Ishac v The Queen

[2011] NSWCCA 107

Court of Criminal Appeal

New South Wales

Case Title:

Ishac v R

Medium Neutral Citation:

[2011] NSWCCA 107

Hearing Date(s):

8 March 2011

Decision Date:

05 May 2011

Jurisdiction:

Before:

McColl JA at 1
RS Hulme J at 52
Hislop J at 53

Decision:

1 Grant the applicant leave to appeal out of time in respect of his conviction.
2 Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against conviction on charge of being an accessory before the fact to do an act with intent to pervert the course of justice - giving advice on falsifying community service order time sheets when application for revocation of community service order extant - whether conviction good in law

CRIMINAL LAW - appeal against conviction following plea of guilty - circumstances in which conviction may be set aside discussed

CRIMINAL LAW - agreed facts used for sentencing - relevance to integrity of conviction

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Independent Commission Against Corruption Act 1988 (NSW)
Occupational Health and Safety Act 2000 (NSW)
Telecommunications (Interception and Access) Act 1979 (NSW)
Crimes (Administration of Sentences) Regulation 2008

Cases Cited:

Chow v Director of Public Prosecutions (DPP) (1992) 28 NSWLR 593
Einfeld v R [2008] NSWCCA 215; (2008) 71 NSWLR 31
Gas v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198
John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338.
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
O'Neill v R [1979] 2 NSWLR 582
R v Chiron [1980] 1 NSWLR 218
R v Crowley [2004] NSWCCA
R v Falls [2004] NSWCCA 335
R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472
R v Murphy [1965] VR 187
R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174;
R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182
R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
R v SL [2004] NSWCCA 397
R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533
R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229
Tourni v R [2010] NSWCCA 317

Texts Cited:

Category:

Principal judgment

Parties:

Hitcham (aka Michael) Ishac - Applicant
The Crown - Respondent

Representation

- Counsel:

Counsel
J Trevallion - Applicant
V Lydiard - Respondent

- Solicitors:

Solicitors
P McGirr - Applicant
Solicitor for Public Prosecutions - Respondent

File number(s):

2008/20422

Decision Under Appeal

- Court / Tribunal:

- Before:

Sorby DCJ

- Date of Decision:

27 November 2009

- Citation:

R v Ishac

- Court File Number(s)

2008/11/1348

Publication Restriction:

Judgment

1. McCOLL JA: Hitcham Ishac, the applicant, seeks leave to appeal out of time in respect of his conviction for an offence of being an accessory before the fact to do an act with intent to pervert the course of justice contrary to s 319 and s 346 of the Crimes Act 1900 (NSW) (the "Crimes Act"). That conviction followed the applicant's guilty plea in respect of three charges. The applicant does not challenge the other two convictions but, in the event that his s 319 conviction is quashed, he seeks leave to appeal against his sentence so that it may be adjusted to reflect that fact.

1. The applicant's argument, in short, is that although he pleaded guilty, the facts underlying his conviction did not disclose an offence of perverting the course of justice and, accordingly he could not have been guilty of an offence.

Background

1. The Department of Corrective Services employed the applicant as a Probation and Parole officer within the Bankstown Probation and Parole District Office (the "BPPS"). The Commissioner of Corrective Services assigned the role of the Community Service Organiser to him pursuant to s 111 of Crimes (Administration of Sentences) Act 1999 (NSW) (the "Administration of Sentences Act") . In this role together with two assistants, he supervised all offenders referred to the BPPS for the implementation of community service orders ("CSOs").

1. In May 2005 the Independent Commission Against Corruption ("ICAC") commenced an investigation in relation to the alleged conduct of the applicant in his relationship with offenders assigned to the BPPS and the management of CSOs. In order to undertake this investigation there was extensive use of covert physical and electronic surveillance. This included a number of telecommunication interceptions pursuant to warrants under the then Telecommunications (Interception and Access) Act 1979 (NSW) for offences contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW).

1. In February 2006 Mr Brian Khouzame was sentenced to perform 200 hours of community service for an offence of driving while disqualified. He received another CSO the same day which, on appeal was reduced so that, in total, he had to perform 250 hours of community service. He was ordered to attend BPPS. The applicant was his CSO organiser. Mr Khouzame was ordered to perform his community service orders at St Nicholas Antiochian Orthodox Church at Punchbowl under the supervision of the church parish priest, Father Elias Khoury.

1. Mr Khouzame undertook little of his community service. He made an arrangement with Father Khoury to obtain false certification of his compliance with his CSOs. The applicant knew of that arrangement. After Mr Khouzame was warned in writing by BPPS about his non-compliance with his CSOs, the applicant filed an application in the Local Court for the revocation of Mr Khouzame's CSOs. At the same time he warned Mr Khouzame of that fact and urged him to see Father Khoury "to get it filled out". It was common ground at the sentencing proceedings that "it" was a reference to Mr Khouzame's CSO timesheet. Father Khoury admitted at the ICAC hearings that he had falsely certified Mr Khouzame's CSO timesheet.

1. The applicant engaged in similar conduct in relation to a Mr John Tourni who he encouraged to falsify his CSO timesheet even though he had not completed his CSO. The applicant's conduct with respect to Mr Tourni was the subject of the first charge against the applicant referred to below, namely that he did an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act. Mr Tourni pleaded guilty to, relevantly, one charge of perverting the course of justice contrary to s 319 of the Crimes Act. He sought leave to appeal his conviction on the ground that his conduct, as particularised in the Court Attendance Notice ("CAN") under which he was charged, did not constitute a breach of s 319 of the Crimes Act, and an order that his conviction on that charge be quashed. Remarks made in the course of the judgment dismissing Mr Tourni's appeal appear to have encouraged the applicant to bring the present application: see Tourni v R [2010] NSWCCA 317.

1. The ICAC conducted a number of compulsory examinations of witnesses, including the applicant. He first gave evidence on 20 March 2006 that he had no knowledge of, or involvement in, any wrongdoing associated with the administration of CSOs. In later evidence, on 11 April 2006, he admitted that he had previously given false evidence.

1. The applicant pleaded guilty at Central Local Court on 11 December 2008 to the following charges:

(a) Do act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW);

(b) Accessory before the fact to do act with intent to pervert the course of justice contrary to ss 319 and 346 of the Crimes Act 1900 (NSW) (the "accessory charge"); and

(c) Giving false evidence to the Independent Commission Against Corruption ("ICAC"), contrary to s 87 of the Independent Commission Against Corruption Act 1988 (NSW).

Four similar matters were taken into account on a Form 1.

1. The CAN specified the time and date and place of the accessory charge as between 19 February and 25 February 2006 at Sydney. The short particulars to the accessory charge as they appeared in the CAN stated:

"That Brian Khouzame between 19 February 2006 and 25 February 2006, at Sydney in the State of New South Wales did create a false Community Service Order time sheet with intent thereby to pervert the course of justice and Michael Ishac, before the said serious indictable offence was committed in the manner aforesaid, between 14 February 2006 and 25 February 2006 at Sydney in the State aforesaid, did incite, procure, counsel or command the said Brian Khouzame to commit the said serious indictable offence in the manner aforesaid."

1. The applicant was committed for sentence to the District Court on 11 December 2008. The sentence proceedings took place before Sorby DCJ in the District Court on 18 September 2009.

1. A document setting out Agreed Facts signed by the applicant's and the Crown's legal representatives was tendered at the time of the plea in the Local Court and was relied on in the sentencing proceedings. The Agreed Facts relevantly stated:

"9. Initially each of Mr Ishac, Mr Tourni, Mr Khouzame and Father Khoury denied any knowledge or involvement in the matter. After they were made aware at a Public Hearing of the electronic surveillance gathered by the Commission they made admissions of their involvement in obtaining and utilising falsely certified CSO timesheets and providing false and misleading evidence to the Commission.
....

Count 2 - Accessory before the facts to Do Act with Intent to Pervert the Course of Justice

42. On 16 December 2004 at Sutherland Local Court Brian Khouzame was sentenced to perform 200 hours of Community service for an offence of driving whilst disqualified (on 18 November 2004). On that same day Khouzame received a further Community Service order for an additional 150 hours for breaching a bond. This total sentence was reduced on appeal so that Khouzame was ordered to perform 250 hours of Community service.

43 Khouzame was ordered to attend Bankstown Office of Probation and Parole. On 28 July 2005, Khouzame attended 2 hours induction and received two hours credit to his timesheet for doing so. Michael Ishac was Khouzame's CSO organiser. Khouzame was ordered to perform his Community Service at the St Nicholas Church at Punchbowl under the supervision of Father Elias Khoury. He was instructed to perform general yard maintenance at the church and to work from 8.30 to 3.30pm on Fridays commencing on 29 July 2005.

44. By 22 September 2005 Khouzame had not performed any additional community service work and was sent a warning letter by the Administrative Assistant at Bankstown Probation and Parole.

45. On 15 February 2006 Khouzame still had not completed any C ommunity Service work and at 9.57am Michael Ishac telephoned Brian Khouzame and warns him that there is a crackdown within the Bankstown office on people not performing their Community Service. Ishac said: '... they are checking who would be there and they've gone around last week and they saw that nobody was there, they've looked up, uhm like I've had your file at the bottom of my desk so nobody would see it for weeks you know what I mean, for months actually'. Ishac informed Khouzame that a Revocation Report had been lodged against him and that he would have to return to court on 2 2 March 2006. Ishac urges Khouzame to go and see Father Khoury. He said ' You still have a month to get it filled out'.

46 The OIMS database for Mr Khouzame showed a document type being 'FTWAWD', which is an acronym for 'failure to work as directed application' and is commonly referred to as a revocation application. Mr Ishac was shown as the author of that report on 15 February 2006 at a time shortly prior to his telephone conversation with Mr Khouzame. Mr Ishac had told the ICAC that he was responsible for filing the Revocation Report with the Court.

47. After a further conversation on 17 February between Khouzame and Ishac concerning Khouzame meeting Father Khoury, Khouzame telephoned Ishac on 21 February 2006. Khouzame tells Ishac that he had seen Father Khoury that morning and that Father Khoury '... already marked me off for two days' . Shortly after Ishac spoke to Khouzame in another telephone conversation and said, '... Like from now on, like put all the dates down on the sheet and just every time - just don't do it all in one go, just counting one day. Put all the dates, Monday to Friday. I've worked it out, up until you expire you'll just finished, you know what I mean ... Put 8 hours down for each day ... Then like what I'll do is I'll call the court a week before ,a few days before and say, "look since I've put in the revocation, I've told him he's going back to court. The blokes gone every single day ... I want to withdraw it". They'll withdraw it.'

48. Mr Khouzame's time sheet, which is similar in format to that of Mr Tourni, shows that he had performed CSO work on 20 February 2006 and 21 February 2006 between 9am and 3pm and on 22 February and 23 February between 8.30am and 3.30pm. It indicates a commencement time of 8.30am on 24 February but no finishing time. Father Khoury has signed for each of the commencement and finishing times. Mr Khouzame has signed each entry on the time sheet. The time sheet is annexed to these facts.

49. At most Mr Khouzame had worked at most half an hour for each day nominated on the falsely certified time sheet. In his evidence to the public inquiry on 12 April 2007, Father Khoury conceded that he had falsely certified Mr Khouzame's work hours, although he had worked a 'c ouple of hours' at the church.

50. The falsification of Brian Khouzame's CSO time sheet was for the purpose of evading the terms of the CSO. Michael Ishac rendered advice, encouragement and direction about the way in which the document could be falsified." (emphasis in original)

Copies of the falsely certified CSO timesheets were annexed to the Agreed Facts.

1. The Crown Prosecutor handed the sentencing judge submissions to be taken into account on sentence. They included the following:

"In relation to the assistance which the offender provided Brian Khouzame in perverting the course of justice, this included his advice on how to have the time sheets falsified and his encouragement of Khouzame to visit Father Khoury to have this done with the objective of avoiding an unfavourable Revocation Report being considered by the sentencing court."

1. On 27 November 2009 the sentencing judge imposed the following sentences on the applicant:

(a) One act of pervert the course of justice contrary to s 319 of the Crimes Act 1900, maximum penalty 14 years, to a non-parole period of 12 months commencing on 27 May 2010 and concluding May 2011, with a further parole period of 10 months to commence on 27 May 2011 and to conclude on 26 March 2012.

(b) For an offence of accessory before the fact to doing an act with intent to pervert the course of justice contrary to ss 319 and 346 of the Crimes Act 1900, maximum penalty 14 years imprisonment, a term of imprisonment of 10 months commencing on 27 January 2011 and concluding on 26 November 2011.

(c) For an offence of give false evidence to the Independent Commission Against Corruption (ICAC), contrary to s 87 of the Independent Commission Against Corruption Act 1988 , maximum penalty 5 years imprisonment, a sentence of 6 months imprisonment commencing on 27 November 2009 and concluding on 26 May 2010.

1. In sentencing the applicant, the sentencing judge read the Agreed Facts set out above onto the record.

Applicant's submissions

1. The applicant submits that the act particularised in the CAN as an act of being an accessory before the fact to perverting the course of justice, is not in fact an offence. This is because Mr Khouzame's intention, as stated in the CAN, was "to create a false Community Service Order timesheet with intent thereby to pervert the course of justice" and the applicant's particularised criminal act was to "incite, procure, counsel or command" Mr Khouzame to commit that offence. He argues that the defeat of the revocation order was a consequential intention of Mr Khouzame's original intention to defeat or evade the CSO.

1. The applicant submits that the offence of perverting the course of justice for which s 319 provides, does not extend to an act done in the course of an offender's sentence - even an act of falsifying a document claiming a person has completed a CSO - because it is not an act involving "the administration of the law" as defined in s 312 of the Crimes Act.

1. The applicant argues that once a Court sentences an offender to a CSO and the offender has signed an undertaking to comply with that order, the Court's jurisdiction and judicial processes are complete. The Probation and Parole Service, a government body, then conducts the administration and overseeing of the performance of the CSO.

The Crown's submissions

1. The Crown submits that the charge against Mr Khouzame of an offence contrary to s 319 of the Act was good in law, and hence the accessory charge was also good in law.

1. The Crown submits that the intention with which Mr Khouzame did the act of creating a false CSO time sheet was not particularised in the CAN and, accordingly, it was necessary to look at the Agreed Facts underlying the s 319 charge against him used on the applicant's sentencing. The Crown submits that it is clear that it was with the court appearance on 22 March 2006 in mind (see Agreed Fact [45]) that the applicant urged Mr Khouzame to go and see Father Khoury and falsify the CSO timesheets so that the process of revocation of Mr Khouzame's CSOs that had been commenced would be circumvented.

1. The Crown submits that this conduct was within the scope of s 319 as it was directed to undermining the capacity of the Local Court to adjudicate upon the revocation proceedings which had been commenced because of Mr Khouzame's failure to perform his CSO.

Legislative Framework

1. The following sections of the Crimes Act are relevant:

312 Meaning of "pervert the course of justice"

A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law.

319 General offence of perverting the course of justice

A person who does any act, or makes any omission, intending in any way to pervert the course of justice, is liable to imprisonment for 14 years.

346 Accessories before the fact-how tried and punished

Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.

1. It is also relevant to understand the provisions dealing with community service orders. A CSO is one of a number of sentencing options which operate as an alternative to full-time imprisonment under the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Procedure Act"). The CSO requires an offender to perform unpaid work in the community for a specified number of hours: Tourni v R (at [11]) per Fullerton J (Simpson and RA Hulme JJ agreeing). The provisions dealing with Community Service orders are found in Part 2, Div 3 (Non-custodial alternatives), of the Sentencing Procedure Act, s 8 of which relevantly provides:

" 8 Community service orders

(1) Instead of imposing a sentence of imprisonment on an offender, a court may make a community service order directing the offender to perform community service work for a specified number of hours.

...

(4) This section is subject to the provisions of Part 7."

1. Part 7 of the Sentencing Procedure Act provides

   "Part 7 Sentencing procedures for community service orders

Division 1 Preliminary

84 Application

This Part applies in circumstances in which a court is considering, or has made, a community service order.

85 Definitions

...

'offender's obligations' under a community service order means the obligations that the offender has under section 109 of the Crimes (Administration of Sentences) Act 1999 as a consequence of the making of the order.
'period' of a community service order means the period within which the community service work to be performed under the order must be completed.
Division 2 Restrictions on power to make community service orders

86 Suitability of offender for community service work

(1) A community service order may not be made with respect to an offender unless the court is satisfied:
(a) that the offender is a suitable person for community service work, and
(b) that it is appropriate in all of the circumstances that the offender be required to perform community service work, and
(c) that arrangements exist in the area in which the offender resides or intends to reside for the offender to perform community service work, and
(d) that community service work can be provided in accordance with those arrangements, and
(e) (Repealed)
(2) In deciding whether or not to make a community service order, the court must have regard to:
(a) the contents of an assessment report on the offender, and
(b) such evidence from a probation and parole officer as the court considers necessary for the purpose of deciding whether to make such an order.
(3) A court may, for any reason it considers sufficient, decline to make a community service order despite the contents of an assessment report.
(4) A court may make a community service order only if an assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person for community service work.
(5) If a court makes a community service order in respect of an offender, the offender must, as soon as practicable (having regard to sections 92 and 93) after the order is made, sign an undertaking to comply with the offender's obligations under the order. If the offender refuses to sign such an undertaking, the offender may be brought before the court and the court may revoke the community service order and impose such other sentence as it considers appropriate." (emphasis added)

1. The Probation and Parole Service administers the community service order system in accordance with Pt 5 of the Administration of Sentences Act which relevantly provides:

" 108 Conditions governing community service work

A community service order is subject to the following conditions:

(a) the standard conditions imposed by the regulations,

(b) any additional conditions imposed by the sentencing court.

109 Obligations of offender

The obligations of an offender under a community service order are:

(a) to comply with such requirements of this Part and the regulations as apply to the offender, and

(b) to comply with the requirements of any conditions to which the offender's community service order is subject ...

110 Duration of community service order

(1) Unless sooner revoked , a community service order remains in force:

(a) until the offender has performed community service work in accordance with the offender's obligations under the order for the required number of hours, or

(b) until the expiry of the relevant maximum period, or

(c) in the case of a community service order that, under the Act under which it is made, can be satisfied by the payment of a fine, until the order is satisfied in accordance with that Act,

whichever first occurs.

(2) This section is subject to section 114.

111 Assignment of officer by Commissioner

On receiving notice of the making of a community service order, the Commissioner must assign a probation and parole officer or, if the regulations so provide, a person other than a probation and parole officer, to administer the order.

112 Performance of community service work

(1) An offender:

(a) must perform, for the required number of hours, such community service work as the offender's assigned officer directs, and

(b) while performing that work, must comply with the directions of the offender's assigned officer and of the offender's community offender services field officers from time to time.

...

(3) Any work that the offender is directed to perform must be performed by the offender:

(a) at such times as the offender's assigned officer directs, and

(b) in such manner as is satisfactory to the offender's assigned officer....

115 Revocation of community service orders

(1) An application for the revocation of an offender's community service order may be made to the sentencing court, to a court of like jurisdiction or to a court that is superior to the sentencing court.
(2) The application may be made:

(a) by the offender's assigned officer, on the grounds that the offender has failed, without reasonable excuse, to comply with the offender's obligations under the order, or

(b) by the offender, or by the offender's assigned officer, on the grounds that it would (having regard to circumstances that have arisen since the relevant community service order was made) be in the interests of justice to revoke the order.

...
(3) If satisfied that the applicant has established the grounds on which the application is made, the court may revoke the offender's community service order and (if it considers it appropriate to do so) deal with the offender in any manner in which it could have dealt with the offender had the order not been made.
(4) An offender on whom a penalty is imposed as a consequence of the revocation of a community service order under this section has the same rights of appeal as if the penalty had been imposed when the offender was convicted of the offence to which the penalty relates.
(5) A court that revokes an offender's community service order under this section must cause notice of the revocation to be sent to the offender's assigned officer.
(6) For the purposes of this section:

(a) failure by an offender to perform the required number of hours of community service work under a community service order within the relevant maximum period for the order is taken to constitute failure by the offender to comply with the offender's obligations under the order, and

(b) failure by an offender to comply with the offender's obligations under one community service order (the primary failure) is taken to constitute failure by the offender to comply with the offender's obligations under every other community service order that is in force when the primary failure occurs.

116 Summonses and warrants for attendance

(1) The court to which an offender's assigned officer makes an application:

(a) for the extension of the period for which the offender's community service order is to remain in force, or

(b) for the revocation of the offender's community service order,

may call on the offender to appear before it.

(2) If the offender fails to appear, the court may:

(a) issue a warrant for the offender's arrest, or

(b) authorise an authorised officer to issue a warrant for the offender's arrest. ..." (emphasis added)

Consideration

1. The applicant appears to accept that if Mr Khouzame's intention had been to avoid the risk of his CSO being revoked that would constitute the offence of perverting the course of justice contrary to s 319, then his actions in inciting, procuring, counselling or commanding him to do so would constitute the offence for which he was convicted. In my view, for the reasons which follow, that was Mr Khouzame's intention.

Setting aside a conviction following a guilty plea

1. The Crown did not object to the applicant pursuing a course which was effectively an attempt to withdraw his guilty plea. No doubt that is because if a guilty plea is entered as a result of a mistake or "other circumstances affecting the integrity of the plea as an admission of guilt", courts will readily grant leave to withdraw it: Chow v Director of Public Prosecutions (DPP) (1992) 28 NSWLR 593 (at 599) per Kirby P; see also R v Murphy [1965] VR 187.

1. Where an accused person has pleaded guilty, he or she is thereby taken to have admitted to being guilty of the offence as charged "and no more": O'Neill v R [1979] 2 NSWLR 582 (at 588) per Moffitt ACJ, (at 596) per Begg and Cantor JJ. The plea is to be taken as an admission of the "essential legal ingredients of the offence" ( Chow (at 605) per Kirby P). Indeed as Giles JA said (with the agreement of Buddin J and Smart AJ) in R v SL [2004] NSWCCA 397 (at [51]) "[t]he plea itself is a cogent admission of the ingredients of the charge".

1. A conviction following a plea of guilty will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge, did not intend to admit he was guilty of it or if, upon the facts admitted by the plea, he could not in law have been guilty of the offence: Meissner v R [1995] HCA 41; (1995) 184 CLR 132 (at 157) per Dawson J; see also s 6, Criminal Appeal Act 1912 (NSW) and R v Chiron [1980] 1 NSWLR 218 (at 235) per Lee J; R v Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533 (at [27]) per Spigelman CJ (Newman and Adams JJ agreeing). The circumstances in which a Court will set aside a conviction, notwithstanding a plea of guilty were conveniently summarised in R v Van [2002] NSWCCA 148; (2002) 129 A Crim R 229 (at [48]) per Greg James J (Hodgson JA and Kirby J agreeing).

1. Any miscarriage of justice is to be found in the circumstances in which the applicant came to enter his plea. The question in a case where the applicant seeks to challenge a conviction following a plea of guilty is not guilt or innocence as such, but the integrity of the plea. The material before the appellate court must show there is a real question about the guilt of the accused: R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 (at [33]) per Spigelman CJ (Simpson J and Carruthers AJ agreeing); R v Rae (No 2) [2005] NSWCCA 380; (2005) 157 A Crim R 182 (at [20] - [21], [25]) per Giles JA (Hislop and Rothman JJ agreeing).

1. Finally, it is pertinent to bear in mind Spigelman CJ's observation ( Toro-Martinez at [29]) that "[n]othing is more calculated to bring the criminal justice system into disrepute than to treat it as some form of forensic game."

The function of agreed facts

1. A statement of facts agreed for the purposes of sentencing upon a plea of guilty should extend to every substantial matter agreed between the parties on subjects which may later be said to have been relevant to the decision of an accused person to plead guilty: Gas v R; SJK v R [2004] HCA 22; (2004) 217 CLR 198 (at [43]). Such a statement should support the charge for which the offender is to be sentenced and accord with the offence charged: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174; (at [21]) per Howie J, (Levine and Hidden JJ agreeing). Agreed facts should always be carefully checked by all parties and their legal representatives, and especially by counsel for an offender: R v Crowley [2004] NSWCCA 256 (at [46]) per Smart AJ (Wood CJ at CL and Hidden J agreeing). Neither party can complain if the sentencing judge acts upon their formal agreement as to what are the relevant facts: R v Falls [2004] NSWCCA 335 (at [37]) per Howie J (Dunford J agreeing) .

1. The agreed facts may, in my view, be considered to determine whether the CAN disclosed an offence. To do so is consistent with the approach taken to such an issue in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 as explained in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338. In John Holland , the applicants were ordered to appear before the Industrial Court of New South Wales to answer charges relating to breaches of s 8 of the Occupational Health and Safety Act 2000 (NSW) (the "OH&S Act"). Each invoked the supervisory jurisdiction of the Supreme Court to quash the orders and to prohibit the continuation of the matter in the Industrial Court on the basis that the prosecution charges failed to identify an offence known to law and hence were so deficient in law as never validly to invoke the jurisdiction of the Industrial Court. They relied on Kirk for the proposition that a statement of offence must identify the act or omission which constitutes a contravention of s 8 of the OH&S Act.

1. Spigelman CJ (with whom Beazley JA and Giles JA agreed - the latter adding supplementary reasons) discussed the approach the High Court took in Kirk to determining this issue. As his Honour noted (at [34]), the joint judgment (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Kirk (at [22]) considered the five particulars provided under the equivalent of s 8(1) of the OH&S Act, and three particulars provided under the equivalent of s 8(2) of the OH&S Act but concluded (at [28]) that those particulars were inadequate because they did not identify what measures the Kirk company could have taken but did not take. The joint judgment concluded (at [74]):

"[74] ... Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced ..." (emphasis added)

1. Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order to determine its application. Spigelman CJ rejected that approach (at [56]) describing it as:

"...too narrow an interpretation of [ Kirk ] reasoning. Indeed, it is inconsistent with the reasoning in Kirk which ... analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked."

1. I would add to this observation that it is apparent from Kirk (at [74]) that the question whether acts or omissions constituting an offence are identified sufficiently to found a conviction can be determined as late as the passing of sentence. That approach is consistent with the conclusion in Tourni (at [52]) that where there is a lack of particularity in the terms in which a charge is laid, the Court may have regard to the agreed statement of facts to understand its factual basis.

The offence of perverting the course of justice

1. In R v Rogerson [1992] HCA 25; (1992) 174 CLR 268 (at 280) Brennan and Toohey JJ stated (footnotes omitted):

"The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case. The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice . The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend ... erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it , denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions ." (emphasis added)

This statement was approved by the majority (Brennan, Deane, Toohey and McHugh JJ) in Meissner v R (at 142).

1. The course of justice (which is synonymous with the expression "the administration of justice") includes the proceedings of judicial tribunals, that is, tribunals having authority to determine the rights and obligations of parties and having a duty to act judicially, but does not include police investigations as such. It begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings: Rogerson (at 276) per Mason CJ; see also (at 283) per Brennan and Toohey JJ; (at 302 - 304) per McHugh J. The course of justice ends "when the rights and liabilities of the parties have been finally determined and declared after 'an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined' " (emphasis added): Rogerson (at 304) per McHugh J.

1. The applicant placed great weight on Einfeld v R [2008] NSWCCA 215; (2008) 71 NSWLR 31. That case concerned the making of false statutory declarations in relation to offences committed under transport legislation which provided for penalty notices to be issued. The penalty notices were an administrative procedure for the imposition and recovery of penalties as an alternative to court proceedings in relation to certain offences: Einfeld (at [28]). At issue in the proceedings was whether the offence of perverting the course of justice under s 319 of the Crimes Act, by reason of the inclusion of the expression "the administration of the law" in s 312 extended to conduct intended in any way to obstruct, prevent or defeat a government body in the exercise of its functions in applying and enforcing any of the laws of the State: Einfeld (at [21]). The Court (Bell JA, Hulme and Latham JJ) found (at [77]) that the phrase "the administration of the law" in s 312 should not be given its literal meaning so as to expand the parameters of conduct caught by s 319 of the Act, but (at [99]) should be understood to mean "the administration of the civil and criminal law by Courts and tribunals." The Court noted (at [90]):

"We do not see how the expression 'the administration of the law' could be interpreted to apply to the police investigation of crime without also applying to the activities of other public officials whose functions include applying and enforcing the law of the State."

And (at [97]):

"In our opinion, the words 'the administration of the law' in s 312 are not to be accorded their literal meaning, which...we take to include the exercise by a government body of its functions in applying and enforcing the law of this State. That meaning would result in a very wide range of conduct, including conduct that was not previously unlawful, being criminalised as a perversion of the course of justice. This result is a reason to consider that the literal meaning of the words may not be the ordinary meaning to be given to the expression in this statutory context."

1. To recapitulate, the applicant's submission, in short, is that the act of falsifying a document claiming a person has completed a CSO during the period when the CSO is being administered by the BPPS, a government body, is not an act involving the "administration of the law".

1. A similar issue arose in Tourni . In that case the CAN charged:

"That John Tourni between 22 February 2006 and 28 February 2006, at Sydney in the State of New South Wales did create a false Community Service Order time sheet with intent thereby to pervert the course of justice."

1. Mr Tourni pleaded guilty and originally sought only leave to appeal against his sentence. However the Court "raised with counsel whether the charge as particularised in the CAN was sufficient to constitute a breach of s 319, whether on the basis of the facts tendered on sentence, the facts found for sentencing purposes, or both": Tourni (at [5]).

1. The Court's concern appears to have stemmed from the fact that "the intention with which the applicant did that act [particularised in the CAN] is not further particularised in the charge": see Tourni (at [48], [50]). Moreover, the written submissions the prosecutor relied upon in the sentence proceedings, which appear to have been given to the sentencing judge, failed correctly to identify the gravamen of the offence and erroneously drew his Honour's attention to Mr Tourni's "intention to avoid the terms of the CSO imposed the previous year": Tourni (at [58], [60]). It was that intention to which the sentencing judge referred in his sentencing remarks and it was on that intention that the sentencing judge proceeded to sentence: Tourni (at [62]).

1. However the detailed facts said to constitute the offence were tendered on sentence and attached to the sentencing remarks, although not otherwise referred to in the sentencing remarks. Those facts "place[d] it beyond any doubt that the applicant's intention at the time he created the false time sheets was to reduce the risk that a custodial sentence would be imposed when, within days of creating the documents, he was due to appear in the Fairfield Local Court for sentence": Tourni (at [52]).

1. Fullerton J concluded (at [64]) that having regard to the facts that the plea of guilty was an acceptance by Mr Tourni of the essential elements of the charge and that the facts relied upon as establishing the offence were agreed and set out in considerable detail Mr Tourni's conduct in falsifying the time sheets and what he intended to achieve by so doing, the challenge to the conviction on the ground that the offence charged was not an offence known to law was not made out.

1. The observations made in Tourni from which the present applicant sought to gain comfort were:

"50 Although the lack of particularity of the critical element of intent is not determinative of the conviction appeal, it gives rise to the question whether the charge to which the applicant pleaded guilty, as particularised, was an offence at all. On the applicant's case that question arises in one of two ways. Either the lack of particularity resulted in the failure by the prosecution to identify, within the scope of s 319, 'the course of justice' the applicant intended to pervert by his admitted acts in falsifying the time sheets (which in turn led the judge to accept a plea of guilty when no offence had been committed), or the prosecution actually led the sentencing judge into error by inviting him to sentence the applicant on the basis that he intended to pervert the proper performance of those who administer CSOs so as to avoid the effect of a sentence that had been imposed upon him by a sentencing court, when that conduct is beyond the scope of the section.

51 As to the latter proposition , it was common ground on the appeal that the scope of what is comprehended by the concept of perverting the course of justice in the extended definition in s 312 does not include obstructing, preventing, perverting or defeating the statutory function exercised by the Probation and Parole Service of overseeing and administering the community service orders referred to it by a sentencing court (see Einfield v R [2008] NSWCCA 215 at [97] - [99]). However, were enforcement proceedings to have been commenced by the Probation and Parole Service which may have resulted in the revocation of the CSO in the Local Court, and the applicant's conduct was intended to circumvent that process, there is every likelihood that conduct would have been encompassed by the extended definition in s 312. In Einfeld the Court held that the expression 'the administration of law in s 312 is not to be accorded its literal meaning so as would include the exercise by a government of its functions in applying and enforcing the law of this State. Rather, the expression is to be understood as extending only to include the administration of the civil and criminal law by courts and tribunals." (emphasis added)

1. The applicant contended that the passages emphasised demonstrate that the intention the CAN attributed to Mr Khouzame of falsifying a CSO timesheet being an act done in the course of the administration of his sentence could not constitute the offence of perverting the course of justice.

Conclusion

1. In my view the applicant's submissions should be rejected for substantially the same reasons as in Tourni . First, the applicant's guilty plea was an admission of the essential legal ingredients of the offence. Secondly, in my view the Agreed Facts made it apparent that Mr Khouzame's intention in falsifying his CSO timesheet was to avoid the application for revocation of his CSO proceeding in the Local Court; see in particular Agreed Facts [45] - [47]. The applicant's advice to Mr Khouzame was given to assist him to frustrate the application to revoke the CSO by falsifying his CSO timesheet to make it appear as if he had complied with the terms of his CSO. If this was not apparent from the Agreed Facts, it was certainly apparent from the Crown's sentencing submissions: see [13]. These were all matters to which, as I have explained, the Court is entitled to have regard in determining the basis of the applicant's conviction.

1. In other words, enforcement proceedings had been commenced to revoke the CSO in the Local Court, Mr Khouzame's conduct was intended to circumvent that process and the applicant advised him as to how to achieve that result. It was not conduct which merely occurred during the administration of Mr Khouzame's sentence. Rather it was calculated to impair the capacity of the Local Court to consider the application for the revocation of Mr Khouzame's CSO. That jurisdiction had been invoked by the filing of the revocation application in that court: see Agreed Facts [45] - [47]; s 115 Administration of Sentences Act. Mr Khouzame's conduct, in my view, fell within the meaning of perverting the course of justice in s 312 of the Crimes Act as explained in the authorities to which I have referred.

1. It is plain that that was the basis upon which the sentencing judge sentenced the applicant - he having read the agreed facts into the record. The applicant has failed to demonstrate that any miscarriage of justice has occurred. To conclude otherwise would invite the sort of forensic game the Spigelman CJ condemned in Toro-Martinez.

1. I would give the applicant leave to appeal out of time in respect of his conviction, but dismiss the appeal. In those circumstances the application for leave to appeal against sentence does not arise.

1. RS Hulme J : I agree with the orders proposed by McColl JA and with her Honour's reasons.

1. Hislop J : I agree with McColl JA.

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