Mainwaring v The Queen

[2009] NSWCCA 207

New South Wales
Court of Criminal Appeal

CITATION:	Mainwaring v Regina [2009] NSWCCA 207
HEARING DATE(S):	12 June 2009
JUDGMENT DATE:	20 August 2009
JUDGMENT OF:	Allsop P at 1; Price J at 66; Harrison J at 67
DECISION:	1. Appeal against conviction dismissed. 2. Grant leave to appeal on sentence. 3. Appeal against sentence dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal against conviction – perjury - Crimes Act 1900 (NSW) s 327 - appellant gave evidence in murder trial of person who had shared a prison cell with while in remand – evidence given by the appellant that shoes removed from the cell were his shoes and not those of the person accused of the murder – later covert recording of appellant telling undercover policeman that he said the shoes were his when he did not know whose shoes they were – whether open to trial judge to conclude on the evidence that the evidence given in the murder trials was objectively false – whether trial judge misdirected himself by failing to consider the possibility of mistake - verdict was unreasonable and inconsistent with the evidence – appeal dismissed - CRIMINAL LAW - appeal sentence conviction – perjury – failure to take into account mitigating factors - leave to appeal granted – sentences within sentencing judge’s discretion and not manifestly excessive - appeal dismissed - Crimes Act 1900 (NSW) – s 327
LEGISLATION CITED:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Fleming v R [1998] HCA 68; 197 CLR 250 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 R v Fish & Swan [2002] NSWCCA 196; 131 A Crim R 172 R v Langton [2002] NSWCCA 382 R v Liristis [2004] NSWCCA 287; 146 A Crim R 547 R v Morgan (1993) 70 A Crim R 368 R v Treglia [2002] NSWCCA 338
PARTIES:	Daryl Mervyn Mainwaring The Crown
FILE NUMBER(S):	CCA 4851/2007
COUNSEL:	John Stratton SC (Appellant) D Arnott SC (Crown)
SOLICITORS:	Peter Katsoolis (Appellant) S Kavanagh (Solicitor for Public Prosecutions)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0370
LOWER COURT JUDICIAL OFFICER:	Sorby DCJ
LOWER COURT DATE OF DECISION:	21 June 2007 (Judgment) 21 September 2007 (Sentencing)

4851/2007

ALLSOP P
PRICE J
HARRISON J

Thursday 20 August 2009

DARYL MERVYN MAINWARING v REGINA

HEADNOTE

The appellant shared a prison cell while with a person accused of a murder in remand. As part of the murder investigation shoes were removed from the cell for analysis by a forensic podiatrist. The analysis of shoes was of forensic importance to the expert evidence as a shoe had been left at the murder scene.

The appellant testified at the murder trial that the shoes removed from the cell were his shoes, and not those of the cellmate. The appellant’s cellmate was acquitted of the murder charge.

After the conclusion of the murder trials the appellant was legally recorded by a covert police operative saying that he had testified that the shoes were his when he did not know whose shoes they were.

The appellant was then charged with perjury and stood trial in a judge alone trial in the District Court of NSW. The trial judge found the appellant not guilty of two counts of perjury with intent to procure an acquittal on a charge of murder, but guilty of two alternative counts of perjury under the crimes Act 1900 (NSW), s 327. The appellant was sentenced to an overall head sentence of five years four months with a non-parole period of four years.

The appellant appealed against the conviction and if unsuccessful sought leave to appeal against his sentence.

The appeal grounds against conviction were:

i) that it was not open to the trial judge on the evidence to conclude that the evidence given by the appellant in the murder trials was objectively false;

ii) that the trial judge erred in not directing himself in relation to the possibility of the appellant being mistaken and did not consider the possibility of mistake;

iii) that the verdict was unreasonable and inconsistent with the evidence.

The appeal ground against sentence was that there were mitigating factors that the trial judge failed to take into account when sentencing the appellant and therefore that the sentence imposed was manifestly excessive.

Held dismissing the appeal against the conviction, allowing leave to appeal against sentence and dismissing the appeal against sentence.

Conviction

Allsop P (Price and Harrison JJ agreeing):

i) The appellant’s conversation with the undercover policeman was an admission that the shoes were not his. Taken as a whole the discussion with the undercover policeman was clearly to the effect that the appellant gave what knew to be false evidence: [42]

ii) There was no necessary element requiring expert evidence to prove beyond reasonable doubt that the shoes did not belong to the appellant: [40].

iii) Once the admission made to the police was understood to be admission and once trial judge disbelieved the appellant’s evidence at his own trial that he was big noting himself then the possibility of mistake did not arise: [50]

iv) On the findings his Honour made, which were plainly open to him, a finding beyond reasonable doubt of the element of the offences was available: [52].

Sentencing

Allsop P dismissing the appeal against sentence (Price J agreeing):

i) The crime of perjury is grave and strikes to the heart of the administration of justice as perjured evidence does significant damage to the judicial system: [63].

ii) The trial judge correctly considered the range appropriate to the gravity of the particular offence and the subjective circumstances of the particular offender: [61].

iii) It is not relevant to consider whether the sentence imposed is more severe or lenient than some other sentence imposed in another case: [61]-[63].

iv) The sentences given to the appellant were well within the sentencing judge’s discretion and were not manifestly excessive: [64].

Harrison J (in dissent) allowing the appeal against sentence, quashing the sentences of the primary judge and imposing a lesser sentence:

i) A lesser sentence was warranted and should have been imposed: [73].

ii) The perjury was committed in the absence personal motivation: [72]

iii) The seriousness of the proceedings in which the perjury was committed should not be considered as an aggravating factor in sentencing:[72]

iv) There was no need for emphasis on personal deterrence and the utility of the case for deterring others to commit perjury is limited: [73]-[74].

4851/2007

ALLSOP P
PRICE J
HARRISON J

Thursday 20 August 2009

DARYL MERVYN MAINWARING v REGINA

Judgment

1 ALLSOP P: On 21 June 2007, the appellant was found guilty of two counts of perjury by Sorby DCJ in a judge alone trial for which the appellant elected under the Criminal Procedure Act 1986 (NSW), s 132. The trial judge found the appellant not guilty of two counts of perjury with intent to procure an acquittal of one Gerard Gallagher on a charge of murder, but guilty of two alternative counts of perjury under the Crimes Act 1900 (NSW), s 327.

2 On 21 September 2007, his Honour sentenced the appellant on the first perjury count to a fixed term of three years, to commence on 24 November 2005 and to conclude on 23 November 2008. On the second perjury count, his Honour sentenced the appellant to a head sentence of four years four months with a non-parole period of three years to commence on 24 November 2006. It follows that the overall sentence was a head sentence of five years four months with a non-parole period of four years.

3 The appellant appeals against the conviction and if unsuccessful in that appeal seeks leave to appeal against his sentences.

4 The background to the charges against the appellant was the stabbing murder of one Mateo Mamaril on 30 May 1999 at a home unit in Bondi. The location was a brothel run by Mr Marmaril’s sister. There were no witnesses to the attack. Police located a single Fila running shoe (UK/Australian size 9, left foot) next to the bed in the lounge room where Mr Mamaril had been sleeping. A partial shoe print from a right shoe with a matching sole to the Fila left shoe was found on the tiled window sill of the kitchen window through which Mr Mamaril’s attacker was believed to have entered the premises.

5 A finger print impression on the inside of the front door to Unit 3 was identified as matching the right ring finger of Gerard Gallagher, an Irish national living in Australia on a working holiday. Mr Gallagher was an occasional client of the brothel who, a few weeks prior to the attack on Mr Mamaril, had been refused entry following a dispute with Mr Mamaril’s sister.

6 The Fila running shoe located at the crime scene was subjected to DNA testing. A bloodstain on the shoe was found to match the DNA profile of Mr Mamaril and DNA from an area inside the shoe was found to match the DNA profile of Mr Gallagher.

7 In an electronically recorded interview with police on 17 June 1999 Mr Gallagher agreed that the Fila running shoe located at the crime scene “looks like mine” and “could be it”. Mr Gallagher stated that such a pair of shoes in size “9 or 10” had gone missing from outside the front door of his home about a month before.

8 Mr Gallagher was charged with the murder of Mr Mamaril.

9 On 11 May 2000 police executed a search warrant on Mr Gallagher’s cell at the Metropolitan Remand and Reception Centre (MRRC) at Silverwater in order to locate other shoes belonging to Mr Gallagher for the purpose of comparison with the Fila running shoe. Mr Gallagher was asked to produce all shoes worn and owned by him and in response provided, amongst other shoes, a pair of US size 11½ blue, grey and black Asics running shoes (UK/Australian size 11) from a black plastic bag beneath a bed to the extreme left of the cell. The execution of the search warrant was videotaped, but it was later discovered that there was no concurrent audio recording.

10 A comparison between the wear patterns on the internal structure of the blue, grey and black Asics running shoes seized in the police search of Mr Gallagher’s cell and the Fila running shoe located at the crime scene was conducted by Jillian Fogarty, a forensic podiatrist.

11 Mr Gallagher pleaded not guilty to the murder of Mr Mamaril and his trial proceeded on three separate occasions in the Supreme Court of New South Wales. Murder Trial 1 (14 August 2000 – 5 September 2000) resulted in a hung jury; Murder Trial 2 (29 January 2001 – 5 February 2001) was aborted part way through and Murder Trial 3 (7 April 2001 – 1 June 2001) resulted in an acquittal.

12 The appellant gave evidence on oath for the defence at Murder Trial 1 on 28 August 2000 and at Murder Trial 3 on 21 May 2001. The testimony given on both occasions was substantially the same. The appellant’s evidence was that during April 2000 he was awaiting trial at the MRRC at Silverwater. The appellant shared a cell with Mr Gallagher and two others. The appellant said (as was the case) that he had been taken to the Junee Detention Centre to attend court in Albury, where he remained until late May 2000 before returning to Silverwater. When the appellant went to Junee he said that he left behind clothing, a brief of evidence, personal papers, shoes and an electric fan: “Just bulky things I did not want to take to Junee. I took an overnight type thing to Junee”. The appellant said that he did this because he thought that he would only be away for two or three days and, being a plumber at the MRRC, “an essential worker there … they would try to get me back as quick as they could to Silverwater”.

13 The appellant gave evidence that he left his property in the care of Mr Gallagher because “[t]hey don’t hold private property at Silverwater … [If you take it to the property office] [t]hey pack all your property up and send [it to] Junee. Because of the bulk of property, I knew I was only going for a few days, so I took a carry bag with all the clothes I needed … It is a common practice if you don’t want to take it to Junee or wherever you are going. You leave [it] in the care of somebody … You have got this large amount of property which could be lost or whatever in transit. Doesn’t come with you, you wait two or three months for it to come back”. He said that his possessions were left in a large garbage bag “under [Mr Gallagher’s] bed so they would be looked after”. Mr Gallagher agreed to look after the property until the appellant returned.

14 The appellant gave evidence that the shoes he had left with Mr Gallagher were Asics running shoes which were blue, grey and black with a little bit of yellow on them. They had grey splatters of paint that had been spilled by the appellant when he was doing some painting in the MRRC.

15 The appellant was shown the blue, grey and black Asics running shoes seized by police on 11 May 2000 and identified them as being his own shoes. He also indicated that these were the shoes referred to in a Department of Corrective Services’ invoice dated 30 October 1999, thereon recorded as being size 10½ and as item 33 on the “Alpha Listing of Inmate Property” purporting to list property of the appellant within the prison system as at 9 August 2000. The appellant stated that he received size 11 ½ shoes and cannot explain the discrepancy with what is printed on the invoice. The appellant stated that whist at the MRRC he purchased two pairs of Asics running shoes. He said he took size 10 ½ and on both occasions ordered size 10 ½. Both pairs of Asics running shoes received fit him, although the first pair were size 9½ and were “a little bit firm on me, tight” a “very tight fit, but I still wore them anyway, because if I handed them back it would take another two months to go through the procedure again to get another pair”. The second pair, being size 11½, the appellant “could wear them, comfortable … in gaol you really don’t have a choice”. “They were a little bit large, but I could wear them and I kept them also. I used them for work. They were more of a work shoe”.

16 The appellant gave evidence that he did not give Mr Gallagher permission to wear the Asics running shoes he left in Mr Gallagher’s cell and to his knowledge Mr Gallagher never wore them. The appellant did not buy a pair of Asics running shoes for Mr Gallagher, nor did he give or lend him a pair.

17 Mr Gallagher also gave evidence at the first and third murder trials. Mr Gallagher denied ownership of the Asics running shoes and stated that he had told police, upon production of the shoes, that “they are not mine”. Mr Gallagher confirmed the appellant’s version of events regarding the leaving of the shoes in Mr Gallagher’s care.

18 Agreed facts were tendered at the appellant’s trial stating that the appellant shared cell 224B with Mr Gallagher at the MRRC from 2 April 2000 until 16 April 2000; that Department of Corrective Services’ records showed that on 16 April 2000 the appellant was transferred to Junee Correctional Centre, returning to the MRRC on 17 May 2000; that the appellant was absent from the MRRC on 11 May 2000 when Mr Gallagher’s cell, 224B, was searched; and that the appellant again shared cell 224B with Mr Gallagher on 2 June 2000.

19 After giving evidence in Mr Gallagher’s third trial, the appellant returned home to Queensland. On 6 June 2001, pursuant to an unrelated investigation, the appellant was (legally) recorded speaking to a covert police operative, “Phillip Lucas”, in a car park on the Queensland Gold Coast. The appellant volunteered the following in conversation: “I’ve been through a bit of shit, I’ve been through a murder trial and shit the last … I got a bloke in … (unintelligible), went and testified for a bloke in there last week, he got off and he’s gone back to Ireland … it was all over some runners and that found at a murder scene and shit … well, we put a lot into it you know, I fucken’ put my head on the line to get him, going fucken’ on about it … this Gerry Gallagher the name is … So it was all about runners and who owned ‘em and all this sort of shit, you know … And I put me hand up to fucken’ owning a pair of runners, there was one found at the scene, murder scene and then when they raided the gaol to get his runners to try and do a DNA test and that, well I was actually in remand for nearly two years a couple of years ago … And I was living with him when they took these runners and I put me hand up and said, ‘Oh they’re fucken’ my runners’. I don’t know whose runners they were, whoever’s runners they were, who gives a fuck. But anyway, fucked ‘em up in court … I did a you know, stat dec and I got ‘em to –inside [gaol] you fucken’ when you buy something they put it on ya dot – ya know, on your property sheet and everything. It was all fucken’ signed up in my name and everything, all the runners and that and fuck it. It fucked the DNA up. This could fuck Australia’s fucken’ new DNA laws … Yeah keep laughin’. The jury come back and said ‘Not guilty’ … They couldn’t have touched me ‘cause when it happened I was in custody see? …So there’s no way it’d come back onto me. It’s just a matter of me fucken’ sticking my hand up in the air a little bit fucken’ further than I wanted to”.

20 “Phillip Lucas” gave evidence that he had met with the appellant on at least 12 and perhaps as many as 20 occasions. In cross-examination, “Mr Lucas” rejected the suggestion that the appellant was simply “big noting himself”. “Phillip Lucas” said: “I don’t believe so. With other conversations I’ve had with [the appellant] whatever he said he would do or provide he has done so, so I had no reason to doubt him”.

21 In November 2005, the appellant was extradited to New South Wales on the perjury charges. While in custody in Queensland awaiting extradition Queensland police executed a search warrant on the appellant’s cell and property. Footwear was taken – some Asics runners, Puma runners, one pair of black slides and one pair of Rockport black dress shoes.

22 These shoes were later sent to Ms Fogarty, the forensic podiatrist, for examination and comparison with the shoes earlier examined in relation to the Gallagher trial. Another forensic podiatrist, Mr Bennett, also examined the shoes.

23 In 2006, the appellant consented to testing of his feet.

24 There was expert evidence tendered in the appellant’s trial. First, the transcript of evidence of Ms Fogarty, that had been given at an earlier trial of the appellant was tendered. Mr Bennett also gave evidence. It is sufficient for present purposes to note that both Ms Fogarty and Mr Bennett gave evidence that the Asics shoes taken from Gallagher in his cell appeared to have different foot patterns from the runners and shoes taken from the appellant but that neither could be in any way certain of that.

25 The appellant gave evidence in his own trial. He swore that the Asics running shoes taken from Gallagher were his, having left them in Gallagher’s care when he had been temporarily transferred to Junee. He said that at and prior to the time of the conversation with the covert police operative he was taking antidepressants and had consumed 10-12 bourbon and cokes. He said:

“’I was just big noting myself in conversation I think. Just pulling things out of the air.”

He said that he had told the truth in the two murder trials.

26 As to the appellant’s degree of intoxication, the undercover policeman gave evidence:

“‘[the appellant] wasn’t suffering from any level of intoxication which made his demeanour, his appearance, his general dealings with me any different to any other occasion. It just appeared to be normal conversation’.”

27 Professor Graham Starmer, a professor of pharmacology, gave evidence that in his opinion, based on the appellant’s history of drinking between 10 and 12 bourbon and cokes on 6 June 2001, the appellant would have had a blood alcohol reading in the range of 0.188 to 0.229. Professor Starmer ultimately agreed that it was not really possible for him to reach any firm conclusions as to what effects alcohol and prescription medication may have had on the appellant on that day.

28 In his reasons, the trial judge reasoned and concluded as follows. First, he directed himself to the elements of each count stating, relevantly:

“In respect of each of the offences the crown must prove beyond reasonable doubt the following elements:
1. The accused made a false statement
2. On oath
3. In a judicial proceeding
4. Knowing the statement to be false
…
5. With the intent to procure the acquittal of a person of a serious indictable offence.”

29 His Honour then turned to the evidence.

30 The first complaint, being ground one of the appeal, is that it was not open to his Honour to conclude on the evidence before him that the evidence of the appellant in Mr Gallagher’s trials was objectively false.

31 There was no dispute about the evidence that the appellant gave at the first and third trials of Mr Gallagher. The evidence was that the Asics runners belonged to him (that is the appellant).

32 The trial judge discussed the evidence as to the objective falsity of the statement. First, a Detective Fountain gave evidence of the search of Gallagher’s cell and his production of the runners when asked to produce his shoes. The Detective denied that Gallagher said that they were not his. The judge made the following finding:

“I do not accept that Gallagher, when he produced the Asics from the black bag under his bunk told Detective Fountain that the shoes did not belong to him. There would be no point, in terms of the murder investigation, for shoes other than Gallagher’s to be seized. Therefore I find that when asked by Detective Fountain on 11 May 2000 to produce his footwear, Gallagher took a pair of Asics from a black bag under his bunk which were then placed in the exhibit bag without any comment as to the ownership of the Asics. This finding leaves open the question of whether or not the Asics shoes taken from the black bag by Gallagher during the cell search of 11 May 2000 were in fact his shoes, or those of the accused Mr Mainwaring as claimed by Mr Mainwaring in the evidence at the trial of Gallagher on 28 August 2000 and the subsequent trial.”

33 The trial judge then discussed Ms Fogarty’s transcript and Mr Bennett’s evidence. The judge recognised the imprecision in the evidence and gave particular weight to Mr Bennett’s evidence as to difference and similarities between the Asics runners taken from Mr Gallagher and the shoes taken from the appellant:

“He was then asked about the difference and similarities between the two sets of shoes and he said:
‘Q. Answer this question if you are able to. Are you of the view that there were more differences than there were similarities between the footwear taken in the Gallagher matter and the pressure results from the accused Mainwaring. In other words, do the differences outweigh the similarities?
A. Yes.
Q. Are you able to say whether or not it’s reasonably possible that the accused Mainwaring was the wearer of the shoes taken in the Gallagher matter, that is the blue/grey Asics runners is that a reasonable possibility?
A. It is possible.
Q. Are you able to say whether it is a reasonable possibility?
A. It is difficult to be completely certain about that.
Q. Why is that sir?
A. Given that there was the issue to deal with the load in the second toe which is, whilst common, it does draw a point of distinction so the two individuals could have shared the same characteristics.’
In cross-examination by Mr Cooley, Dr Bennett said at 204:
‘Mr Mainwaring could have been the wearer of the Asics shoe sized eleven and a half US in the ‘Gallagher matter’. He said Mr Mainwaring could have worn that shoe and could have put that shoe on his foot.’
Dr Bennett said that he was not able to exclude that Mr Mainwaring was in fact the wearer of the Asics in the ‘Gallagher matter’, transcript 205. Dr Bennett went on:
‘Q. Didn’t you also indicate in your evidence in chief that the differences between the two outweigh similarities? You go on to say immediately thereafter (in the second report of 12/11/2006) ‘The Asics insole in the Gallagher demonstrates it should be ‘Gallagher matter?’
A. Yes.
Q. The Asics insole in the Gallagher matter demonstrates some inconsistency with the observations reported above?
A. Yes.
Q. So you are saying all that information in relation to Mr Mainwaring’s feet had some consistency with the Gallagher shoes?
A. In some aspects of it in a very localised area of it?
Q. You say that the feet of Mr Mainwaring could potentially produce shoe wear characteristics identifying the Asics footwear in the Gallagher matter?
A. That’s correct.
Q. You also include the internal wear characteristics in the vicinity of the fifth toes of both feet?
A. That’s correct.
Q. What do you mean by that?
A. That the area inside the shoe, if anybody wants to wear that, if I was to wear that, or you were, lose the potential to wear the shoe in a particular area.
Q. Are you saying all the information you have about Mr Mainwaring’s feet indicates that he would have created the wear in the location of the fifth toes of both feet in the Asics and the Gallagher matter?
A. It is possible.
Q. That’s what you seem to be saying, do you agree with that?
A. It’s possible.
Q. You couldn’t exclude could you that Mr Mainwaring was in fact the wearer of the Asics in the Gallagher matter?
A. I’m not able to exclude him.
His Honour: Q. Didn’t you also indicate in your evidence in chief that the differences between the two outweigh the similarities?
A. That’s correct.”

34 As can be seen from an examination of this exchange, this expert evidence did not prove that the Asics runners found in Mr Gallagher’s cell were not the appellants, but it was not inconsistent with that proposition.

35 The gaol property list did not record the appellant owning any Asics.

36 The primary judge then discussed the evidence of the undercover policeman. The judge said:

“The key elements of this evidence are the admissions made by Mr Mainwaring as to what he said and did in relation to the shoes at the Gallagher’s first and third trials. He said in conclusion in relation to his evidence that ‘I put my head on the line, we put a lot into this testimony’ and ‘I put my hand up to owning a pair of runners which I didn’t know whose runners they were’. This last quote is significant and suggests to me that Mr Mainwaring, not knowing who owned the shoes, built up a case for ownership of the Asics to assist Gallagher, emphasising as he did in evidence before the Supreme Court and myself, matters that point to his being the owner of the shoes, for example the grey paint on the front of the shoes, that he said he got as a result of maintenance work at the MRCC.
An examination of the conversation that Mr Mainwaring had with the undercover operative Lucas, reveals a great deal of accuracy by Mr Mainwaring, not withstanding the amount of alcohol he says he consumed that morning (ten to twelve bourbons and coke) transcript 231. Undercover operative Lucas said the presentation of Mr Mainwaring, while noting he had been drinking was essentially the same as on other occasion [sic] that he had met with Mr Mainwaring.”

37 The trial judge then turned to the evidence of the appellant. His Honour examined the evidence with care and over a number of pages and concluded:

“I have considered the evidence of Mr Mainwaring in the witness box, both his answers and their tone and his demeanour before me and the contents of exhibit 2, in particular, in which I find Mr Mainwaring was not so much big-noting himself as ragging about what he had done in the Gallagher trials. In his conversation with the undercover operative Lucas, he kept adding more detail as to his involvement in the Gallagher trials, the information not provided as a result of any direct questions or prompting by undercover operative Lucas. There was some element of big-nothing as when he told the undercover operative the significance of his evidence on DNA evidence in Australia.”

38 His Honour then concluded:

“I find beyond a reasonable doubt that the blue/grey Asics joggers produced by Gallagher in the cell search of the MRCC cell on 11 May 2000 were joggers that belonged to Gallagher and Gallagher did not tell the police officer Fountain that they belonged to Mr Mainwaring as he claimed. This finding is made first on the basis of the evidence of both the forensic podiatrists and making appropriate allowance for the lack of scientific precision in their work and the conclusions that there were more similarities in the differences between the foot patterns in the grey/blue Asics and the foot patterns of Gallagher than Mr Mainwaring.
Secondly having heard the CD and the conversation between Mr Mainwaring and undercover operative Lucas, and the admissions made voluntary [sic] by Mr Mainwaring in that conversation revealed the considerable knowledge on his part of exactly what he said in the Gallagher trials and his reason for doing so – ‘good bloke … you know he fucken shouldn’t have been in there’ and considered the evidence of Mr Mainwaring before me, both his demeanour and his explanation for what he said to undercover operative Lucas, I find beyond reasonable doubt that when Mr Mainwaring told the jury in the Gallagher trial on 28 August 2000 that the Asics shoes seized by police in the search on 11 May were his, his statement was false and he knew it to be false.”

39 The submissions on behalf of the appellant emphasised, first, the proposition that concluding that the appellant lied at his own trial did not prove a positive proposition that the runners were his and, secondly, that the expert evidence was not conclusive.

40 Both propositions can be accepted and were not challenged. The importance of the lack of acceptance of the appellant at his trial lay in its effect upon the evidence of his admissions to the policeman. Secondly, the importance of the evidence of the experts was that it was not inconsistent with the conclusion that the Asics did not belong to the appellant. There was no necessary element requiring the expert evidence itself to prove beyond reasonable doubt that the Asics runners did not belong to the appellant. This fact and the objective falsity of the appellant’s evidence at Mr Gallagher’s trial could be proved by the appellant’s admissions to the undercover policeman.

41 Thus the appeal really collapsed into an analysis of what the appellant had said to the undercover operative as the transcript of the conversation revealed. The crucial passages were identified in the submissions for the appellant as follows:

“T1: And I put me hand up to fucken owning a pair of runners, there was one found at the scene, murder scene and then when they raided the gaol to get his runners to try and do a DNA test and that well I was actually in remand for nearly two years a couple of years ago.
CPO: Yeah.
T1: And I was living with him when they took these runners and I put me hand up and said ‘Oh, they’re fucken mine’. I don’t know runners they were [sic], whoever’s runners they were, who gives a fuck. But anyway fucked ‘em up in court.
T1: I did a stat dec and I got ‘em to, inside (gaol) you fucken when you buy something they put it on ya dot ya know on your property sheet and everything, it was all fucken signed up in my name and everything, all the runners and that it just totally fucked the DNA up. This could fuck Australia’s fucken new DNA laws, yeah yeah the jury come back and said “Not Guilty”.
CPO: All for sticking your hand up for someone else’s fucken shoes.
T1: Yeah, so we grabbed a catholic Priest that was Irish, then to the Department of fucken Immigration and got him a visa and fucken passport and bang he’s home fucken, actually Monday twelve o’clock he leaves.
T1: So there’s no way it would come back and, just a matter of me fucken sticking my hand up in the air a little bit fucken further than I wanted to.”

42 It was submitted on appeal that at the most these statements were no more than an admission of a lack of certainty or recklessness as to who was the owner of the shoes.

43 I do not agree. The issue at the primary trial was not whether or not the appellant owned the Asics runners found in Gallagher’s cell. The issue was the known falsity of the clear evidence given by the appellant that they were his. Taken as a whole, the discussion with the undercover policeman was clearly to the effect that he gave what he knew to be false evidence at Gallagher’s trial.

44 That left the question whether the appellant was “big noting himself” or whether he was speaking truthfully. This question was a factual one in which the judge did not accept the appellant’s evidence. That conclusion meant that not only was the trial judge entitled to conclude that the objective falsity of the evidence was proved beyond reasonable doubt, but also the appellant’s knowledge of the falsity was likewise proved.

45 The next ground of appeal was that the trial judge erred in not directing himself in relation to the possibility of the appellant having been mistaken and did not consider the possibility of mistake.

46 This submission founded itself upon the proposition that the transcript of the discussion with the undercover policeman reflected the possibility of mistake. For the reasons that are referred to above I do not think the discussion with the police office raises any possibility of any relevant mistake. In his Honour’s judgment at p. 6 his Honour said:

“The last element common to all four counts is that the accused Mr Mainwaring knew the statements about the ownership of the Asics shoes to be false. The crown must prove beyond a reasonable doubt that not only was Mr Mainwaring’s statement about the Asics shoes false, he knew it to be false. It has not been submitted by the defence that the accused was under any mistake about the matter [if] Mr Mainwaring was lying in the Supreme Court when he said the Asics were his then he must have been deliberately lying.”

47 The appellant relied on MacKenzie v The Queen [1996] HCA 35; 190 CLR 348. There, a solicitor appealed against his conviction for perjury. The alleged false statement made by the solicitor was that when his client was shown a lease and other documents in an interview with the police the document was not discoloured by the ninhydrin technique for developing latent fingerprints. In cross-examination, Mr MacKenzie was asked if he could be mistaken and he said he could not. In the High Court, Gaudron, Gummow and Kirby JJ observed that Mr MacKenzie almost to the end gave his testimony with an element of dogmatism and certainty that left little possibility of his being mistaken. The High Court allowed Mr MacKenzie’s appeal and quashed his conviction. Gaudron, Gummow and Kirby JJ in a joint judgment said at 373-374 the following:

“With respect to the Court of Criminal Appeal, the appellant's repetition, in Mr Barbaro's trial and in his own trial, of his conviction of certainty as to the evidence he was giving was equally consistent with the giving of false evidence innocently and mistakenly as distinct from the giving of such evidence dishonestly and with criminal intent. Neither the repetition nor the expressed certainty nor the belated suggestion that the lease as originally seen was a photocopy, are inconsistent with the hypothesis of innocent mistake. Sometimes repeated assertion of false evidence can tend to establish the criminal intention of the witness, especially where the falsity is ‘inescapable and self-evident’ or where it leaves no reasonable cause for a belief that it is true. But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved … . In R v Dickson [[1983] 1 VR 227 at 231] … it was rightly said

‘[I]t is essential to distinguish between honesty and accuracy and not assume the latter because of belief in the former’.

The converse is also true.

Thirdly, the foregoing conclusions make it all the more important that, in a case of this kind, the judge should have given assistance to the jury on the differentiation between honest mistake and deliberate falsehood, the latter being an essential element to the offence. In this Court, it was submitted for the prosecution that the mistake was inconsistent with the way in which the accused had given his evidence at both trials and conducted his defence at his own trial. Even if this were so, it would, nevertheless, be the duty of the judge to deal with the matter in his directions to the jury. This is inherent in the fact that the charge is one brought by the Crown. The judge must explain, by reference to the facts, the ingredients of the offence. In this case, the issue was specifically raised in a request for redirection on behalf of the appellant. What then happened is the source of the appellant's alternative contention before this Court that a miscarriage of justice occurred because the jury were not, in the result, properly directed, or directed at all, on the need to differentiate between false evidence given with knowledge of its falsity or false evidence given mistakenly but without criminal intent … .”
(footnotes omitted)

48 Dawson and Toohey JJ also referred to mistake at 356-357.

49 Reference was also made to the decision of this Court in R v Liristis [2004] NSWCCA 287; 146 A Crim R 547 at 570 [133].

50 I am prepared to approach the matter on the basis to the extent that a direction should have been given to the jury, his Honour should have given such a direction to himself: Fleming v R [1998] HCA 68; 197 CLR 250. Nevertheless, here, not only did the defence not raise the matter it was not coherently open on the evidence. In MacKenzie, there was the possibility that Mr MacKenzie was being dogmatic about something he was mistaken on. This was not the case here. The appellant gave sworn evidence at the trials of Mr Gallagher that the runners were his. He made a clear admission to the effect that this was not so. The admission is plainly to be understood that it was to his knowledge at the time of Mr Gallagher’s trial that he didn’t know whose the shoes were. Once one understands the admission made to the undercover policeman that it was an admission that the shoes weren’t his and in effect that he gave false evidence and once the trial judge disbelieved him in his explanation that he was big-noting himself, the question of the possibility of a mistake does not arise. The only way it could be said to arise was out of the text of the conversation with the undercover policeman. For the reasons I have given I do not think it does so arise in that context.

51 In these circumstances the second ground of appeal fails.

52 The third ground of appeal was that the verdict was unreasonable and inconsistent with the evidence. For the same reasons I have expressed above I do not think that this ground can be made out. On the findings his Honour made, which were plainly open to him having, in particular, formed a view about the credit of the appellant a finding beyond reasonable doubt of the elements of the offences was available.

53 The appellant also sought leave to appeal as to his sentences. It was conceded that the crimes were objectively grave and it was further conceded that the fact that the perjury counts related to a charge of murder aggravated the offences.

54 On the other hand, it was submitted that there were a number of features that mitigated the offences. The learned sentencing judge was not satisfied beyond reasonable doubt that the appellant had given false evidence in order to obtain an acquittal. There was also no evidence, it was said that the appellant agreed to give false testimony for any reward.

55 The appellant was born on Christmas Day 1951. He was 48 and 49 years old at the time of the offences. He was married and has been married for 36 years. He had three adult sons and he worked as self employed concreter. His criminal record included prison sentences for drug and firearms offences, but very few entries for dishonesty. There were no prior offences relating to the administration of justice.

56 The appellant drew the Court’s attention to various cases involving perjury sentences in criminal trials. In R v Treglia [2002] NSWCCA 338 the offender pleaded to guilty to a single count of perjury. The perjury had been given at a trial in which he and another man were charged with three counts of armed robbery and two charges of assault arising out of a violent home invasion. The offender and another had given evidence of an alibi and called other witnesses in support of it. Both men were acquitted. Evidence was obtained by a listening device in the offender’s cell. He was 21 years old at the time of the offence and 28 when he was sentenced. He was immersed in a drug taking culture the sentencing judge said. There was a plea of guilty, a discount of 20 per cent and an imposed sentence of four years with a non parole period of three years. The Court of Criminal Appeal allowed the appeal and resentenced the offender to a head sentence of three years with a non parole period of eighteen months.

57 In R v Langton [2002] NSWCCA 382 the offender pleaded guilty to two counts of perjury, one count of affray and three counts of assault. Mr Langton was one of a group of off duty police officers who were involved in a brawl with a group of young men. The men were arrested and a Detective Haken supplied the offender and his colleagues with batons. The arrested men were required to “run the gauntlet”. Later Langton, with other police, punched one of the prisoners. He gave false evidence about all these events. He was 34 years old, had a prior conviction for assault and was sentenced to an overall sentence of three years six months with a non-parole period of three years. On appeal to the Court of Criminal Appeal the overall sentence was not changed but the non-parole was reduced to two years three months. The sentences for the two perjury charges were reduced to head sentences of eighteen months with a non-parole of six months and three months respectively. The overall sentence for the two perjury counts for Mr Langton was a sentence of two years with a non-parole period of nine months.

58 Reference was also made to R v Fish & Swan [2002] NSWCCA 196; 131 A Crim R 172 which was an appeal arising out of the same incident as Langton. Ms Fish and Mr Swan were both police officers who gave false evidence denying that Langton and other police had forced the prisoners to “run the gauntlet”. This Court allowed an appeal from their perjury sentences and imposed on Ms Fish a head sentence of twenty months with a non-parole period of six months and on Mr Swan twenty months with a non parole period of twelve months.

59 Mr MacKenzie was sentenced to two concurrent sentences of twelve months with a non-parole period of nine months.

60 The effective sentence here was a head sentence of five years four months with a non-parole period of four years.

61 I do not think appropriate to compare the sentence under challenge directly with those imposed on these other offenders. What should be looked at is the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or lenient than some other sentence: see R v Morgan (1993) 70 A Crim R 368 at 371 per Hunt CJ at CL.

62 In Treglia and Langton the offenders pleaded guilty. In Treglia there was only a single count. In Langton the sentences were reduced in the context of a restructuring of the sentences imposed for multiple offences. The offenders in Fish & Swan did not plead guilty, but both were first offenders and former police officers who would serve their sentences on protection. There also had been considerable delay in the charging of both of them. Ms Fish was convicted of a single offence and was extended further leniency on account of having committed the offence in the context of an abusive relationship. Mr Swan suffered from post traumatic stress disorder arising from his service in Vietnam and had undergone triple bypass surgery for heart disease.

63 These cases do not provide a mandatory or even helpful guide. The crime of perjury is not only grave but it strikes the heart of the administration of justice. It is also a crime extremely difficult to identify and to prove. The damage to the judicial system of perjured evidence is substantial.

64 In my view, the sentences given to the appellant were well within the sentencing judge’s discretion and were not manifestly excessive. No lesser sentence was warranted in law.

65 For these reasons, I would dismiss the appeal on conviction, grant leave to appeal on sentence and dismiss the appeal on sentence.

66 PRICE J: I have had the advantage of reading the drafts of the judgments prepared by Allsop P and Harrison J. Their Honours disagree as to the outcome of the appeal against sentence. I adopt the learned President’s discussion of the relevant sentencing principles and their application to the present case. In my opinion, the sentences imposed by the sentencing judge were within the discretionary range open to him and were not manifestly excessive. Like Allsop P, I consider that leave to appeal against sentence be granted but the appeal be dismissed. I also agree that the appeal against conviction be dismissed.

67 HARRISON J: I have read the draft reasons for judgment of the learned President and agree with him that the appeal against conviction should be dismissed. However, I disagree with his conclusions on the application for leave to appeal against the sentence. In my opinion the learned trial judge imposed sentences that were manifestly excessive in the particular circumstances of this case.

68 It goes without saying that I do not disagree with the learned President’s characterisation of the crime of perjury as grave and one that strikes at the heart of the administration of justice. It requires vigilance to detect it and undoubtedly warrants the imposition of a sentence that reflects its gravity. Indeed, the trial judge was also at pains, in my opinion correctly, to emphasise these factors in his remarks on sentence, which are instructive and in principle beyond controversy. However it is always important that some relativity be accorded to the circumstances of the particular offences without derogating generally from these principles.

69 The appellant referred the Court to statistics generated by the Judicial Commission in relation to sentences imposed in higher courts for the offence of perjury since January 2001. Of the 12 recorded cases since then, 10 cases representing 83 per cent received a sentence of full-time imprisonment. The highest head sentence in that group was one of 4 years and 6 months. In relation to non-parole periods, the results for consecutive cases are not recorded although it appears that there were two such cases. Of the remaining eight cases, the highest non-parole period or fixed term was 18 months, and there is only one such case. The non-parole period imposed for each count in the present case is therefore at least double that of any other non-parole period imposed in that time.

70 Whilst these figures are interesting, and at one level quite instructive, they are not and cannot alone be determinative of the question of the adequacy or inadequacy of any particular sentence for a like offence. They may provide guidance but no more.

71 Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals.

72 The cases emphasise that the crime of perjury is not victimless, but that in contrast the victim is the system of justice itself. That wisdom applies with equal force here. But it is important to bear in mind that the present offences were not associated with any demonstrated or even assumed prospect of personal gain or advantage, as in the case of a falsely constructed alibi by an offender facing a trial of his own or in the case of an agreement to give perjured evidence for reward. Other examples of special advantage or personal motivation can be imagined, but none was present here. Indeed, one curious aspect of the present offences is the apparent absence of an identifiable or comprehensible motivation of any sort other than possibly some ill-considered and misplaced allegiance on the part of the appellant to a fellow prisoner. Nor am I convinced that the seriousness of the perjury can been characterised as a function of the seriousness of the proceeding – in this case, a trial involving a charge of murder – in which the perjured evidence is given. Such an approach rather suggests that there is or may be a range of cases over the reach of which truthful evidence is more or less important depending on the case concerned. I would not be prepared to accept the unqualified accuracy of such a proposition in general or that a concession that it should be treated as an aggravating factor in this case was properly made.

73 In my opinion a lesser sentence was warranted and should have been imposed. Four years of full-time custody is in my view out of proportion to the particular offences concerned. I consider that a sentence of 2 years for each offence with a non-parole period of 12 months partially accumulated by 6 months, so as to produce a non-parole period of 18 months, would have been appropriate in the present circumstances. The objective criminality of the offences was not increased by the presence of negative subjective factors indicating some specifically sinister agenda or calculated purpose. There is in these circumstances no apparent or identified need for emphasis on personal deterrence.

74 Questions of general deterrence would in my view have been more than satisfied by the sentences I propose. For example, the appellant was not a well known, trusted and highly respected member of the judiciary whose offending conduct was wholly inimical to the exercise of a notoriously public office and an affront to the standards expected of a person in such a position. Public confidence in the administration of justice requires the imposition of sentences that recognise in comparative terms the harm done by the offending conduct in question. The utility of this case as a vehicle for deterring others who may be likely to commit perjury is patently limited. A combination of two terms of imprisonment totalling 4 years with an effective term of 18 months full-time custody is, and should be acknowledged to be, a significant sentence and a salutary punishment marking out in clear and unambiguous terms the disapprobation with which the community views any interference with the operation of its fundamental and important institutions.

75 In my opinion the following orders should be made:

1. Dismiss the appeal against conviction.

2. Grant leave to appeal against sentence and allow the appeal.

3. Quash the sentences imposed by Sorby DCJ on 21 September 2007 and in lieu thereof sentence the appellant on the first count to a non-parole term of imprisonment of 12 months commencing on 24 November 2005 and concluding on 23 November 2006 with a balance of term of 12 months commencing on 24 November 2006 and concluding on 23 November 2007 and on the second count to a non-parole term of imprisonment of 12 months commencing on 24 May 2006 and concluding on 23 May 2007 with a balance of term of 12 months commencing on 24 May 2007 and concluding on 23 May 2008.
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