Kader v Director of Public Prosecutions
[2024] ACTCA 31
•15 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kader v Director of Public Prosecutions |
Citation: | [2024] ACTCA 31 |
Hearing Date: | 20 August 2024 |
Decision Date: | 15 November 2024 |
Before: | Loukas-Karlsson, Baker and Taylor JJ |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – Appeal – where appellant pleaded guilty to perjury and perverting the course of justice – appellant tried twice for sexual offences – juries hung in both trials – appellant gave false evidence in first trial – appellant attempted to convince former wife to support his false evidence – whether primary judge breached De Simoni principle by taking into account the accused’s intention to secure acquittal as an aggravating circumstance on sentence – whether victim impact statement of complainant admissible – whether complainant was a victim of perjury – whether ongoing family court proceedings presented risk of re-offending – breach of De Simoni established – appellant resentenced – no lesser sentence appropriate – appeal dismissed |
Legislation Cited: | Court Procedures Rules (2006) ACT, r 5311 Crimes (Sentencing) Act 2005 (ACT), ss 33, 34B, 47, 49 Criminal Code 2002 (ACT), s 703 Family Violence Act 2016 (ACT) Human Rights Act 2004 (ACT), ss 22 |
Cases Cited: | Berichon v The Queen [2013] VSCA 319; 40 VR 490 DPP v DJK [2003] VSCA 109 |
DPP v Kader (No 6) [2003] ACTSC 363
DPP v Mitchell (No 2) [2023] ACTSC 118
Marinellis v R [2006] NSWCCA 307
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
Ocek v R [2023] NSWCCA 308
R v Timbery [2008] NSWDC 340
R v Bulliman (unreported, NSWCCA, 25 February 1993)
R v De Simoni [1981] HCA 31; 147 CLR 383
R v Iacuone; R v Duffy; R v JR (No 2) [2014] ACTSC 149; 286
FLR 217
R v Loeschnauer [2022] ACTSC 30; 98 MVR 484
R v Mahoney [2004] NSWCCA 138
R v Miller [1995] 2 VR 348
R v Pangallo (1991) 56 A Crim R 441
R v Porter (No 3) [2022] ACTSC 236
R v Swift [2007] VSCA 52; 15 VR 497
Tate v The Queen [2012] ACTCA 50
Tracey v The Queen [2020] ACTCA 51
Parties: Imran Kader (Appellant)
The Director of Public Prosecutions (Respondent)
Representation: Counsel
D Ager (Appellant)
K McCann (Respondent)
Solicitors
Peter Agoth & Associates (Appellant)
The Director of Public Prosecutions (Respondent)
File Number: ACTCA 46 of 2023
Decision Under Appeal: | Court/Tribunal: | ACT Supreme Court |
| Before: | McCallum CJ | |
| Date of Decision: | 1 December 2023 | |
| Case Title: | DPP v Kader (No 6) | |
| Citation: | [2023] ACTSC 363 |
THE COURT:
Overview
| 1․ | In February 2019, Dr Imran Kader (the appellant) was tried before a Supreme Court jury for several sexual offences that he was alleged to have committed against a work colleague (the complainant). The jury was unable to reach unanimous verdicts on any of the charged offences, and the proceedings were listed for retrial. A second jury was also unable to reach unanimous verdicts on those charges. After that second trial, the Director of Public Prosecutions (the Director) declined to proceed further on the indictment. |
| 2․ | During the course of the first trial, the appellant gave false evidence in response to the evidence of the complainant concerning whether his dog was living with him, or his former wife, at the time of the alleged offences. Following the first trial, the appellant attempted to persuade his former wife to make a false statement in the retrial in order to cover up this perjury. The appellant ultimately pleaded guilty to two administration of justice offences, namely one count of perjury, contrary to s 703(1) of the Criminal Code 2002 (ACT), and one count of attempting to pervert the course of justice, contrary to s 713(1) of the Criminal Code. |
| 3․ | On 1 December 2023, McCallum CJ (the primary judge) sentenced the appellant for these offences as follows: (a) Count 1 (perjury): Imprisonment for 9 months, commencing 1 December 2023 and expiring 31 August 2024. (b) Count 2 (pervert the course of justice): Imprisonment for 2 years and 3 months, commencing 1 March 2024 and expiring 31 May 2026. |
| 4․ | These sentences resulted in a total head sentence of imprisonment for two years and six months. Her Honour set a non-parole period of imprisonment for 12 months, commencing on 1 December 2023 and expiring on 30 November 2024: DPP v Kader (No 6) [2023] ACTSC 363 (the Primary Judgment). |
| 5․ | By way of an Amended Notice of Appeal filed on 27 June 2024, the appellant seeks |
leave to appeal against the sentences imposed on the following four grounds:
(a)Her Honour infringed the principle enunciated in R v De Simoni (1981) 147 CLR 387 by sentencing the appellant on Count 1, being a count of perjury contrary to section 703 of the Criminal Code 2002, on the basis that he told lies with the intention of securing an acquittal at trial (Ground A);
(b)Her Honour erred in receiving the victim impact statement of [the complainant in the sexual offending proceedings] dated 13 November 2023, which became Exhibit C in the sentencing proceeding (Ground B);
(c)On the evidence before the Court in the sentencing proceeding, her Honour erred in finding either or both of the following as matters of fact beyond reasonable doubt:
(i)No large cabinet either existed or was in the appellant’s apartment at the time of the alleged sexual offences; and
(ii)That the appellant lied in his evidence that a large cabinet was placed against the wall into which it was alleged he pushed the complainant of the alleged sexual offences, or that it existed at the time of those alleged sexual offences.
(Ground C)
(d)Her Honour erred by taking into account the following irrelevant considerations:
(i)If this Court decides the victim impact statement described in Ground B was correctly received, representations by [the complainant] as to the existence of or compounding of any psychological injury, including post-traumatic stress disorder, and general trauma.
(ii)That, at the time of sentencing, there were family law proceedings between the appellant and [his former wife].
(Ground D)
(e)That the sentence is manifestly excessive (Ground E).
| 6․ | The original Notice of Appeal only particularised one ground of appeal, namely that the sentence imposed by her Honour was manifestly excessive (Ground E). As the Amended Notice of Appeal was filed after the appeal grounds were settled, the appellant requires leave to appeal under r 5311(2) of the Court Procedures Rules 2006 (ACT) (CPR) in respect of the new grounds of appeal. |
| 7․ | The prosecution does not contend that it is prejudiced by the appellant’s late application to amend the Notice of Appeal. Counsel for the Director appropriately accepted that the question of leave ultimately turns on the merits of each of the grounds of appeal. |
| 8․ | The appellant should be granted leave to appeal under r 5311(2) of the CPR. For the |
reasons outlined below, the appellant has established Ground A, but has not established the remaining grounds of appeal. As the error alleged in Ground A was material to the sentence imposed by the primary judge, it is necessary for this Court to resentence the appellant. On resentence, we would impose no lesser sentence than that imposed by the primary judge. Accordingly, the appeal should be dismissed.
The offences
The appellant’s evidence in the first sexual assault trial (the perjury)
9․ The prosecution alleged that the appellant, a Surgical Registrar, and the complainant, a nurse, returned to the appellant’s apartment after their Christmas party on 30 November
2019. The complainant gave evidence that the appellant committed several violent sexual offences against the complainant. She also gave evidence that the appellant had tried to physically prevent her from leaving the apartment by throwing her against a wall near the door of the apartment and momentarily holding her there.
| 10․ | The appellant’s first trial proceeded before McWilliam AJ (as her Honour then was) on 21 February 2022. |
| 11․ | The appellant gave evidence in the trial. In his evidence, the appellant agreed that sexual intercourse had occurred, but maintained that the sexual intercourse was consensual, and that intercourse only ceased when the complainant learned the appellant was married. The appellant denied that he pushed the complainant against the wall and further denied that he prevented the complainant from leaving the apartment. |
| 12․ | Importantly for the present appeal, the appellant gave evidence that the wall that the complainant alleged she was thrown against was obstructed with a large cabinet, as well as items for the appellant’s dog, including bowls and a large tub of food. Photographs of the relevant wall showing these items were tendered on behalf of the appellant. The appellant gave evidence that those items were in the same position on the evening of the alleged sexual assault. |
| 13․ | When this allegation was put to the complainant in cross-examination, the complainant said she did not recall seeing the furniture or dog items, but accepted that she did not look specifically in the direction of the wall. |
| 14․ | In his evidence, the appellant said that throughout 2019, the dog was living with him. He explained that from August 2019 onwards, the dog would occasionally go to visit his then wife, who was then living separately to the offender whilst she completed her medical residency in New South Wales. |
| 15․ | The appellant gave evidence that on the night of the Christmas party, the dog was staying with his wife in New South Wales, but that the dog’s accessories, including its bowls and food, remained with him in Canberra. This evidence was untrue. In fact, at that time, the dog had moved to New South Wales to live permanently with the appellant’s then wife (Count 1: perjury). |
| 16․ | The jury in the first trial were unable to reach a unanimous verdict. A second trial was |
listed for hearing later in 2022.
The appellant attempts to persuade his former wife to lie to police (the attempt to pervert the course of justice)
| 17․ | Police obtained a statement from the appellant’s by-then-former wife (the appellant’s former wife) prior to the second trial. This statement contradicted the appellant’s evidence about the living arrangements of the dog at the time of the alleged offending. The appellant’s former wife said that their dog lived with her in New South Wales from around mid-2019. |
| 18․ | On 29 June 2022, the appellant was provided with a copy of his former wife’s statement to police. Upon receiving those documents, the appellant immediately attempted to contact his former wife to discuss the contents of her statement. |
| 19․ | On 30 June 2022, the appellant’s former wife told the appellant by text that she did not feel comfortable meeting him, but that that he could email her. The appellant responded “ok I’ll send an email but please read it tonight”. In a further text, he added “also please read it by yourself”. |
| 20․ | Later that night the appellant sent his former wife an email (count 2: attempting to pervert the course of justice). In that email, the appellant referred to the questions that police had asked his former wife, and stated: … There were one or two things that I stated in my evidence that wasn't true. The main thing was regarding the dog. I gave the evidence knowing that the only person that could possibly contradict me was you. When the case ended I suspected the prosecution may ask Detective Bakes to contact you to try and find anything they could use against me. That was why I sent you the text not long afterwards asking you to please not speak to the police, even if they threaten to subpoena you because if they don’t know what you were going to say, they wouldn’t ask you to take the stand. |
| 21․ | The email continued: The issue relating to the dog is relatively simple. The complainant alleged that as she was trying to leave the apartment, I grabbed her, pulled her back and threw her into a wall. She then claimed that she got to the door, opened it, yelled out Jet le [sic] me go then I chased her to an Uber. I denied doing this. I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. There was also some dog bowls against the wall. I provided a photo out of one of the videos I had taken of the dog… |
| 22․ | The appellant attached the photos and extracted the relevant part of his crossexamination where he made these allegations. The appellant also provided a summary of the answers that he had provided in cross-examination. |
| 23․ | The appellant then referred to the answers that his former wife had given to police about |
the location of the dog in 2019, and said:
It is very vague and my lawyers want to have a chat to you to basically get you to say yes the plan was for the dog to live in [NSW with the appellant’s former wife] but there was a transition due to anxiety. It would not look suspicious because your answer is non-committal and vague and Detective Bakes didn’t get any specifics. The problem we have is that we don’t want you at the trail [sic]. We want to agree with the prosecution to a set of agreed facts so you don’t have to give evidence.
| 24․ | The appellant then referred to the statement of facts which the prosecution had proposed (namely, that the dog moved to Canberra to live with the appellant’s former wife from mid-2019) and continued: We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. If you turn this email, the fact that I contacted you or the text messages over to the prosecution I will clearly be convicted. If you give a version of events to my lawyers with a transition and no need to take stuff to Canberra then the situation will be the same as last time. My lawyers would try to make submissions to the prosecution to alter the statement of facts and then not call you as a witness. If the prosecution don't agree then you will be called to give evidence. |
| 25․ | Immediately after sending the email, the appellant texted his former wife to let her know that he had sent the email. The appellant also texted “Sorry I should mentioned [sic] in the email that my lawyers told me not to contact you”. |
| 26․ | On the following morning, the appellant sent his former wife a further text message that said: … can I please just meet and speak to you today. I understand that you don’t like me and you want to do what is best for [the son of the appellant and his former wife] but sending me to prison for a crime I didn’t commit is not in anyone’s best interest. I know I have upset you but what you are doing is more than brutal. Assisting the police to convict me disgraceful. I know your parents will tell u to stay away from me but since you spoke to the police you have put yourself in the thick of my problem and I need to discuss the issue. We can go somewhere public with CCTV like maccas so you will be safe and I can’t yell or pressure you. |
| 27․ | The appellant’s former wife attended upon police in New South Wales later that afternoon to report the contact that she had had from the appellant. She subsequently made a statement to police confirming that the dog lived with her in New South Wales in late 2019. |
| 28․ | In the evening of 2 July 2019, the appellant was arrested, charged and released on |
conditional bail.
The second trial
29․ On 19 October 2022, the prosecution filed an updated indictment which included further offences of aggravated perjury and attempting to pervert the course of justice. On
8 November 2022, the prosecution filed a further amended indictment, which averred an ex-officio charge of perjury simpliciter as an alternative to aggravated perjury.
| 30․ | The second trial proceeded on 28 November 2022 before the primary judge. On the first day of the trial, the appellant pleaded not guilty to aggravated perjury (count 6), guilty to perjury simpliciter (count 7) and not guilty to the offence of attempting to pervert the course of justice (count 8). The prosecution accepted the plea of guilty to perjury simpliciter (count 7) in full satisfaction of the aggravated perjury count (count 6). The trial proceeded on both the sexual offences and the charge of attempting to pervert the course of justice (count 8). |
| 31․ | On 9 December 2022, the jury were discharged after failing to reach unanimous verdicts |
on the sexual assault counts and attempting to pervert the course of justice.
The appellant pleads guilty to attempting to pervert the course of justice and confirms plea of guilty for perjury offence
| 32․ | A third trial was listed for 31 July 2023. |
| 33․ | On 14 December 2022, the appellant offered to plead guilty to attempting to pervert the course of justice, provided that the prosecution agreed not to proceed with the remaining charges. The prosecution did not accept this offer. |
| 34․ | However, on 6 June 2023, the prosecution filed a notice declining to proceed with the sexual offence charges and two related transfer charges of common assault. |
| 35․ | The prosecution filed a further amended indictment containing only the two |
administration of justice offences. On 19 July 2023, the appellant confirmed his plea of guilty to perjury simpliciter (count 1) and pleaded guilty to attempting to pervert the course of justice (count 2).
Primary Judgment
36․ The primary judge handed down her reasons for sentence on 1 December 2023, following a sentence hearing on 13 November 2023. In those reasons, the primary judge held as follows:
(i)The dog food and the cabinet were not present in the apartment at the time of the alleged sexual offences: Primary Judgment at [21];
(ii)The appellant’s sworn evidence that it would not have been possible for the complainant to have been pushed against the wall because of the presence of those items was a “deliberate lie” told for the purpose of undermining the complainant’s evidence and securing the appellant’s acquittal: Primary Judgment at [22] and [34];
| (iii) | The offence of attempting to pervert the course of justice constituted coercive behaviour within the meaning of the Family Violence Act 2016 (ACT), such that the matters mentioned in the preamble to the FamilyViolence Act were required to be taken into consideration: Primary Judgment at [30], citing s 34B of the Crimes (Sentencing) Act 2005 (ACT); | |
| (iv) | The lies told by the appellant were not spontaneous; they were premeditated, as was clear by the questions that were put to the complainant in cross-examination: Primary Judgment at [37]; | |
| (v) | The complainant in the sexual offence proceedings was a “victim” within the broad definition of s 49 of the Crimes (Sentencing) Act. The complainant suffered harm as a result of the current offending, due to being cross-examined on a false premise: Primary Judgment at [53]; and | |
| (vi) | The character references describing the offender as “honest” and “trustworthy” should be regarded as unreliable in view of the nature of the offences to which the appellant had pleaded guilty: Primary Judgment at [50]. | |
| 37․ | The primary judge also took into account the appellant’s subjective circumstances, including his disadvantaged background, unemployment and financial reliance on his family, poor mental health and a previous suicide attempt: Primary Judgment at [46] – [49]). | |
| 38․ | The primary judge allowed a discount of 25% for count 1 and a 10% discount for count 2 for the appellant’s pleas of guilty. | |
| 39․ | The primary judge determined that no sentence other than imprisonment would meet the purposes of sentencing. Her Honour held that an intensive corrections order was unsuitable as it would not specifically deter the appellant’s dishonest and manipulative conduct: Primary Judgment at [65]. Her Honour rejected a suspended sentence for similar reasons, also taking into account the risk the appellant may continue to contact his former wife if he were emboldened by a lenient sentence: Primary Judgment at [66] – [67]. | |
| 40․ | The primary judge sentenced the appellant to an overall term of imprisonment for two | |
years and six months. Her Honour set a short non-parole period of imprisonment for one year, in recognition of “the extreme emotional stress” the appellant was under at the time of offending, the powerful incentive he had to recover a relationship with his young son, and the hardship the appellant would experience in custody: Primary Judgment at [70].
Determination
Ground A: Breach of the principle in De Simoni
Submissions
| 41․ | The gravamen of Ground A lies in the following finding of the primary judge in assessing the objective seriousness of the offence of perjury: First, the prosecutor submitted that the lies were calculated to undermine the complainant’s credibility. On the strength of the findings I have made, I agree. The lies were not inconsequential. They were told for the purpose of securing an acquittal. That is a serious matter. (Primary Judgment at [34], emphasis added) |
| 42․ | The appellant’s counsel contended that in finding that the appellant committed the perjury “for the purpose of securing an acquittal”, the primary judge effectively sentenced the appellant for an offence of aggravated perjury, rather than the offence of perjury simpliciter (which the appellant had pleaded guilty to). The appellant’s counsel submitted that in so doing, the primary judge breached the De Simoni principle. |
| 43․ | The De Simoni principle recognises that whilst a sentencing judge is entitled to consider “all the conduct of the accused, including that which would aggravate the offence”, the sentencing judge is not permitted to “take into account circumstances of aggravation which would have warranted a conviction for a more serious offence”: R v De Simoni [1981] HCA 31; 147 CLR 383 at 389 (Gibbs CJ, with whom Mason and Murphy JJ agreed). This principle “operates for the benefit of the offender”, and is “an aspect of the fundamental principle that no one should be punished for an offence of which the person has not been convicted”: Nguyen v The Queen [2016] HCA 17; 256 CLR 656 at [29] (Bell and Keane JJ). |
| 44․ | In her submissions in reply, counsel for the Director noted that the primary judge had |
expressly referred to the De Simoni principle in her reasons. In particular, she observed that in the paragraph which immediately followed the impugned finding, the primary judge stated (at [35]):
The offender submitted that it would be inconsistent with the principles stated in The Queen v De Simoni (1981) 147 CLR 383 to have regard to that consideration. I do not accept that submission. I acknowledge that it is the offender’s case that he was not guilty of the sexual offences. I also acknowledge that, those proceedings having been discontinued by the Director of Public Prosecutions, the offender is presumed innocent of the sexual offences. However, the essence of the offence lies in perverting the process by which those offences were to be tried. Particularly in a word-on-word case where the lies were calculated to damage the credit of one witness over another, that was a serious matter.
45․ Counsel for the Director submitted that it would be unlikely that the primary judge would have sentenced the appellant in breach of De Simoni in circumstances where she had expressly turned her mind to the application of that principle.
Determination
| 46․ | It is an element of the offence of aggravated perjury that the false statement be made with the “intention of procuring the person’s or someone else’s conviction for, or acquittal of, an offence”: s 702 of the Criminal Code. In contrast, the offence of perjury simpliciter under s 703 of the Criminal Code does not include this element of specific intention, and only requires the reckless making of a false statement in a legal proceeding. Accordingly, in the present case, the De Simoni principle precluded the primary judge from taking into account any intent of the appellant to procure his own acquittal of an offence as an aggravating factor on sentence. |
| 47․ | The primary judge made an express finding that the appellant committed the perjury “for the purpose of securing an acquittal”: Primary Judgment at [34]. The sentencing judge also described the appellant’s purpose as a “serious matter”; and found that this purpose was “premeditated”: Primary Judgment at [34] and [37]. We are satisfied, on a reading of the reasons as a whole, that in making this finding, the primary judge (i) found that the appellant’s intent was to procure his own acquittal of an offence, and (ii) took this finding into account as an aggravating factor on sentence. By taking into account the appellant’s “purpose of securing an acquittal”, the primary judge took into account a circumstance of aggravation (that is, the appellant’s intention) which would have warranted conviction for the aggravated offence. |
| 48․ | In so finding, we have not overlooked the fact that the primary judge made express reference to the De Simoni principle. However, it must be borne in mind there were two potential De Simoni ‘pitfalls’ that needed to be avoided. One was the issue which is the subject of the present ground of appeal; that is, the need to avoid taking into account the element of intention which constituted the aggravated form of the offence. The other potential De Simoni ‘pitfall’ was the need to avoid sentencing the appellant for the sexual offences which he had not convicted of (the jury having been discharged after they were unable to reach a unanimous verdict on those counts). The latter risk was particularly acute given the circumstances in which the administration of justice offences arose. |
| 49․ | Read in context, it is apparent that the primary judge’s contemplation of the De Simoni |
principle was addressed to the second pitfall, and not the first. So much is clear from the primary judge’s reference in this paragraph to the appellant having the benefit of a presumption of innocence with respect to the sexual offences, whilst not referring at all to the need to avoid imposing punishment for the aggravated perjury offence.
| 50․ | Before leaving this ground of appeal, we wish to observe that the primary judge did not receive the assistance that she should have received from the parties at first instance, particularly the prosecution. |
| 51․ | As noted above, the prosecution had originally charged the appellant with the offence of aggravated perjury. Before determining to accept the appellant’s plea to the lesser sentence of perjury simpliciter, the prosecution was required to consider whether a sentence for the lesser charge could adequately encompass the criminality of the offending. This in turn required consideration of the differing elements of the offences, in particular, taking into account what was to be ‘lost’ in accepting the lesser plea. |
| 52․ | Having accepted the plea to the lesser offence in full satisfaction of that count of the indictment, it was incumbent on the prosecution to assist the primary judge to properly assess the objective seriousness of that offence, and in particular, to draw the primary judge’s attention to the difference between the elements of the charge which had been originally preferred and that which had ultimately been accepted. The prosecution did not do so. Rather, the impugned finding was made by the primary judge at the urging of the prosecutor. In particular, in the proceedings on sentence, the prosecutor submitted that “the only inference that can be drawn as to why the [appellant] lied … is because he thought it would make it more likely that he would be acquitted…”. |
| 53․ | In his written submissions in reply at first instance, counsel for the appellant referred to the prosecutor’s submission, and warned the primary judge that an acceptance of the prosecution’s contention would breach the De Simoni principle. However, the appellant’s counsel at first instance did not specify the mechanism by which De Simoni would be breached (in particular, no reference was made to the aggravated form of the offence) and neither party engaged with this submission further in oral submissions. |
| 54․ | Nonetheless, although the primary judge did not receive adequate assistance from the parties, it remains the case that on a fair construction of the reasons, the primary judge took into account the intention of the appellant in breach of the De Simoni principle. |
| 55․ | The error alleged in Ground A is established. Counsel for the Director properly accepted |
that the error was material to the sentence imposed and that in these circumstances, it is necessary for this Court to resentence the appellant for the offence of perjury. As the issues raised in the remaining grounds of appeal are relevant to the resentencing exercise, these remaining grounds will be addressed first.
Ground B: The admissibility of the complainant’s victim impact statement
| 56․ | In Ground B, the appellant contended that the primary judge erred in admitting the victim impact statement of the complainant of the sexual assault trial.[1] |
| 57․ | In that victim impact statement, the complainant described the effect that the appellant’s perjury had had upon her. She described being cross-examined “for multiple days”, over “seemingly small, unimportant details”. She said “for every answer I gave, that answer was then questioned, in a never ending cycle of doubting my truth”. The complainant continued: No line of questioning left me more confused than when I was questioned about the dog and his dog bowls that he claimed to have been against the wall. I remember leaving court that day, after having been interrogated for what felt 3 hours over this one issue, just ruminating on this detail. I thought “how could what they’re saying be possibly true, I have no memory of a dog, or anything could even be linked to a dog having ever lived there. Not to mention that I am allergic to dogs, so my body would have very visibly reacted if there had been one living there within the weeks before I was there”. |
| 58․ | The complainant was not permitted to discuss these questions with any other person during her two days of cross-examination. As a result, the complainant was “isolated, unable to talk to [her] friends, [her] psychologist or even the prosecutors about what was going on”. She described her experience as follows: So, every time I gave an answer that reflected my reality and my memory, and then his lawyers questioned my response, I did what any sane person would do, and I questioned my reality. I was aware that they were just trying to make me out to be a liar, but when you are isolated in that situation and having your memory questioned for 8 hours a day, at some point your brain just stops wanting to fight to get your truth out and just accept the version of events they’re putting in front of you. |
| 59․ | The complainant explained that at the time of the cross-examination, she was “at rock bottom” both mentally and emotionally. In the following weeks, her mental health significantly worsened. She struggled to eat and sleep and lost weight. She said that she: … spent months replaying that night in my head willing my brain to think of any new information that might make what they were saying make sense. I started doubting my memories of the night which led to me losing confidence and trust in myself. This doubt spread to all areas of my life every relationship in my life. |
| 60․ | The complainant explained that she now has post traumatic stress disorder from the trial, |
[1] The appellant did not challenge the admissibility of the victim impact statement of his former wife.
and that she is still learning how to “trust herself” again.
| 61․ | The complainant recognised that being challenged during questions was a “part of trials and cross-examination”, but emphasised that her trauma was exacerbated by the appellant’s perjury. She explained: As a result of his perjury, my trauma was compounded, I had to fight to be believed over a dog bowl. All whilst he was the one lying the whole time. |
| 62․ | Both at first instance, and on appeal, the appellant’s counsel objected to the admission of this statement. The appellant’s counsel contended that the complainant’s statement was not admissible as a victim impact statement because the complainant was not a “victim” of either offence, and had not suffered “harm” as a result of the offending. In particular, the appellant’s counsel submitted that the complainant’s harm arose from being cross-examined about the alleged sexual offences, which is a normal aspect of trials, particularly in a “word-on-word” case. The appellant’s counsel contended that it is not possible to divorce the complainant’s harm arising from not believed about the alleged sexual offences, from the harm arising from being cross-examined on matters that the appellant lied about. |
| 63․ | The primary judge rejected this contention, finding (at [53]): I ruled that the complainant in the sexual offence proceedings was a victim within the broad definition of that term in s 49 of the Crimes (Sentencing) Act, as it is clear that she suffered harm in the course of the offending. She was cross-examined on what is now accepted to have been a false premise and as part of a significant attack mounted on her credibility. She was plainly a victim of that conduct. |
| 64․ | The primary judge was correct to so find. |
| 65․ | Section 47 of the Crimes (Sentencing) Act defines a victim as follows: victim, of an offence, means— (a) a person (a primary victim) who suffers harm because of the offence; or (b) if a primary victim dies because of the offence—a person who was financially or psychologically dependent on the primary victim immediately before the primary victim’s death. |
| 66․ | The term “harm” is defined broadly in s 47, and includes “mental injury or emotional suffering (including grief)”. |
| 67․ | The phrase “because of” is also broadly defined in s 47 to mean “as a result of, or in the course of, the commission of the offence”. As Mossop J observed in DPP v Mitchell (No 2) [2023] ACTSC 118 at [11], “[t]here is no qualification” to the broad causal requirement that harm be suffered “because of” the commission of an offence. |
| 68․ | Like other comparative provisions in other States and territories, the purpose of s 47 of |
the Crimes (Sentencing) Act is to:
… give the victim of crime the opportunity to place before the court [their] own statement of the impact of the crime on [them] or [their] family and to ensure that the sentencing judge is informed of the victim’s concerns.
R v Swift [2007] VSCA 52; 15 VR 497 at [6].
| 69․ | In this way, victim impact statements “play an important role” in achieving “social and individual rehabilitation” and in facilitating “the task of judges in imposing just and appropriate sentences”: Director of Public Prosecutions (DPP) v DJK [2003] VSCA 109 at [17] (Vincent JA) and [27] (Eames J); see similarly R v Porter (No 3) [2022] ACTSC 236 at [65] (Loukas-Karlsson J) and R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 at [41] (McWilliam AsJ, as her Honour then was). |
| 70․ | In other jurisdictions, it has been held that a narrow interpretation should not be given to the textually broad definition that the legislature has provided: R v Miller [1995] 2 VR 348 at 354; Berichon v R [2013] VSCA 319; 4 VR 490 at [36]. Such an approach has added force in this jurisdiction. Specifically, when the legislature enacted s 47, it determined to “broaden” both the classes of offences in which victim impact statements could be tendered and the class of persons who can tender the victim impact statements: Agreement in Principle Speech, Crimes (Sentencing) Bill 2005 (ACT), Hansard, Legislative Assembly, at 1507. |
| 71․ | It may be accepted that the distress which a victim may suffer as a result of the “ordinary processes of a criminal trial” should not be taken into account when assessing the harm occasioned to the victim as a result of the offending: R v Iacuone; R v Duffy; R v JR (No 2) [2014] ACTSC 149; 286 FLR 217 at [26] – [27], citing R v Timbery [2008] NSWDC 340 at [43]. In the ACT, the right of all persons charged with a criminal offence to crossexamine prosecution witnesses is recognised in s 22(2)(g) of the Human Rights Act 2004 (ACT). Section 22(g) of the Human Rights Act may be breached if distress to a complainant that is occasioned by ordinary cross-examination is taken into account as an aggravating factor on sentence. In the present case, where the appellant was not found guilty of any of the sexual offences, it was particularly important that any harm occasioned from “ordinary cross-examination” concerning those allegations play no part in the determination of the sentence to be imposed for the perjury offence. |
| 72․ | However, as a result of the appellant’s perjury, the complainant was not subject to “the |
ordinary processes of a criminal trial”. The complainant was subjected to crossexamination the foundation of which was the appellant’s perjury, that caused the complainant particular distress. Accordingly, the harm occasioned by that crossexamination is properly characterised as harm that was suffered by the victim “because of the offence”.
| 73․ | The appellant’s submission that it is not possible to “divorce” the complainant’s distress about not being believed from the harm occasioned by the cross-examination that arose from the perjury should not be accepted. As the primary judge observed in an exchange with counsel in the proceedings on sentence, “the function of judges is full of artificial exercises”. The difficulty that a judge may face in disentangling harm that a victim has suffered “as a result of… the commission of an offence” is not a reason to deprive a victim of their voice in the sentencing process. |
| 74․ | Some victim impact statements may occasionally stray into areas which may not be considered by a sentencing judge in determining the sentence to be imposed. It is, in the first instance, the role of the prosecution to work with the victim to ensure that irrelevant material is not included in the victim impact statement. |
| 75․ | Where, despite these efforts, irrelevant or inadmissible material is included in a victim impact statement, it will usually be preferable for counsel to make a submission concerning the weight to be given to the irrelevant material, rather than to make a formal application for that material to be excluded: see similarly R v Swift [2007] VSCA 52; 15 VR 497 at [6] – [9] (Nettle JA, as his Honour then was, Vincent JA and Habersberger AJA agreeing). Such a course will ensure that victims are not “excluded by court processes”, or made to feel “as if their experience [has] somehow been sanitised by legal jargon or technicality”: Porter (No 3) at [67]; see also at [81] – [82] (Loukas-Karlsson J). Ultimately, the sentence that is to be imposed must be guided by the purposes of sentencing set out in s 7 and the statutory considerations set out in s 33 of the Crimes (Sentencing) Act. The latter provision in particular reinforces the requirement that harm “result from” the offence committed: ss 33(1)(e) and (f) of the Crimes (Sentencing) Act. |
| 76․ | In any event, in the present case, the complainant’s victim impact statement was carefully addressed to the specific harm that arose from the perjury, in particular, the “compounding” of her trauma that was occasioned by the appellant’s lies concerning his dog. The remainder of the victim impact statement is properly understood as providing context for the victim’s account of the harm that was occasioned by the offending. |
| 77․ | In short, as a result of the appellant’s perjury, the complainant was cross-examined on a |
false premise. The primary judge was correct to conclude that this aspect of the crossexamination caused the complainant additional emotional and psychological harm, which was properly taken into account in sentencing the appellant for the perjury offence. The primary judge clearly understood her responsibility to take care in determining which aspects of the victim’s trauma were relevant to the sentence to be determined. The primary judge did not err in admitting the complainant’s victim impact statement.
78․ This ground of appeal must be dismissed.
Ground C: Errors of fact concerning the large cabinet
| 79․ | At paragraph [21] of the Primary Judgment, the primary judge made the following factual findings: I am satisfied beyond reasonable doubt that the items described by the offender as being near the wall (a large cabinet and the large tub of dog food) were not present in his apartment at the time of the alleged sexual offences. The overwhelming weight of the evidence of the former wife was to that effect. That finding is further supported by the content of the offender’s email, which provides a telling account of a series of deliberate lies. |
| 80․ | In Ground C, counsel for the appellant submitted that the primary judge could not be satisfied beyond reasonable doubt that: (i) the large cabinet described by the appellant was not present at the time of the alleged sexual offending, and (ii) that the appellant, in describing the cabinet, was telling a deliberate lie. |
| 81․ | The appellant’s counsel noted that the agreed statement of facts did not address these facts. The appellant’s counsel submitted the appellant’s lies related to the whereabouts of the dog he shared with his ex-wife on the night of the alleged sexual offending and the presence of items connected with the dog and did not extend to the existence of a large cabinet. |
| 82․ | The appellant’s counsel noted that evidence supporting the existence of the large cabinet (the appellant’s oral evidence, a floor plan and a photograph) was not challenged by other evidence. Specifically, he noted that when the complainant was shown the photograph and floor plan, she accepted the photo depicted the cabinet and did not give evidence there was not a cabinet against the wall. |
| 83․ | The appellant’s counsel accepted that, in order to succeed on this ground of appeal, it is necessary for the appellant to demonstrate that these findings were not open to the primary judge: Tate v The Queen [2012] ACTCA 50 at [51] – [52]; see also Ocek v R [2023] NSWCCA 308 at [116]. The appellant has not done so. |
| 84․ | As counsel for the Director observed, in the first trial, the complainant could not recall |
the large cabinet being against the wall, even after being shown the photographs tendered by the appellant. The appellant’s oral testimony was the sole evidence that the cabinet was against the wall on the night of the alleged sexual offending. Importantly, in his email to former ex-wife, the appellant stated:
There were one or two things that I stated in my evidence that wasn’t true. The main thing was regarding the dog… I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall.
| 85․ | As the Director’s counsel submitted, it was open to the primary judge to draw an inference that the appellant’s evidence regarding the presence of those items was false. In particular, unless the appellant was being untruthful about the cabinet, there was no reason for him to refer to the cabinet in his email to his ex-wife. |
| 86․ | Further, it was well open to the primary judge to conclude that although the “main thing” that the appellant lied about was the dog items, the appellant’s reference to the presence of the cabinet as well as the dog items in the email is an indication that his lie also extended to the cabinet. As the Director’s counsel submitted, in an email describing his false evidence, “one may wonder why the appellant would refer to the presence of the cabinet if that aspect of his evidence was not [also] false”. |
| 87․ | The appellant has not demonstrated that the primary judge’s finding concerning the |
presence of the cabinet was not open. This ground of appeal should be dismissed.
Ground D: irrelevant considerations
88․ In ground D, the appellant contended that the primary judge took into account two irrelevant considerations in sentencing the appellant, namely:
(i)The complainant’s psychological injury; and
(ii)The existence of the family law proceedings between the appellant and his former wife.
89․ These contentions are addressed below.
The complainant’s psychological injury
| 90․ | Counsel for the appellant submitted that in considering the complainant’s representations about her mental injury, her Honour took into account the complainant’s entire psychological injury, even though part of that psychological injury may have been sustained as a result of the normal cross-examination. |
| 91․ | We do not accept this submission. The primary judge was careful in her approach to the |
complainant’s victim impact statement. It is clear from the sentencing reasons that the primary judge only took into account the complainant’s harm arising from the perjury, and not any trauma that may have resulted from ordinary cross-examination.
Ongoing family court proceedings
92․ When considering the need for the protection of the community, the primary judge found (at [67]) that the appellant’s ex-wife was at risk of further offences:
As to protection of the community, in my assessment the offender’s persistence in his own self-interest in his attempts to contact his former wife – and his apparent complete inability to appreciate the impact of his conduct on her – indicates that she is at an ongoing risk, particularly in light of the ongoing Family Court proceedings between them.
| 93․ | The appellant’s counsel submitted the primary judge erred by taking the existence of the family law proceedings into account. He submitted that: (a) The appellant’s offending occurred in the context of the first trial. At the time of sentence for the present offences, that trial had resolved. This meant that any further attempts by the appellant to pressure his ex-wife into giving false evidence would have been futile; (b) The family law proceedings did not play any role in the offending; and (c) There could be no suggestion that the appellant poses a risk of further attempts to influence the evidence of his former wife in the family court matter, given that they are opposing parties in that litigation. |
| 94․ | These submissions must be rejected. |
| 95․ | The flaw in the appellant’s submissions lies in the overly narrow characterisation of the risk that the appellant poses to his former wife. The risk to be protected against is not confined to a risk that the appellant will again pressure his former wife to lie. Rather, it is the risk that the appellant will again be motivated to lie and/or to pressure others to lie in proceedings for his benefit. |
| 96․ | In these circumstances, the primary judge was correct to find that the appellant posed a continuing risk to his former wife. As the Director submitted, the appellant’s conduct demonstrated a disturbing disregard for the integrity of the administration of justice. It is apparent that the appellant considered himself entitled to lie and pressure others to lie on his behalf so as to achieve his own self-interest. Even after admitting his guilt for this offence, the appellant demonstrated little remorse for the consequences of his behaviour, including the effect that his actions had had upon his former wife. |
| 97․ | In this context, the ongoing family law proceedings between the appellant and his former |
wife were highly relevant. As a result of the family law proceedings, the appellant will continue to be a party in adversarial proceedings, in which he may be motivated to once again lie and/or to pressure others to achieve an outcome which suits his own interest. It is not to the point that the appellant may have learnt that there is little point in pressuring his former wife to give false evidence. For the protection of the appellant’s former wife, it was necessary that a sentence be imposed which specifically deters the appellant from lying, and/or pressuring others to lie on his behalf in any proceedings, but particularly in the family law proceedings.
98․ This ground of appeal should be dismissed.
Ground E: manifest excess
99․ The final ground of appeal argued by the appellant was that the sentences imposed by the primary judge were manifestly excessive.
100․ The principles to be applied to such a ground of appeal are well established: Tracey v The Queen [2020] ACTCA 51 at [37] – [38].
101․ The appellant has not demonstrated that the sentence imposed for the perjury offence was manifestly excessive. Rather, for the reasons outlined at [106] – [107] below, the sentence imposed by the primary judge for that offending was lenient.
102․ The offence of attempting to pervert the course of justice carried a maximum penalty of imprisonment for 7 years, a fine of $112,000 or both. The present offence was a serious example of this form of offence. The appellant placed considerable pressure on his exwife and attempted to persuade her to perjure herself. The appellant showed little remorse for this offence.
103․ We agree with the primary judge’s finding that the appellant will not be deterred from such conduct unless he is held accountable for it: Primary Judgment at [65]. Accordingly, the need for personal deterrence and to render the appellant accountable for his actions is high. The need for general deterrence is also high, as offfences of this nature are difficult to detect. Finally, the sentences to be imposed for offending of this nature must also be such as to vindicate the integrity of the administration of justice, recognising that offences of this nature “strike at the very heart of the justice system”: Marinellis v R [2006] NSWCCA 307 at [10]; citing R v Pangallo (1991) 56 A Crim R 441 at 443.
104․ The appellant’s subjective case was not such as to significantly mitigate the sentence to be imposed. He was an educated mature adult, who demonstrated little remorse or insight into his offending conduct. His moral culpability for the offending for the offending was high.
105․ The appellant has not demonstrated that the sentence that was imposed for either offence was manifestly excessive. Further, as noted at [112] below, the appellant has not demonstrated that the overall non-parole period or the overall term were manifestly excessive. Indeed, in circumstances where the offending conduct was constituted by separate acts at different times, and caused harm to two separate victims, the overall non-parole period and overall term may be seen as lenient.
106․ It follows that this ground of appeal must be dismissed.
Resentence
107․ As error has been demonstrated with respect to the perjury offence, it is necessary to resentence the appellant for that count. It is also necessary to reconsider questions of accumulation, and to reassess the non-parole period that was imposed.
108․ The perjury offence attracted a maximum penalty of imprisonment for 7 years, a fine of $112,000 or both. It is well-recognised that such offences require sentences that are sufficient to punish and deter. As Gleeson CJ (Hunt CJ at CL agreeing) held in R v Bulliman (unreported, NSWCCA, 25 February 1993):
False evidence strikes at the whole of the basis of the administration of justice, and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence or offences are committed.
109․ Similarly, in R v Mahoney [2004] NSWCCA 138, Shaw J (with whom Simpson and Bell JJ agreed) emphasised that:
Perjury undermines and subverts the system of justice. Unless corrected, it can lead the courts into error and injustice. Such conduct on the part of witnesses or parties giving evidence on oath or affirmation in our courts needs to be deterred. This end can only be achieved by punishment, which is real and substantial, as distinct from some penalty which is merely nominal or illusory.
110․ For the reasons outlined when addressing Ground A above, we have not taken into account the appellant’s motive in committing the perjury. Nonetheless, the appellant’s conduct remains a very serious example of an offence of perjury. In particular, the appellant’s lies were not a spontaneous response to cross-examination, nor the result of external threats, but rather were deliberate and premeditated, involving giving instructions to his lawyers over a period of days, and locating photographs to undermine the complainant’s evidence. As the primary judge concluded, the offender’s conduct was dishonest and manipulative. As noted at [104] above, the appellant’s subjective case was not such as to justify any leniency in sentencing.
111․ Taking into account each of these matters, we have concluded that the penalty that was imposed by the primary judge, of imprisonment for 9 months (following a 25% discount on account of the appellant’s late guilty plea), was lenient.
112․ Significantly, as counsel for the Director observed, although each offence related to different conduct, and caused harm to two separate victims, the primary judge only accumulated the sentence for the offence of attempt to pervert the course of justice on
the perjury offence by three months and imposed a short overall non-parole period of only 50% of the head sentence, which afforded the appellant further leniency.
113․ No lesser sentence than that imposed by the primary judge is appropriate in all of the circumstances. It follows that the appeal must be dismissed.
Orders
114․ For the above reasons, the following order is made:
(1) The appeal is dismissed.
I certify that the preceding one hundred and fourteen [114] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.
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