Second Respondent)
FILE NUMBER(S):	CCA 2006/1693
COUNSEL:	In person (Appellant) P Roberts SC; L Crowley (Regina)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Regina)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/11/0900; 02/11/1109
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	26 November 2004