Michael v R - [2014] NSWCCA 2

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Michael v R [2014] NSWCCA 2
Hearing dates: 26/11/2013
Decision date: 05 February 2014
Jurisdiction: Criminal
Before: Hoeben CJ at CL at [1]
Blanch J at [171]
Price J at [172 ]
Decision:
(1) Leave to appeal against conviction and sentence be granted but that the appeal be dismissed.
(2) The applicant's bail be revoked forthwith.
(3) The applicant be returned to custody on 5 February 2014 so that his non-parole period of imprisonment will expire on 30 January 2015 and the balance of his term will expire on 29 January 2016.

Catchwords: CRIMINAL LAW - CONVICTION APPEAL - doing an act intending to pervert the course of justice contrary to s319 Crimes Act 1900 - law clerk advising witness to lie to police - whether verdict was unreasonable - detailed analysis of evidence necessary - conceded inconsistencies in Crown case - whether necessary intent established by evidence - whether open to jury to be satisfied of guilt beyond reasonable doubt - not sufficient to identify material tending against guilt of accused - inconsistencies in evidence did not undermine Crown case - advantage of jury in assessing witnesses - conviction appeal dismissed - SENTENCE APPEAL - incorrect factual finding by sentencing judge - whether any potential effect on sentence - whether extra curial punishment taken into account - assessment of objective seriousness - whether sentence of fulltime imprisonment the only appropriate sentence - whether sentence manifestly excessive - appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) - s319
Criminal Appeal Act 1912 (NSW) - s6(1)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited: Baxter v Regina [2007] NSWCCA 237; 173 A Crim R 284
BCM v The Queen [2013] HCA 48
Carroll v The Queen [2009] HCA 13; 83 ALJR 579
Col v R [2013] NSWCCA 302
Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6
House v The King [1936] HCA 40; 55 CLR 499
Libke v R [2007] HCA 30; 230 CLR 559
M v R [1994] HCA 63; 181 CLR 487
MFA v The Queen [2002] HCA 53; 213 CLR 606
Makarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371
Nguyen v R [2004] NSWCCA 332; 149 A Crim R 343
Oudomvilay v Regina [2006] NSWCCA 275
R v Marinellis [2001] NSWCCA 328
Marracos v R [2008] NSWCCA 267
R v Mercael [2010] NSWCCA 36
R v Mulato [2006] NSWCCA 282
R v Pangallo [1991] 56 A Crim R 441
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zamagias v R [2002] NSWCCA 17
Category: Principal judgment
Parties: Fabian Michael - Applicant
Regina - Respondent Crown
Representation: Counsel:
T Game SC/D Barrow - Applicant
S Dowling SC - Respondent Crown
Solicitors:
Senses Legal - Applicant
S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown

File Number(s): 2011/332412
Decision under appeal

Before:

Payne DCJ

File Number(s):

2011/332412

Judgment

HOEBEN CJ at CL:

Offence and sentence

The applicant was charged with one count of doing an act intending to pervert the course of justice, contrary to s319 of the Crimes Act 1900 (NSW). He was tried before her Honour Judge Payne and a jury in the District Court at Parramatta. The trial commenced on 21 August 2012 and the jury returned a verdict of guilty on 29 August 2012. On 21 March 2013 Judge Payne sentenced the applicant to imprisonment with a non-parole period of 1 year and 3 months, with a balance of term of 1 year.

The applicant seeks leave to appeal against conviction on a single ground:

Ground 1 - The verdict is unreasonable and cannot be supported by the evidence.

The applicant commenced serving his sentence on 21 March 2013. On 26 June 2013 he was granted bail by Slattery J and continues on bail. He has served 3 months and 6 days of the sentence imposed by Judge Payne. The applicant has also appealed against sentence.

The Crown case

The Crown case was that during the investigation of Mr Salim for two offences, arising out of an incident on 27 August 2010, the Police wanted to question Mr Phillips about the incident as his car was involved. Mr Phillips spoke to the applicant on a few occasions. He told the applicant that he was driving his car at the time of the alleged incident.

The Crown alleged that the applicant told Mr Phillips to tell the Police that he could not remember who was driving the car on 27 August 2010 and that many people drove the car. The "course of justice" was particularised as the prosecution of Mr Salim for the offences that allegedly occurred on 27 August 2010. The Crown case was that the applicant knew this statement to be false and that the advice was given for the purpose of perverting the course of justice, namely the prosecution of Mr Salim. The charges against Mr Salim were subsequently withdrawn due to the exculpatory nature of the statement made by Mr Phillips.

The defence case

The defence case was that the jury could not be satisfied beyond reasonable doubt because of the inconsistencies in the evidence called on behalf of the Crown. It was submitted that there was no evidence from which to infer an intention by the applicant to defeat or obstruct the prosecution of Mr Salim. The defence submitted that the Crown case did not "make sense" because the police already knew who was driving the car and who the passengers were.

The defence submitted that the only meetings that the applicant had with Mr Phillips were in the presence of the barrister, John Parnell. The defence submitted that there was confusion in the minds of both Mr Phillips and his mother, Dale Phillips, so that they had misconstrued what had happened as they were so concerned about the possible consequences for Mr Phillips, particularly as to why he had not come forward.

Evidence at trial

The Crown called three witnesses in support of its case: Detective Senior Constable Whale, Mr Phillips and his mother, Dale Phillips. Detective Whale of Quakers Hill Police Station was the officer in charge of the investigation. He said that on 28 August 2010 he arrested and charged Mr Marwan Salim with "take and detain for advantage" and with "demand property with menaces" in relation to an incident that occurred the previous day. The alleged victim was Mr Robert Rad who described being conveyed in a vehicle which was later identified as belonging to Mr Daniel Phillips. Detective Whale spoke to the applicant (whom he believed to be Mr Salim's solicitor) on the telephone after Mr Salim was arrested. Mr Salim was later granted bail and the investigation continued.

Detective Whale spoke to Mr Phillips on 17 January 2011 and arranged for him to attend the Quakers Hill Police Station on 19 January. On 19 January 2011 Mr Phillips attended the Quakers Hill Police Station, accompanied by a number of people including a person called "John". John advised Detective Whale that Mr Phillips did not wish to speak to him. Mr Phillips and his companions then left the police station.

Detective Whale's next contact with Mr Phillips was by telephone, possibly a week later. Detective Whale asked Mr Phillips to attend the police station to answer questions in relation to the ownership and who was driving his motor vehicle on 27 August 2010. Detective Whale advised Mr Phillips that he was required by law to answer these questions. Arrangements were made for Mr Phillips to attend the police station on 28 January.

On that date Detective Whale received a telephone call from a person who identified himself as the applicant. He advised Detective Whale that he and his client would not be able to come to see him that day because he [the applicant] was double booked. Detective Whale was advised that Mr Phillips would attend the police station on 31 January.

On 31 January 2011 Mr Phillips attended the police station with his mother and spoke to Detective Whale. Detective Whale's evidence was:

"Q. What was the topic of conversation?

A. I told him again that I was going to ask him questions that he would be required to answer about his motor vehicle and I gave him what is called a form of demand that I read to him and when I'd ask the question "Who is the owner of your motor car?" he looked at his hand on which he had the words either "no comment" or "I don't wish to comment" or something similar to that written on his hand. I could see that he appeared to be extremely nervous and I attempted to calm him down and following that we had a longer conversation about matters that relate to this." (21.8.12 - T.10.18)

Other evidence given by Detective Whale concerning this meeting was as follows:

"Q. Well what did you observe that made you be of the view that he was nervous?

A. He was sweating profusely, his voice was very shaky and at some point he was on the verge of tears and I could tell that he just didn't know what to say to me." (T21.8.12 - T.11.1)

"Q. Can you tell us what the effect of that conversation was?

A. Yes. I cautioned him that if this time he failed to tell me who was the owner of the motor vehicle and then who was driving the motor vehicle at a particular time of day that he would be committing an offence for which I could take legal action." (21.8.12 - T.11.46)

"Q. Who did he say was driving the motor vehicle?

A. He said he was driving the motor car.

Q. Do you recall who he said the passengers were?

A. Yes, Marwan Salim, Robert Rad and his daughter.

Q. Whose daughter was that?

A. Sorry, Mr Phillips's daughter.

Q. Was there any further exchange between you and Mr Phillips after that?

A. Yes.

Q. What was that?

A. Mr Phillips went on to tell me that he'd just come from seeking legal advice. He told me that he was told to say certain things. He also told me that he had further evidence that he could get hold of in the form of documents that would show that he was innocent of any crime in relation to the Marwan Salim matter and that he had a witness who would provide evidence in the form of a statement, again in relation to the Marwan Salim matter." (21.8.12 - T.12.11)

Detective Whale made arrangements for Mr Phillips to obtain those documents and return to the police station on 10 February. On 10 February Mr Phillips attended the police station accompanied by his mother and a Mr Kewin. Detective Whale said:

"A. On that occasion I informed Mr Phillips that I intended to interview him as a suspect not in custody. He was taken to an interview room and he was formally electronically interviewed after speaking to the custody manager. Following that interview a statement was obtained from Dale Phillips, his mother." (21.8.12 - T.12.42)

Mr Phillips was not legally represented on this occasion.

Mr Phillips provided Detective Whale with a two page typed document which became Exhibit A in the proceedings. The contents of that document were:

"At approximately 2pm while I was babysitting my daughters at there house I had a knock at the door from the neighbour Marwan Salem who asked me how he would go about receiving some money and a car for collateral on some money that a man owed him for work that this man did not/ could not complete on his shop because the man was arriving with both these items. I then said "all I know is that if he is signing over money and the car, the only legal way I know would be to right it down and have both parties sign the document and date it. That's usually binding in a court of law". Marwan then asked could you please write it out as I am not good with this stuff please. I replied "ok". I then got pen and paper and began to write it out for him leaving out the mans name for him to fill in when he arrived. At around 2:15pm the man arrived in a black Honda CRV who parked out the front of Marwans residents who then came over where Marwan was sitting out the front of my daughter's house.

They then proceeded to talk as I went inside. I came back out as they were signing and finalising what they were going to do, they asked for the date upon signing and I said the 27th. While I was standing there hearing that the man hadnt brought the money like he apparently said he was going to, he only bought the car. Marwan said I don't want your car, I need my money, my shop has a deadline and you know this, what good is the car to me? And they continued to talk as I went back inside to my daughter and a friend of mine who was in the house visiting. As I went outside for the second time Marwan then indicated that the man was willing to sign another car over because he did not have the money and if it wasnt too much trouble if I could drive himself and this man over to this mans house as asked by this man, which I then said yes, but youll have to give me 15mins because I have my daughter, they both said no problem.

I got myself and my daughter ready, went out the front and got in my car, as they were getting on the car, I asked Marwan if he could please sit in the back with my daughter as I don't know this man and I dont like strangers near my daughter, she knows you Marwan and it will be easier, so the man then sat in the front passenger seat as I requested. He said no problem. We then drove along Hume highway onto Camden Valley way passing the m7 and going to the service station meters from the m7 to get fuel for my car, after getting fuel we then left the service station in the opposite direction heading back to the m7 where we entered at the Camden valley way entrance at around 3:28pm where he directed me to get off "I think" it was Norwest avenue exit on the m7.

He then verbally told me left right left right until we came to a stop at the front his house on the opposite side of the road. He got out of the car by himself and went inside we waited around 15mins until either the man called Marwan on the mobile or Marwan called the man. The man then invited Marwan in as he was looking for the paper work, while I stayed in the car with my daughter. I waited around a few minutes before they come out together. Marwan then said wait 1 minute we just got to go around the corner. Not knowing what they were doing the man directed Marwan around the corner into a colder sack, where after a minute they both came back in the man's car with the man driving.

He then pulled into his own drive way by reversing in where he then asked Marwan if he could please take some tools out cause he has jobs he has to finish and if he cant finish them he cant get the money. Marwan replied of course you can I dont want your tools or your cars I just want my money, but your telling me you dont have it and to take your cars. Marwan then asked if I could just give them a hand lifting some tools out and putting them beside this mans house where he directed. As we were doing this the mans neighbour (an Asian lady) came out and was standing a meter or 2 away from the car, I said hello to this lady and so did Marwan and she replied hello. We finished unloading and Marwan and I got back into my car with my daughter, Marwan was then sitting in the front passenger seat. The man then began to drive his car down the street and directed us to follow so we did.

He led us down to a shell petrol station a couple of streets away from his house, we pulled in to a parking spot and waited for him to get fuel, after he fuelled up he then led us down through Quakers hill until we got back on to the m7 at around 4:45pm. Followed him down the m7 where he was driving in front of my car, Marwan rang his mobile whilst on the m7 telling him to slow down and not to speed as we got a kid in the car. Getting close to Camden valley way exit, I think Marwan rang him again telling him to get off at the Camden valley way exit and not take the exit before that one, its easier to get off at Camden valley way.

Exiting the m7 we headed home along the Hume highway until we got back to my daughters house. Upon arriving at my daughters house Marwan and the man still discussed some information, I went inside with my daughter. Marwan then came back over and asked me for another favour that if I would give this man a lift to Casula station, I replied yes. The man then realised he had left a tool that he needed and took it out of the van and brought in with him. We then got into my car again with Marwan in the back with my daughter and the man in the front passenger seat. I drove him to Casula station where there is a set of stairs at the top which leads you to Casula station.

He then got out and walked down the stairs, I then drove back to my daughter's house where I dropped Marwan off, he said thank you and I went inside with my daughter."

Mr Kewin also provided a statement to the police in relation to the Salim matter.

The evidence of Detective Whale continued:

"Q. What other information was provided to you by Mr Phillips on that day?

A. Mr Phillips informed me in the late stages of that interview that he had received legal advice from Mr Michael that related to our interview when he came in I think it was January to answer questions in relation to the driving of his vehicle.

Q. You've given us two dates in January, one was 19 January, the other was 28 January?

A. Yeah, 28 January. He informed me that whilst he and his mother were present with Mr Michael, Mr Michael told him to tell untruths, told him that lots of people drive his car and that he couldn't remember perhaps who was driving the vehicle on any given day and time and he told me that Mr Michael suggested to his mother that she may have been driving the car at the particular time. He also informed me that he had provided the document that I referred to before, the typewritten two-page document to Mr Michael. (21.8.2012, T.13.40 - 14.4)

...

Q. You told us that Mr Phillips told you that the accused had told him to go and provide you, the police, with or to say to you, the police, that he couldn't remember who was driving his car on that day; did he tell you when the accused told him that or when he had that discussion with the accused that is when Mr Phillips had that discussion with the accused?

A. That morning.

HER HONOUR: Q. Well what do you mean by "that morning" that would then be the morning of what, the morning of?

A. 10 February your Honour. (21.8.12 - T.14.38)

...

Q. Were the charges against Marwan Salim eventually withdrawn?

A. Yes.

Q. And why was that or what led to that?

A. Based on the evidence supplied by Mr Phillips, the distinct lack of evidence on the telephone intercept material, the evidence of Mr Kewin and the documentary evidence that was provided that I provided to the DPP who were running the Marwan Salim case at that time and then I was advised by them that the matter will be withdrawn." (21.8.12 - T.15.26)

Under cross-examination Detective Whale said that when Mr Phillips was asked to attend the police station on 19 January 2011, he was under investigation as a possible co-offender with Mr Salim. It was for that reason that his mobile telephone calls had been lawfully intercepted. It was for that reason he was interviewed as a suspect not in custody.

Detective Whale said that he had made two statements in relation to the proceedings against the applicant. He said that when Mr Phillips attended the police station on 31 January 2011 he made some notes in his duty book about what Mr Phillips told him in relation to Mr Salim's matter, but he did not make any notes about what he told him in relation to the applicant. He agreed that in his statement of 19 October 2011 he made no mention of Mr Phillips attending at the police station on 31 January and what he had said on that occasion. Detective Whale accepted that his evidence concerning what was said by Mr Phillips on 31 January 2011 was based solely on his memory.

In relation to when Mr Phillips consulted his lawyers, Detective Whale said:

"Q. 10 February, mum was there as well?

A. Yes.

Q. And they'd come from seeing the lawyers then as well?

A. I don't recall.

Q. Didn't you tell us that yesterday?

A. I think it was on the 10th that they had come directly from their lawyers.

Q. But not on the 31st?

A. No, no I think it was on the 10th that they'd come from their lawyers.

Q. Would it be fair to say that there's some confusion in your mind about distinguishing those two different appointments with Mr Philips?

A. No.

Q. You're not perhaps getting the details of one confused with another?

A. Well you indicated previously that they'd come from their lawyers on the 31st. If I am confused I'm confused about what they may have done prior to coming to see me. I do believe however that they came from their lawyers on the 10th. I wasn't with them prior to that." (22.8.12 - T.67.24 - 68.3)

On the same issue Detective Whale said:

"Q. And you can't be certain that anything was said about Mr Michael on 31 January 2011 can you?

A. Yes.

Q. And is it the case detective that you're relying solely on your own memory for that?

A. Yes.

Q. And you'd agree with me that there are absolutely no contemporaneous notes at all, any mention of Mr Michael on 31 January 2011?

A. I didn't make any notes of that meeting with Mr Phillips." (22.8.12 - T.80.19)

Mr Phillips gave evidence for the Crown. His evidence was as follows:

"Q. Did you have any concerns yourself when you found out that Mr Salim had been charged?

A. Yes I did.

Q. Why was that?

A. Once I found out what the actual charge was and exactly what happened, what the police had actually said in their statement, I actually was there on the day and knew the truth to the statement, so I'd actually wanted to physically put my truth to that story to the police so that way they knew the exact whereabouts and times of where we were and what happened that day.

Q. Did you talk to anybody about wanting to put your truth in the story to the police?

A. Yes.

Q. Who did you talk to?

A. Fabian Michaels.

...

Q. At some point did you meet Mr Michael?

A. Yes.

Q. And how did that come about?

A. Well, I spoke to Marwan, Marwan organised a meeting and then we met in Fabian's office.

Q. And where was Fabian's office?

A. In the city.

Q. Do you remember whereabouts in the city?

A. Not the exact address, no.

Q. Do you remember when it was that you met in that office?

A. No I can't recall exactly the date, but it was only a couple of weeks after the actual date of the offence.

Q. And who was present at that meeting?

A. Marwan Salim, myself and Fabian Michaels.

Q. Do you recall what was discussed at that meeting?

A. Yes. I basically went in there as a character reference, I dictated everything down on a piece of paper of all the true events of what I thought and I presented them as a character reference for Marwan Salim to Fabian Michaels to present to the courts or police station.

Q. Did you say you presented that?

A. Yeah well I actually sat there, I gave a verbal, I gave them a verbal thereabouts of it all, I had a time line sort of already written down and sort of dictated, and basically yeah, I gave him all the run downs that day of what I thought as a character reference, what I could remember. (22.8.12 - T.95.45 - 97.3)

...

Q. Do you remember anything that you said to Mr Fabian Michael on that day?

A. Yes, I told him who was driving the car, I told him the exact story on how I seen it, I told him that my daughter was in the car, I told him that basically that we were innocent, that this was not correct, that this did not happen, there was no extortion, there was no violence, there was no nothing, it was just a straight up favour for a neighbour. I had my one year old daughter in the car and basically just told him the story on how it went down.

Q. Did Mr Fabian Michael say anything to you about that?

A. He basically told me that it was irrelevant at the moment, that he really didn't need to know the information and that until it all went through the court sort of thing basically, it was all like never gave me a straight answer, everything was sort of always, you know, just always felt like I never got an answer out of it, you know what I mean, it was always like if you say this, just always made excuses up, if you know what I mean. I didn't get an actual physical proper answer out of him, as in like if you go and do this, this is what will happen, it was always but, but, but, but, but." (22.8.12 - T.97.36)

Mr Phillips said that Mr Salim introduced the applicant to him as a solicitor. He said that no advice was given to him at that time by the applicant, except that he should go home and dictate everything onto a piece of paper and just time line it all.

The next time Mr Phillips came in contact with the applicant was at a kebab shop, some time later. The persons present were Mr Phillips, his mother, Mr Salim and the applicant. Mr Phillips' evidence concerning this meeting was:

"Q. Do you recall what was discussed at that meeting?

A. Yes. By this time I was actually - I think I was actually being asked to come and see Detective Whale at this time. That's why we went up to see Fabian Michael for some legal advice. At the time, I'd asked my mum to come in and sort of see what was going on, because I just didn't feel that I was getting the right help, if you know what I mean. So I got my mum to come up to listen and see what was going on just to see that I was - making sure that everything was all right and have a second opinion on, if you know what I mean. When we arrived up there, I didn't really ask much questions at all; I didn't really talk to Fabian too much, I let my mum discuss a few things, because my mum is a bit more knowledgeable at this sort of stuff. I'm not too knowledgeable in the Court systems. From then on there, my mum just continued on trying to get an answer out of him, like, "What are you doing to my son?" "Are you doing as much for my son as you are for Marwan? It just seems like you're telling my son to say no and this sort of stuff, so what are you going to do?" So at the end of the day, it was really a conversation between them. I just stood back and just - I didn't really answer or talk to Fabian really at all. It was really Mum and Fabian who had the talk.

Q. Just go back a step, you said that one of the reasons for you meeting with, or going to this meeting was that you weren't really getting - you didn't feel like you were getting the right help. What did you mean by that?

A. Well I - when I'd spoken to Fabian I put through that the person in question, which is Marwan Salim, is innocent, I've got time lines, M7 documented times that I'd actually taken the car onto there which actually had the time of entry, time of exit, I had - I wanted to tell him that I knew where I was at the time that I was on CCTV camera at the Shell Service Station at Norwest, also at Camden Valley Way. (22.8.12 - T.100.15)

...

Q. Sorry, so you - continue, you said you didn't feel like you were getting the right help?

A. Yes, and so the first time when I spoke to Fabian I put through that the man was innocent and the vibe that I got was it didn't matter if he was innocent, doesn't matter about anything else, you know, it was basically irrelevant, just have to wait, it all got brought up later on, you know what I mean, it wasn't good information for him. Do you know what I mean, it just didn't seem like he was going to take that solid evidence and present it to anybody, just seemed like it got put on the backburner.

Q. What did you understand that he meant when he said that it didn't matter about innocence?

A. Well to me it just seemed like it didn't matter at this time, it meant more in future date after the arrest had been made or if, you know, the courts came up and you have to present it in court, that's when he would use that evidence. Right now he actually told me he doesn't need to read over it, doesn't need to do anything, you know what I mean, that sort of stuff, he just told me he doesn't need any of that, "Go home, dictate it and I'll tell you when I need it".

Q. And you told us that you went home and you dictated it?

A. Mm-hmm.

Q. Did you have that document with you at this meeting at the kebab shop?

A. Tell you the truth I can't recall if I did or not. No I can't recall. It's too long ago, I can't recall I'm sorry.

Q. Was there any discussion about what was in that document at this meeting at the kebab shop?

A. Yes.

...

Q. Do you remember any specific conversation that you had with Mr Michael about what was in the document that you've prepared?

A. On the night, like I said at the kebab shop I didn't really speak to him too much at that night there, yeah I didn't really - my mum said more than what I did. I didn't really, yeah, speak too much up there, I brought my mum up to be my solicitor because to grill and find out what was going on before I ended up doing time for something that I had nothing to do with.

Q. Can you remember any specific questions that your mother asked Mr Michael?

A. Yeah, one of the statements that he made - she made was that "I don't feel that you're doing as much as what you are for Marwan Salim". It seems like - actually the exact words were, "It seems like you're using my son as your scapegoat", that's the exact words that came out of her mouth.

Q. What if anything did Mr Michael say in response to that?

A. Well he just laughed it off as, you know that would never happen, "We'd never do that to your son". If I remember correctly he was like "We would never lock up someone for their own ... or whatnot, we're here to like find out the innocence and whatnot of the whatsaname", but it just didn't seem like he wanted to listen to my side of the story or take it down, like I had more time lines than anyone else, I had all the documents, it was my car, I knew all the knowledge and everything and it just didn't seem like anyone wanted to take any notice." (22.8.12 - T.101.3 - 102.16)

Mr Phillips remembered receiving a phone call from Detective Whale. Detective Whale told him that he wanted to speak to him to discuss what happened with Mr Salim and answer some questions. As a result, Mr Phillips arranged to meet Detective Whale at the Quakers Hill Police Station a couple of days after the phone call. Mr Phillips said that the telephone conversation with Detective Whale occurred after the meeting with the applicant at the kebab shop.

Mr Phillips said that when he went to the Quakers Hill Police Station on 19 January 2011 he was accompanied by the applicant and a person called John. He met John for the first time at the Blacktown train station when he picked up both him and the applicant to drive them to the police station. Mr Phillips' evidence as to what happened when they arrived at the police station was:

"Q. And what happened when you arrived at Quakers Hill Police Station?

A. Well, we got to Quakers Hill Police Station and we pulled around the corner, I was told to pull up at Quakers Hill train station so that John and Fabian could have a brief read over my statement and my paperwork that I had. We sat there, it was give or take 20 minutes. They read over my statement and basically walked in and told me to say nothing. After walking in and saying nothing Detective Whale then told me to go, he doesn't need me there.

Q. Who told you to walk in and say nothing.

A. Fabian." (22.8.12 - T.105.29)

It was common ground that the statement to which Mr Phillips referred was Exhibit A.

His evidence continued:

"Q. When was the first time you showed that to Mr Michael?

A. The first time I show that to Mr Michaels was I think in the car with John.

Q. When you say "in the car with John", are you talking about this time that you were on your way to --

A. In the car out the front of Quakers Hill train station on the way to see Detective Whale at Quakers Hill Police Station.

Q. Did you see whether or not Fabian Michael or John read that document when you handed it to them?

A. Yeah, they both quickly gave it a read over and had a little discussion between themselves and came up with my answer to tell the Detective.

Q. When you say "had a little discussion between themselves", do you recall what they said?

A. No, they were - it was yeah, out of my league, I didn't know what they were talking about, they were talking about laws and different things and stuff like that, different things they could use in the statement. I wasn't paying too much attention at that stuff there. I was just telling the truth on the day, I was very, very, very, very stressed out, yeah. I basically had to go to the doctor's all through that month because my stress levels were way up there so. (22.8.12 - T.106.13)

...

Q. This was in the car that you showed them the document, is that right?

A. Yes.

Q. Was the document returned to you?

A. Yes.

Q. And did you then keep that document?

A. I can't recall, I can't recall that, sorry, I can't remember that back what I did with that, if I gave them and then got another copy or if I - I just can't remember back that far, I'm sorry. I can't remember what I did with that.

Q. Do you recall whether or not you made more than one copy?

A. Yes, yes, there's more than one copy.

Q. What did you do with the copies?

A. One of them, my Mum's got one, I had one, and I had one for just floating around purposes for in case, you know, anyone wanted one, so I'm assumed, I'm pretty sure I might've gave them on that day, I just don't want to say if it's incorrect or whatnot, but yeah, I just can't remember when I actually gave them a copy."(22.8.12 - T.107.40 - 108.9)

Mr Phillips' evidence as to how he came to be accompanied by the applicant and John on 19 January 2011 was:

"Q. How did it come about that you met with those two men at Blacktown?

A. I received a phone call off Detective Whale stating that he wanted to speak to me in regards to the matter. I then panicked. I don't have any solicitors or any - anything like that, so I spoke to Marwan and Marwan got on the phone and basically told him that we needed to come and see him at now and it's gone further, Detective Whale now wants to charge Daniel in relation to the offence.

...

Q. Just start again, how did it happen? Just start again?

A. I got a phone call off Detective Whale and he told me that I was going to be - he had to ask some questions and may be charged in relations of what happened on that day. I then ran across the road to Marwan Salim, panicking, asking him to ring his solicitor because now I need legal representation for myself.

...

Q. Do you remember the conversation that you had with Fabian?

A. Yeah he just told me not to panic sort of thing and that's all I really remember was basically he told me not to panic, it's all right, "The worse thing they can do to you is charge you."

Q. Was there some arrangement then made to meet with Mr Fabian Michael at Blacktown Railway Station?

A. Yes that's correct.

Q. And who instigated that? Was it you that asked for Mr Michael to be present or did he say to you that he would come along and represent you or what was the - how did it go?

A. From my recollection I think - I can't really remember to tell you the truth. I'm trying to remember.

Q. Were you charged any money for this--

A. Yeah, I paid $500 on the day, I walked in for two minutes and paid Fabian $500." (22.8.12 - T.111.17)

...

Q. So who advised you to bring the $500?

A. Fabian. I've never spoken to anyone else in regards to this case apart from Fabian.

Q. What did he say the $500 was for?

A. For turning up to speak to the police.

Q. For who turning up?

A. For them turning up for Fabian and John turning up. Because I didn't know what John's role was, all I know is every time Fabian wanted to do something he'd discuss it with John." (22.8.12 - T.112.6)

Mr Phillips said that some time later Detective Whale telephoned him and told him that he had more questions for him. They agreed on a date when Mr Phillips would attend the police station. Mr Phillips contacted Mr Salim, who then contacted the applicant on his behalf. Mr Phillips said that he cancelled the first date because he wanted to speak to the applicant first. He said:

"A. I spoke to Detective Whale telling him that I couldn't make it on that day and he said, "Look that's fine, there's no rush as long as you come in and see me within the week that's fine", so I did." (22.8.12 - T.112.41)

Mr Phillips thought that he only met Detective Whale on two occasions. He said that he did not make a note of the number of times that he spoke to Detective Whale. In relation to the second time that he saw Detective Whale Mr Phillips said:

"Q. When you went to see Detective Whale on the second time, did you - sorry, do you remember what the date of that was?

A. It was the day that I made the statement, I can't remember the date, but it was the day that I made the statement.

Q. Just the day that you made the recorded interview with Detective Whale?

A. That's correct.

Q. Had you seen or met with Fabian Michael again before going and seeing Detective Whale, that is in between the time that you went, the first time you went into the police station and the second time?

A. Yes, I met with him in the city for a brief meeting.

Q. Do you recall where that was?

A. Beside his office in the city." (22.8.12 - T.113.24)

Mr Phillips identified the day when he signed the statement as 10 February 2011. His recollection was that he signed the statement after he had participated in the electronic interview at the police station. He was then asked questions about meeting the applicant before going to the police station on that day. His evidence was:

"Q. Just go back, you said that you met, on the same day you said that you met Mr Michael in the city beside his office, whereabouts was it beside his office?

A. There's a little alleyway beside his office where there's some café shops, like little takeaway café shop, and we just sat in there at a little table and chairs with an umbrella. He took our mobile phones off us and put them behind the café shop's counter and we sat down and had a briefing.

...

Q. Are you able to say with reference to any streets or buildings or anything like that in the city where this meeting took place?

A. Yeah, something Tower, I think it's called, I don't know the name of it or whatnot, I've only been there twice in my whole entire life so - like I said again, them times I was under a lot of stress, so didn't pay attention to my surroundings, I was only there for one reason, and one reason only, and was to clear my name and get out of there safely.

Q. Who was present at that meeting?

A. My mother and Fabian Michaels. (22.8.12 - T.114.21)

...

Q. I'll just go back a step: can you remember the words of the exact conversation that you had with Mr Michael leading up to organising that meeting?

A. Yeah. I spoke with - I spoke to him and he told me that he couldn't come out and see us and we'd have to go in and see him in the city. So I spoke - I rang my mother and told her about the situation and she said, "Let's go in and get it done asap", so we just went straight in there. The conversation was just brief on the phone; it wasn't anything about any information. It was just basically we were going to me up at --

Q. Was there any conversation about what it was the police were going to ask you?

A. Yes.

Q. I'm talking about on the telephone?

A. No, not on the telephone. At the - at the kiosk or the café there was, but not on the telephone.

Q. Can you remember what conversation you had with Mr Michael using - as best you can - referring to the exact conversation if you can to the words that were said?

A. On the mobile phone or at --

Q. At the meeting?

A. At the café?

Q. Yes?

A. We were taken around to the side to the café, sat down at a table and the conversation basically started off as in, "I've spoken to John, we've come up with an answer for you to say. That answer is this answer," and he came up with, "I don't know who was driving the car on the day" that "Heaps of people drive my car: friends, family, mother, father et cetera. Now I can either come down there and say this for you or you can either go down there and say it and save yourself $500."

Q. When he said "answer to say", what did you understand that he was--

A. My understanding--

Q. -- answer to what?

A. My understanding is that he - Fabian and Detective Whale had already had a conversation about the two questions that I was supposed to answer. Fabian rang me back and told me that he had spoken to Detective Whale and that he wanted to ask me two questions. They were specific questions. He told me, but I can't recall that he told me the exact questions, so I went to the city to speak to Fabian and to have that meeting to get an answer for both those questions, that they'd already organised on the phone previous to me.

Q. You've told us Fabian Michael has told you the answer to the question, your answer to the question should be - one question is that you don't know who was driving your car on that day, did you say anything to him in respect to that answer when he suggested that to you?

A. Yes. Yeah, I did. I told him that I didn't want to like bring my family into it or friends and that. I'm an innocent - I told him I was innocent that basically that all this didn't happen, I don't want to bring my friends and family into it too.

Q. Your evidence so far has been that you knew who was driving the car on that day. Is that correct?

A. That's correct.

Q. Well did you say that to Mr Michael?

A. Yes.

...

Q. What did you say to Mr Michael when he said to you that you should answer the question who was driving your car by responding you don't know who was driving your car. What if anything did you say to Fabian Michael?

A. So what did I say to him after he told me that I should tell the police that - my response, I was shocked. I didn't want to bring my family and friends and everybody who was close and dear to me into this rigmarole because I was already in it as an innocent person, I didn't want to bring anyone else into it. So that was definitely against my - what I was going to do.

Q. Do you remember what your answer was to --

A. I couldn't tell you.

Q. Do you recall whether or not you did answer the question?

A. Yeah. I told him around the same - the lines that I didn't want to implement my friends and family. That was what I told him basically, but I can't remember the exact words that were said. No.

Q. Did you have the two page document that we've been referring to, exhibit A? Did you have that with you on that day?

A. No, I'm pretty sure that Fabian would already have a copy of that. I think my mother emailed him a copy just as a reassurance that he had it, he got it.

Q. Was there any discussion about the contents of that document at this meeting at the café?

A. No, there was no - there was no response to my statement at all, there was never one. Like, my statement never ever came into our conversation it was always what could be said to not say my statement.

Q. Sorry, could you just - I might need you to explain that a bit.

A. Every time I said my statement my statement was irrelevant. I needed to basically like have a different answer for that. So if I said this is what I said they were saying "You can't say that, you need to say this."

Q. Well, was that - any conversation similar to that take place at this meeting at the café in the city?

A. Yes.

Q. Do you recall exactly what the conversation was?

A. Yes, he said to me that if I said the wrong word that the police would twist it around and I could be locked up or charged for saying the wrong thing.

...

Q. You've said that you didn't want to implement your family, what do you mean by the word --

A. I meant incriminate when I did that statement. I'm not - I don't use those big words. I hardly ever use those words but, yeah, that's what I meant by that was incriminate.

Q. Incriminate.

A. It says implement on the statement but, yeah, it was incriminate, which means bringing my family and friends into a criminal action that they had nothing to do with.

Q. Do you remember what, if anything, was said to you when you told Fabian Michael that you didn't want to incriminate, or words to that effect, your family?

A. He basically just gave me the answer to say to Detective Whales after that which was basically to say I didn't know who was driving the car and he went along to say, you know, like something about dates, either police were saying - I'm not too - I can't really recall it too much, sorry, to tell you the truth. I'm just - I'm trying to remember it all, it was too long ago.

...

Q. You were motioning to your hand there, what was that in reference to?

A. Fabian got me to write down my statement on my hand, to show Detective Whale and the way he had writ it on my hand I could not say it because them words do not physically come out of my mouth. The words that he - the sentence that he writ down it was coming out like wrong.

Q. What was --

A. He got it writ down on my hand that I could practise it all the way to the police station in the car.

Q. What were the words, can you remember?

A. Somewhere to the content of, "I don't know who was driving the car on this day", or something like that.

Q. Did you understand the words?

A. I understood them but they just didn't seem like they were coming out of my mouth fluently.

HER HONOUR: Q. Who wrote it on your hand?

A. I physically writ it on my hand but he told me, "Write it on your hand. Write this on your hand, that way you can practise it on the way to the police station". And Detective Whale seen it because I showed him because I was there because after I'd said that.

Q. Your earlier evidence was that you had handed a document to

Fabian Michael stating that you were the driver of the car and who were the passengers in the car and you told us that there was some discussion about that document between Fabian and John in your presence. Did the content of that document or the fact that you did know who was the driver of the car come up in this conversation at the café in the city?

A. No, Fabian already knew that I was the driver, he knew my daughter was in the car, he knew everything about that already so that conversation." (22.8.12 - T.115.20 - 119.7)

The above evidence at T.115.47, T.118.12 and T.118.35 comprised the evidence of Mr Phillips in chief as to the offence. That evidence was given against a background of Mr Phillips having told the applicant on a number of previous occasions that he was the driver of the car at the relevant time.

Mr Phillips went on to say:

"Q. At the time that you were having that conversation with Mr Michael in the coffee shop and he was telling you to say that you didn't know who the driver of your car was, you knew at that point that that wasn't the truth, is that correct?

A. That's correct.

Q. And was the fact that you knew that that wasn't true ever raised with Mr Michael at that time?

A. Not at that time no.

Q. Why didn't you raise it with him at that time?

A. Because I'd already raised it to him previously and I was only there to get answers for the questions that Fabian organised with Detective Whale, so the meeting was just about the two questions that the detective was going to ask, not about anything else, nothing more, nothing less.

Q. After you left the meeting at the café what did you do?

A. Made my way to the Quakers Hill Police Station." (22.8.12 - T.119.36 - T.120.2)

Mr Phillips said that the applicant told him to hand over his mobile phone and all recording devices to the waitress at the cafe because the police could tap phones. Mr Phillips did not question the applicant about that, but he and his mother handed over their mobile phones to the waitress. He said that he had $500 on him at the time to pay for someone to come with him to the police station, but because he had written something on his hand he was prepared to go to the police station and save himself the $500. Mr Phillips said that when he went to the police station he was accompanied by his mother.

Mr Phillips' evidence was that he was so nervous by the time he got to the police station, that he could not remember what to say and as a result, Detective Whale said that he would have to charge him. Mr Phillips' evidence was:

"A. I couldn't talk. I lose it. I just - my mum was sitting there. I couldn't talk to him. I broke down in front of him. I just said to him, "Mate. No, no, no, no, no" and then I said "Just, no, just stop" and then basically I said "Look, mate, I've been told to say this. I've been trying to tell the truth, I've been trying to get my statement on record." Basically from then on there he just said to me, "Look, have a chat with me, tell me a briefing of it, of your side of it. I'll turn the microphone off, we'll have a man to man discussion, tell me what you think. So I told him exactly what I thought and my recollections of that day and he told me to put it on as a statement. Would I put that on and I said "No problem at all". So we began to put it on the statement and on file.

Q. When you say put it on a statement are you referring to the electronic?

A. Yes. Yes, put my statement onto an electronic device. Yes. I already had my statement handwritten out already and just passed it on to Detective Whales after I'd already gave him a little bit of a briefing.

Q. Did you have any other documents with you?

A. Yes, I had my M7 timelines. I also had some writing on a bit of paper of the exact time that I pulled into the two service stations before and after. Yeah, just the timelines of entering the M7 and exiting the M7." (22.8.12 - T.122.19)

Mr Phillips said that he had Mr Kewin with him on that day. When asked what he told Detective Whale that the applicant had said, Mr Phillips' evidence was:

"Q. Can you remember exactly what it was that you told the detective that Fabian Michael had told you to say?

A. I can't really remember the exact words, but it was just along the lines of, "Didn't know who was driving my car," yeah and just basically about that - it had come down to basically who was driving my car, because the two questions that were asked were around my car, it was all around my car: where was my car, did I know where my car was at this time, or something like that. It was all questions towards my car." (22.8.12 - T.125.15)

During cross-examination Mr Phillips said that he may have visited the police station on three occasions:

"Q. Why do you say that, Mr Phillips?

A. Because after sitting down and recapping after yesterday, I'm - I'm missing a little part of my story which basically is when we arrived at a police station, so I think I might be getting them mixed up, I'm not too sure, but at the end of the day it's two or three times.

Q. Mr Phillips, are you making this up as you go along?

A. No, because it should be on record when I went into the police station." (23.8.12 - T.156.47)

Mr Phillips' recollection was that his mother accompanied him to the police station on one occasion only.

When cross-examined about 31 January 2011 Mr Phillips said:

"Q. Do you remember that on 31 January you went into the police station and spoke to Detective Whale, remember doing that?

A. On what day, sorry?

Q. 31 January 2011?

A. I'm not too sure if I did or not.

Q. A little bit longer than a week before your interview?

A. Yeah probably.

Q. Probably or you remember it?

A. I don't know the dates, I really can't remember to tell you the truth.

Q. Didn't you go in to see the detective a little more than a week before your interview where you told him everything?

A. I can't remember, I can't remember back that far.

Q. You can't remember?

A. No.

Q. No memory at all--

A. I thought it, I thought it was the same day, I thought it was the same day to tell you the truth. It was that long ago I can't remember, I cannot remember the days that I went in on, on to see a police officer or what-not and I got knocked back and told another date.

Q. Well don't you remember that you said to the detective, "I can go away and get some evidence."?

A. Actually I do remember that, mm-hmm.

Q. See what I want to suggest to you is that on 31 January you had already told Detective Whale what had happened between Mr Rad and Marwan?

A. I gave him brief, brief discussion --

Q. No, I want to suggest to you you had told him what had happened?

A. No.

Q. You had told him your role?

A. Briefly.

Q. You had told him that it was your motor vehicle that was involved?

A. Briefly.

Q. You had told him that you were the driver?

A. Briefly yes.

Q. So you had no need to go and consult with Mr Michael on 10 February and find out how to answer any questions did you?

A. Why - yes I did. (23.8.12 - T.186.9)

...

Q. Well what I'm suggesting to you is that you told the detective your version of what had happened and that's why you had to go and get the evidence to back it up?

A. Mm-hmm.

Q. Is that right?

A. Pretty much yeah.

Q. Well it's right isn't it?

A. Pretty much yeah.

Q. Well what's not right?

A. But I can't recall - I don't know because I can't remember that day, I --

Q. Well why are you agreeing with it if you can't remember it?

A. Because if you're saying it, it must be true then.

Q. What I'm suggesting to you, Mr Phillips, is that on 10 February you didn't need to go and speak with Mr Michael to get legal advice because you had already answered the questions of Detective Whale?

A. No.

Q. You hadn't answered the questions?

A. No I hadn't answered his questions, no.

Q. So you'd given him a version but he still had more questions, is that right?

A. I - well at the end of it he didn't - I didn't answer the questions that he asked, I just told my story.

Q. So why did you need to go and see Mr Michael?

A. For some legal representation in case something went wrong." (23.8.12 - T.188.10)

Mr Phillips was cross-examined as to his recollection concerning conversations with the applicant:

"Q. I suggest to you that your memory in relation to the events as they concerned Mr Michael is not very clear?

A. Mm-hmm.

Q. Do you agree with that?

A. In some parts.

Q. This is one of those parts?

A. Not really.

Q. You can't be certain that particular words were used in particular situations, can you?

A. No, but I can remember introducing Fabian to my mother as my solicitor.

Q. You said that?

A. Mm-hmm.

Q. Where was that?

A. The kebab shop, 12.30." (23.8.12 - T.191.1)

Mr Phillips was definite that he had introduced his mother to the applicant. He was definite that there had been a meeting at the kebab shop. He denied that the only meeting in the city involved his mother, John, the applicant and himself. He denied that the only meeting that took place with the applicant in the city was in an office. Mr Phillips said that the only time that he ever met John was when he picked him up at the Blacktown train station and took him to the police station. Mr Phillips denied that his mother had ever met John. Mr Phillips said that his mother had emailed a copy of Exhibit A to the applicant.

Mr Phillips was cross-examined as to what the applicant said to him:

"Q. Mr Phillips it's your evidence, is it not, that you were told to say certain things?

A. Correct.

Q. And at the time that you were told to say those certain things you were given a reason for saying them?

A. That's correct.

Q. And the reason was that your words would be twisted otherwise?

A. That's correct.

Q. You were also told that you might get arrested, is that right?

A. Not by Fabian but by the police officer but I can't recall if Fabian and that said that either so that was my answer.

...

Q. Did you tell us yesterday Mr Michael - your Honour it's page 112 of the transcript at lines 16 to 17 - "Every time Fabian wanted to do something he'd discuss it with John". Is it the case that every time you spoke with Mr Michael and you asked him for some advice he would speak to John before telling you what to do?

A. No, he didn't do it that night at the kebab shop.

Q. He told you that he was going to speak to John about it, did he?

A. No.

Q. So every time he wanted to do something he'd discuss it with John?

A. Well once he found out something that he thought was all right he'd speak to John about it.

Q. You were never told you've got to go in to the police station and tell this lie to help Marwan out, were you?

A. (No verbal reply)

Q. Marwan was never given to you as the reason for going to the police and saying that you didn't know who was driving your car, is that right?

A. No.

Q. It's not right?

A. Mm hmm, it's not right.

Q. It's not right?

A. No.

Q. Okay, so Marwan was given as the reason is that right?

A. No, no sorry I've got it round the wrong way, sorry about that.

Q. So you're agreeing with me --

A. Mm hmm yep, sorry it's a little bit confusing I know.

Q. It's a little bit confusing?

A. I know, sorry.

Q. You're agreeing with me that no one ever said you've got to do this for Marwan?

A. No it wasn't for Marwan.

Q. The reason you understood you were going in there was to protect yourself, is that right?

A. At the end of the day and also be a witness for Marwan.

Q. Mr Phillips, I want to suggest to you that at no stage did anyone tell you that you have to go in there and lie?

A. That's incorrect." (23.8.12 - T.194.39; T.195.30 - T.196.26)

In re-examination Mr Phillips gave the following evidence:

"Q. You were asked some questions about whether or not you were uncertain about the days and dates that you had contact with Detective Whale and your answer was you're not certain about the days and dates but you're certain about what you said, what did you mean by that?

A. Well I'd been playing the actual events around in my head since the time it happened so every time I thought of something I was making sure that I had it down on the computer and just basically yeah put my statement down on the computer, so I sort of knew, I knew the events of that day better than I knew the timelines and like you know what I mean, I knew what happened, who was there and how, how it happened but I couldn't tell you the times, the date of that day or what the weather was." (23.8.12 - T.201.40)

Dale Phillips, Mr Phillips' mother, gave evidence in the Crown case. She said that some time after August 2010, he told her that he had received a phone call from the police and was in trouble. She said that Mr Phillips had borrowed $300 from her and $200 from Mr Salim to pay for a solicitor and a QC who accompanied him to the police station. When she asked Mr Phillips what had happened at the police station he said "I don't know".

Some time after he had been to the police station, Mrs Phillips became aware that an appointment had been made for Mr Phillips to meet the applicant at a kebab shop on a Friday night. Mrs Phillips was concerned about the situation so she decided to accompany him to the meeting.

Mrs Phillips said the meeting took place in late January 2011.

Mrs Phillips said that the meeting took place at night in a kebab shop, which she believed was owned by Mr Salim. She said that Mr Salim, the applicant and Mr Phillips attended the meeting. Mrs Phillips asked some questions of the applicant, in particular what Mr Phillips was charged with and why he could not just go and tell his story to the police. She said that the applicant responded to the effect that Mr Phillips could get himself into trouble if what he said had a double meaning, but otherwise she did not have a clear recollection of what was said by the applicant, except that he did not directly answer the questions which she put to him.

Mrs Phillips said that Mr Phillips asked a number of questions of the applicant, but that no satisfactory answers were given. When Mrs Phillips asked whether her son should go and get another solicitor, the applicant said "Oh, you can go and get another solicitor if you want, that's up to you" (23.8.12 - T.215.42).

In relation to the charges, Mrs Phillips remembered the applicant saying something about kidnapping and extortion and taking somebody against their will and that it was very serious and that "the boys could go to gaol for ten years or more". In relation to whether any specific advice was given by the applicant at that meeting, Mrs Phillips said:

"Q. What did he say to him?

A. Basically not to turn up unassisted like without any legal help and that to not do anything, do not go and talk to the police, wait till you got representation and then you can go and then we can set the terms on what they can ask you. Daniel just kept saying to him, "But why can't I just turn up and tell him what I know." And they said you can but if they read it this way or that way then you've got yourself in trouble you've said the wrong thing." (23.8.12 - T.216.19)

Mrs Phillips gave evidence about another meeting with the applicant:

"Q. Did you see Fabian Michael any other time after that?

A. Once before we went to the police station.

Q. When was that?

A. On the day that Daniel turned up to the police station to make the statement - no, he made a statement two days later. We had to go and be questioned by Detective Whale and before we went there it was either going to be maybe one of them will come with us and that will cost us another $500 or we can go down and spend - have a meeting with them first and they can run us through what to say, what to do and what's going to happen when we get to the police station. So we went to the city and we had a meeting, which we thought we were having a meeting with this John and ended up having a meeting with Fabian in an alleyway and that's when he told us what to do and what to say and when we left there we went to Quakers Hill." (23.8.12 - T.219.11)

Mrs Phillips said the only people present at that meeting were the applicant, Mr Phillips and herself. The location was in an alleyway in the city between two buildings where there were cafeterias. She thought it was at "Worlds Square".

Mrs Phillips gave evidence as to what occurred at the meeting:

"Q. What was discussed at that meeting?

A. What was discussed at that meeting was there'd been - Fabian told us that they've had discussions with the police and everything and they're only allowed to ask Daniel one, a couple of questions right, they're going to ask you your name, your address, is it your car and he said once you've answered them you don't have to answer anything else and if they ask you anything else this is what you have to say and he rehearsed him on what to say.

Q. He what him, sorry?

A. He rehearsed him on what to say.

Q. When you say rehearsed him what took place?

A. He said that "I want you to sit back and go hmm", what was that again, like you didn't hear him. He said to give yourself time to think and then he said he had to say, I can't remember the exact words, but he had to say "I'm sorry I do not recall who was driving my car on that day" and Daniel said "Well I just got to tell them I don't know" and he said "No you can't say I don't know because if you say you don't know you're not satisfying the question, you must satisfy them with an answer to the question", this is all of a - I didn't quite understand it all.

Q. Was that the only thing you can recall that he was told to say that he can't remember who was driving the car on the day?

A. No, no he wanted us to say that we all drove Daniel's car and we borrowed his car all the time and any one of us could've been driving his car that day.

Q. When you say "He wanted us to say"?

A. Sorry, myself, he said friends, his father, sister, myself. He said "You've driven his car before" and I said "I have" and he said "Lately" and I said "No" and he said "Yes you have" so I said "Okay".

HER HONOUR: Q. What did you say when he said --

A. I said okay, I just left it at that, okay I said to him and he said we could get statements, we should get statements off other family members to say that they drive the car constantly and anyone who drives your car get statements off them to say that they drive your car and don't know what day it was.

CROWN PROSECUTOR: Q. Was it discussed what was the reason for getting these statements or what was to be done with them?

A. Because that way they can't say that you were driving your car." (23.8.12 - T.221.39 - T.222.32)

Mrs Phillips said that the applicant took their mobile phones and gave them to a person who was working in the cafe. Mrs Phillips went on to say:

"Q. During this meeting what was Daniel doing?

A. Sweating, sweating bullets, trying to concentrate on what Fabian was telling him to say.

Q. Was he able to concentrate - from your observation was he able to concentrate on what he was being told?

A. No, Daniel couldn't get it at all. It was like a sentence that Daniel wouldn't normally talk like, you know, and it wasn't coming natural to him saying it and he just kept getting it wrong, kept getting it wrong so Fabian would sit back and act like he was the person asking the question and Daniel was to answer it and every time he answered he said "No stop, we'll go back again" and he kept asking the question and getting Daniel to answer the question.

Q. Was anything else done to help Daniel remember what to say?

A. Yeah, he wrote it on Daniel's hand.

Q. Who wrote it on Daniel's hand?

A. Daniel wrote it on Daniel's hand. He told him he could though." (23.8.12 - T.223.1)

Mrs Phillips gave evidence that during this meeting Mr Phillips told the applicant on a number of occasions that he was the person who was driving the car and asked him to look at the Etags and told him to have a look at the CCTV which would show that he was driving the car. She said that before Mr Phillips went to the police, she had not made a written statement. Mrs Phillips said that after her son had had the meeting with the applicant and John at the police station, she emailed Exhibit A to the applicant. Mrs Phillips could not recall how she obtained the applicant's email address but was able to repeat it when giving her evidence.

Mrs Phillips' evidence continued:

"Q. You just told us a moment ago that you knew that Fabian knew what he was telling to say wasn't true. Did Fabian say why he wanted Daniel to say that to the police?

A. Because if he said the wrong thing, he'd be charged and he could be charged and it's a very serious matter and he could be looking at gaol time, ten or fifteen years so he had to be very careful what he said." (24.8.12 - T.234.5)

In relation to how many times Mr Phillips went to the police station, Mrs Phillips said:

"Q. How many times are you aware of that Daniel went to the police station?

A. He met Fabian and John there once, then we went. I went with him once and then we went back a couple days later and he made a statement. (24.8.12 - T.234.48)

...

Q. The first time you went to the police station with Daniel, do you recall how long you were at the police station for?

A. Not very long. The first - the first meeting I had with Detective Whale was after we went to Sydney and we had a meeting with Fabian in the city and that's when he had to go and say these things to Detective Whale. They had him so confused that when we walked in the door I was surprised, because Detective Whale said to me "you come in too", so I went in and sat with him as well.

...

Q. Just describe how he looked without --

A. Daniel. Daniel was a mess; Daniel was sweating; he was confused, he was at tears; he had tears in his eyes. And then when the detective asked him the first question, Daniel repeated what he was supposed to repeat, but he wasn't supposed to repeat it at that time.

Q. What was the first question that he was asked?

A. "Is your name Daniel Phillips?"

Q. Do you recall what his answer was?

A. Daniel said, "I don't recall," and completely muddled up. He'd rehearsed it that much that he answered the wrong answer.

...

Q. You were just pointing at your hand then. What were you--

A. Because that's what Daniel had to repeat, that was written on his hand. I'd also written it on a piece of paper and had it on the dashboard for him, because the pen wouldn't work properly on Daniel's hand because his hand was sweating so much.

...

Q. What did he say to Detective Whale?

A. When Daniel mucked up what he was supposed to say and didn't say the right answer to the right question, he just put his head in his hands, he didn't know what to do, and Detective Whale just pushed the book aside that he had in front of him in folders and he pushed it aside and he said, "Look, mate, what's going on?" And Daniel said, "What do I do, Mum?" I said, "Just tell him, tell him everything." So then Daniel just started telling him and just never stopped.

...

Q. What was mentioned about Fabian to the police at that time?

A. Well, he asked naturally why Daniel wouldn't come in. Detective Whale had asked Daniel, rang Daniel a couple of times and asked him and come in and talk to him about it. So then we went on to say because we were told - he was told he couldn't and we told him the story, you know, that he shouldn't turn up because he could be arrested and he was looking at serious charges and Detective Whale said, "Look, mate, all I ever wanted you to do was come and have a chat with me about it," you know. And then Daniel just went on to tell the whole story about everything that's happened right up to that point and the meeting that we'd had just prior to that, you know, right up to that point." (24.8.12 - T.235.13 - T.237.10)

Mrs Phillips said that she only ever had two meetings with the applicant. One was at the kebab shop and the other meeting was in the city in the alleyway. She provided the police with a statement on the second occasion that she went to the police station. Under cross-examination she confirmed that at the second meeting with the applicant Mr Phillips wrote the response to a question on the palm of his left hand.

In cross-examination Mrs Phillips said:

"Q. Wasn't that the day that you made your statement?

A. No, the day we left Sydney to go to Quakers Hill for them to ask Daniel these questions, that's when Daniel got it wrong telling the detective everything that happened on that day, and he said to him, "Well look relax now and do me a favour, go - just relax", because he could see Daniel was very stressed, "Just relax", and he said, "Have you got anybody else that was a witness on the day of the events when they -- Daniel gave these blokes a lift". He said, "Yeah, Chris.". He said, "Can you bring Chris back with you?" we said, "Yes". We booked in, I think it was a couple of days later, I think it might have been a Friday night, 5 o'clock or something, and we brought Chris, Daniel's friend, back with him and all three of us made a statement." (24.8.12 - T.256.45)

Mrs Phillips denied that she had only met the applicant on one occasion and that the meeting in the kebab shop did not take place. She denied that the only time she met the applicant was when he was accompanied by John. She denied that when she met with the applicant it was in an office in the city. Her answers on this issue were unqualified:

"Q. I want to suggest to you that the meeting that you had in the city, John was present and he was the one who was doing all the talking?

A. No, I've never met John.

Q. I want to suggest to you that it was John who told you about the law and that Daniel had to answer certain questions?

A. Never. I never spoke to John. I was questioning who this John was. I never met him. Never spoke to him.

Q. I want to suggest to you that you did get an opportunity to ask John questions about why Daniel had to answer this?

A. No, I never met him." (24.8.12 - T.263.27)

When further cross-examined on this issue, Mrs Phillips said:

"Q. There was never any occasion where you heard Mr Michael - Fabian say to Daniel that he had to tell a lie. You never heard him say anything like that?

A. He never said the word "lie".

HER HONOUR: Q. What did you say sorry?

A. He never said the word "lie" he just - when Daniel would say something he'd say "You can't say that. You have to say it this way" and he'd correct Daniel and told Daniel "You can't say it that way". He said when Daniel said when he was telling him to repeat this line over and over and over again and then he'd ask the question. He was acting like he was the detective asking Daniel a question and at one time Daniel said "I don't know". He said "No, you can't say you don't know. You have to say I don't recall". He said "Because if you say you don't know, you're refusing to answer the question". And it was, all this was new to me. I couldn't understand any of this." (24.8.12 - T.265.1)

The applicant did not give evidence. The only oral evidence in the defence case was from John Parnell, who had been a magistrate for 18 years and a barrister for 24 years. Mr Parnell had known the applicant for about 6 years. He had first met him when the applicant was working as a law clerk for a solicitor and for about 3 years, the applicant had done some clerking work for Mr Parnell, as well as directing clients to him. The applicant was studying law.

Mr Parnell gave evidence that he was approached by the applicant to accompany Mr Phillips to the Quakers Hill Police Station where it was expected that Mr Phillips would be interviewed and arrested. Mr Parnell said that before accompanying Mr Phillips to the police station, he had not met him, knew nothing about the anticipated charges and did not even know Mr Phillips' name. He said that having met Mr Phillips, he did not provide any advice to him, did not in any way discuss charges likely to be laid nor the factual background to the anticipated charges. Mr Parnell said that when they arrived at the police station, he did not speak to the investigating officer but allowed the investigating officer to speak with Mr Phillips where he [Mr Parnell] could not hear what they were saying. No further conversation took place at the police station before they left.

Mr Parnell said he was paid $300 by Mr Phillips for attending the Quakers Hill Police Station. He did not issue a receipt for this amount. He could not remember how the fee had been agreed. When Mr Phillips returned him and the applicant to the car-park, no arrangements were made for a further meeting.

Mr Parnell said that he met Mr Phillips again some weeks after the attendance at the police station. He met him at the applicant's office at World Square. Mr Phillips was accompanied by his mother. Mr Parnell could not remember the purpose of the meeting. He could, however, remember what occurred at the meeting.

Mr Parnell said (24.8.12, T.281.45) that Mr Phillips asked what his obligations were as the owner of a vehicle if the police wanted to know if he was driving it at a particular time. Mr Parnell explained his obligations under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and the penalties if he gave false information. Mr Parnell provided him with a photocopy of some sections of LEPRA. Mr Parnell said that he told Mr Phillips "these are your obligations, tell the truth". Mr Parnell said that Mr Phillips and his mother left some minutes later. At the time they left he had the understanding that they were going to attend the Quakers Hill Police Station later that afternoon. Mr Parnell denied that Mr Phillips ever produced a statement and that the applicant gave any legal advice during the meeting. Mr Parnell denied that either he or the applicant had asked Mr Phillips to write anything on his hand at that meeting.

Mr Parnell said that he had appeared for Mr Salim at a couple of adjournments of the proceedings brought against him. There was no mention of Mr Salim in his dealings with Mr Phillips. He was aware that there might have been some connection between them but he could not remember what that connection was. Mr Parnell said that there was no suggestion at any of the meetings with Mr Phillips that he had to act in a particular way so as to protect Mr Salim.

Mr Parnell was cross-examined by the Crown (27.8.12 - T.293 - T.342). The effect of the cross-examination was that Mr Parnell's description of what had occurred leading up to the attendance by him, Mr Phillips and the applicant at the Quakers Hill Police Station was unbelievable. He was cross-examined to similar effect concerning the second meeting with Mr Phillips.

The flavour of the cross-examination can be seen from the following:

"Q. ... If you had a client that was going to the police station by an appointment or had been arrested and taken to the police station, it would be normal for a solicitor or a barrister to give some preliminary legal advice to that client. For example in respect to their right to silence or things such as that, do you agree with that?

A. Well depends what you're asked to do.

Q. If you were asked to represent somebody who had been arrested or had an appointment to appear at the police station then that is the type of advice you would be giving that client is that right?

A. If it was sought from you.

Q. Well if somebody retained you that was about to be arrested, or had an appointment at the police station what sort of advice would you be giving them?

A. Well depends what they say to me, you know what the you know.

Q. Well you'd have to get some information off him first wouldn't you about what they were going there for?

A. Yes, yeah.

Q. What type of matter it was?

A. Well he'd be told that why they were going there.

Q. And who would you expect would tell you that?

A. The client.

Q. Or some other person that was representing them, a solicitor for example?

A. Oh if there was a solicitor yeah, you'd get a short briefing about it from a solicitor.

...

Q. But the relationship generally between the barrister and the solicitor or the clerk is that the - if there is a solicitor and a clerk involved that they would perhaps provide you with some brief information or some information about what the matter is and they would obtain instructions from the client, would you agree with that?

A. Well normally if you're told why, you know, why you're required.

...

Q. You'd be told what type of matter the client was going to be questioned about or charged with, do you agree with that?

A. Generally yeah, yeah.

...

Q. In any event if you're going to the police station to talk about - talk to the police or represent somebody in respect to a particular offence you'd want to know what that offence was, do you agree with that?

A. Look, you act on the request for somebody.

Q. Well if somebody says to you look I want you to come down to the police station and represent me because I'm going to be charged with an offence, you'd want to know what the offence he was going to be charged or he or she was going to be charged with was wouldn't you?

A. If they put it that way yes.

Q. You'd really want to have that information before you went down to the police station wouldn't you?

A. Sometimes I suppose yeah. I mean you can't speak generally about these matters. Every case is an individual case.

Q. Well if a solicitor or somebody rings you up or a clerk or somebody rings you up and says can you come down to the - can you come and meet a client he's going to the police station to be questioned by the police you'd asked wouldn't you what was the charge; it would be the first thing you'd ask?

A. I might yeah, might not.

Q. Are you suggesting that you may not be interested in the charge?

A. It's not a question of me being interested, it's a question of what you're asked to do.

Q. So sir are you suggesting that if somebody rings you up and says look can you come down to the police station I'm going to be charged with something you what, just turn up at the police station and see how it goes, you wouldn't ask?

A. If somebody said I'm going to be charged with something I'd probably ask what it was." (28.8.12 - T.298.9 - T.301.6)

Mr Parnell said that there must have been some discussion in the car with Mr Phillips but he could not remember what that was. He remembered that there was some talk about Mr Phillips' employment history but he could not remember much more. He did not recollect any discussion about the reason why Mr Phillips was going to the police station. He did not recollect what, if anything, the applicant told him about why they were going to the police station. Mr Parnell did remember:

"A. Mr Michael contacted me, he said he had - there was a man wanted - was going to - had been requested to go to Quakers Hill Police Station and he expected to be arrested when he got there. He wanted somebody to be present at his interview." (27.8.12 - T.305.44)

Mr Parnell said that he could not remember whether the applicant or Mr Phillips provided him with more information about the charge. He did remember that he was not asked to give Mr Phillips any advice as to his rights. In relation to his role at the police station, Mr Parnell said:

"Q. What did you understand your role was going to be at the police station?

A. Be present at any interview that took place.

Q. But for what purpose?

A. Because I'd been requested to be there.

Q. To protect his rights?

A. Nobody said anything about that, no. There's a limit to what you can do when you're present at an interview and you can't hinder the investigation.

Q. No but you can give your client advice as to what his rights are, for example, do you agree with that?

A. If it's requested.

Q. Before you walked into the police station, did you know what the charge was that he was being investigated for?

A. No.

Q. So are you saying that you would go to a police station with a client without knowing what the charge was and without advising him about what his rights were as far as speaking to the police were?

A. Well you might, yeah.

Q. You just present him to the police and just hand him over?

A. Yeah, I act on - I act on requests.

Q. So you, for example, wouldn't think it prudent or necessary to advise a client that, for example, he has a right to silence as far as talking to the police are concerned?

The psychological report and the evidence from the applicant and his brother made it clear that the applicant came from a difficult family background. His father's family had been very antagonistic towards his mother and this antagonism was taken out on the children including the applicant. The antagonism included physical assaults. This was exacerbated by the fact that during the applicant's childhood up to 40 people were living in a two-storey house at Moorebank.

Those early years involved a shortage of food for the children. Living conditions were extremely harsh. His parents' marriage broke up and his mother struggled to raise the children. As a result the applicant was required to work outside of school hours to assist in the support of the family. At school the applicant had experienced difficulties because of a stutter which he had developed. Despite these hardships, the applicant had a close relationship with his mother and siblings. He was estranged from his father.

While the hearing of this charge was pending, the applicant married in November 2011. Initially he kept the fact of the charge from his wife to protect her. At the time of sentence his wife was very supportive of him. Her Honour noted that the character witnesses spoke very highly of the applicant, as did his older brother.

In relation to the applicant's studies, her Honour found:

"He was, despite his circumstances, able to complete the Higher School Certificate in 2002. He has no university qualifications. Despite this, he has a considerable HECS debt. He was proceeding with the requirements of the Legal Practitioners Admission Board. His evidence was, and the pre-sentence report noted, he had expected to finish his last semester of study, one subject (two examinations), and the College of Law at the end of 2012 and be admitted. This did not happen, he said, because of the injury to his finger and his bail conditions. ... He will, as a result of the conviction, be unable to pursue further a career in the law. The psychological report notes at p 2 of 11, para [1]:

"He stated he has been employed for the past seven years as a law clerk including for about five years for a barrister named John Parnell."

It seems from the evidence given by the prisoner his legal studies extended over a period of in the order of eight or nine years. Even though he had still not, as at late 2012, completed all requirements."

Her Honour found that he was a person of good character and that he was unlikely to require supervision on release. The psychologist's report indicated that he did not require psychological treatment. Her Honour found reasonably good prospects for rehabilitation.

A matter which was raised before her Honour was an injury which the applicant had suffered to his right, little finger. This was relevant in two respects. Time was needed for the finger to recover which was unlikely to occur if he were sent to prison and his time in custody would be more difficult because of his inability to properly use his right hand and if necessary, defend himself while in prison. There was evidence before her Honour as to the medical assistance available for the applicant in prison. Her Honour found that in addition to his finger his conditions of custody would be more onerous because of the effect which he knew it would have upon his wife and mother.

Her Honour concluded her remarks as follows:

"The Court in every case must bear in mind the maximum penalty prescribed and the particular facts and circumstances, both objective and subjective, of the case, and the requirement for general deterrence. Weighing those considerations, in my view, nothing other than a full-time custodial sentence is appropriate in this case."

Ground 1 - Her Honour erred in finding that the applicant's conduct had the potential to either defeat or thwart the prosecution of Salim.

This ground of appeal challenges the finding by her Honour which is set out at [129] hereof. The applicant submitted that given the nature of the evidence which Mr Phillips was able to give concerning the incident on 27 August 2010, it was simply not open to her Honour to make a finding beyond reasonable doubt that the interference with the police investigation intended by the applicant would have the effect of potentially defeating or thwarting the prosecution case against Mr Salim.

This was because there was nothing that Mr Phillips had to say about the events on that day that could have assisted the prosecution case, (so far as we understand it), against Mr Salim. The opposite situation actually existed in that Mr Phillips' account was likely to exculpate Mr Salim. On that basis, the applicant submitted that it was an error for her Honour to conclude as she did that the applicant's conduct had the potential to either defeat or thwart the prosecution of Salim.

The respondent submitted that in effect this submission sought to traverse the correctness of the jury's verdict and was misconceived. I do not agree. I have concluded that there is substance in the complaint made by the applicant that her Honour was not entitled to make such a finding beyond reasonable doubt. The more important question, however, is what effect, if any, that incorrect finding had on sentence.

What is clear is that if Mr Phillips had lied to the police as advised by the applicant, that false information had the potential to obstruct the investigation into the activities of Mr Salim. Moreover, the applicant intended that it should do so. That is the nub of the offence. As her Honour pointed out in the same paragraph which contains the disputed finding of fact, "The gravamen of the offence is the intention that the course of justice be perverted and the undermining of confidence in the criminal justice system". As her Honour also noted, it mattered not that the prosecution of Mr Salim was eventually discontinued (R v Marinellis [2001] NSWCCA 328 at [38] ff.)

While I agree that it was not open to her Honour to make the impugned finding of fact the error led nowhere. It was an incidental finding made by her Honour when she adopted the Crown submissions on that issue. It did not affect the other matters which her Honour properly took into account as relevant to the objective seriousness of the offence.

As Latham J said in Baxter v Regina [2007] NSWCCA 237; 173 A Crim R 284 (Spigelman CJ and Kirby J agreeing):

"83 An error is a "material error" if it has the capacity to infect the exercise of the sentencing discretion, regardless of whether it can be demonstrated that the error has in fact influenced the sentencing outcome. It is an error in the House v The King sense because the sentencing judge has taken into account an erroneous or irrelevant consideration. However, the error must be more than "trivial or immaterial"."

Not only did the error not in fact influence the sentencing outcome, its capacity to do so was minimal. It can be correctly characterised as being no more than "trivial or immaterial". As can be seen from the review of her Honour's reasons, the precise content of the advice was immaterial. What was important was its potential effect on the criminal justice system and the applicant's intent in providing the advice.

Accordingly, although the error identified in the ground of appeal has been made out, it was not a "material error" and did not in fact or potentially affect the sentence imposed.

Ground 2 - Her Honour erred in not properly taking into account the extra curial punishment suffered by the applicant.

The applicant submitted that the loss of his legal career was a substantial punishment. This was particularly so when he had been studying for 8-9 years and was very close to being admitted as a legal practitioner. He submitted that the loss was all the greater because of the background of disadvantage which he had to overcome. The loss was significant because he was a young person just about to start on a legal career which he could reasonably anticipate was going to last for many years into the future.

The applicant submitted that although her Honour had referred to this fact, there was no suggestion in her remarks on sentence that this feature of the case was taken into account as a matter in mitigation of sentence. The applicant submitted that had this matter been properly taken into account with other mitigating factors, it should have had a significant effect on the sentence imposed.

I am not persuaded that her Honour did fail to take this matter into account as a matter in mitigation of sentence. Her Honour's references to this subject are set out at [137] hereof. It is clear that her Honour regarded this as a matter of importance otherwise she would not have dealt with it in such detail. Her Honour's remarks on this subject came under the heading "Defence Submissions and Subjective Matters" which included matters of mitigation. All the applicant's mitigating considerations were set out under that heading.

A similar complaint was made in a similar case of Oudomvilay v Regina [2006] NSWCCA 275 where Hidden J (with whom Giles JA and Grove J agreed) said:

"18 Mr Corish submitted that her Honour had failed to take into account as a mitigating factor the fact that the applicant had been struck off the roll of solicitors. Her Honour referred to that matter when summarising the subjective case, noting that she had "lost her right, indeed privilege, to be a solicitor". Her Honour did not mention the matter again and Mr Corish argued that, from the fact that it was not specifically referred to as a mitigating factor, it should be inferred that it was not taken into account as such. He submitted that it should have been, as it amounted to a form of extra curial punishment. He referred to R v Daetz & Anor (2003) 139 A Crim R 398, particularly per James J at [61]-[63].

19 Before outlining the applicant's subjective case, her Honour had set out the applicable mitigating factors under s21A(3) of the Crimes (Sentencing Procedure) Act. These included her plea of guilty and her prior good character, and her Honour's finding that she had good prospects of rehabilitation and was unlikely to re-offend. Extra curial punishment is not one of the mitigating factors set out in subs (3). No doubt, that is why her Honour referred a little later to the applicant's loss of her career as a solicitor. It was in the context of her Honour's assessment of the deleterious effects upon the applicant of the offences, including her loss of standing in her community and the compromise of her relationship with members of her extended family.

20 It was appropriate for her Honour to have regard to all those matters in mitigation of sentence and, clearly, it was for that purpose that she referred to them. ..."

It should be noted that in the sentence proceedings the applicant made no submissions as to extra curial punishment. In the absence of any specific submission it would have been appropriate for her Honour to deal with this circumstance of mitigation concisely. In fact her Honour, given the overall brevity of her remarks on sentence, devoted considerable space to this consideration.

I have concluded that her Honour did take this matter into account and treated it as an important consideration. This ground of appeal has not been made out.

Ground 3 - Her Honour erred in finding that the offence was a serious example of an offence against s319 Crimes Act 1900.

Ground 4 - Her Honour erred in concluding that a sentence of fulltime imprisonment was the only appropriate sentence.

Ground 5 - The sentence is manifestly excessive.

Since these grounds of appeal raise essentially the same issue, they can conveniently be dealt with together.

The applicant submitted that it was not open to her Honour to find that "this is a serious example of an offence contrary to s 319". In oral submissions the applicant submitted that a better characterisation of what occurred was "a completely misguided and misconceived piece of bad fumbling by a legal clerk who shouldn't have been doing any of these things at all" (Appeal Transcript 8.46).

The applicant submitted that there were a number of aspects of this case which reduced its seriousness. The applicant submitted that he was a legal clerk at the time, lacking both knowledge and practical experience. He submitted that this was evident from him being in contact with Mr Phillips at all, given that he had a role in the representation of Mr Salim. The applicant submitted that another indicia of his lack of practical experience was his failure to recognise that Mr Phillips' version of events exculpated rather than incriminated Mr Salim.

The applicant submitted that these surrounding circumstances are important when assessing the objective seriousness of the offence. In that regard, the applicant referred to Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 where Basten JA considered that the offence of making a statement with intent to pervert the course of justice in that instance was made more serious because it occurred after the offender had perjured himself in the Local Court and that by reason of his career in legal practice as a judge and lawyer, he must have fully appreciated the seriousness of the offence.

The applicant submitted that by reference to such more serious cases it could be seen that this was a comparatively minor example of such an offence. The applicant submitted that in those circumstances, a sentence short of fulltime imprisonment was appropriate and her Honour should have so found. The applicant submitted that there were good reasons to conclude that the objective seriousness of the offence was towards the lower end of the range. This was particularly so when account was taken of the applicant's subjective case. The applicant submitted that imprisonment was a sentence of last resort and that her Honour should have considered all other possible alternatives before imposing a custodial sentence.

The assessment of the objective seriousness of an offence was a discretionary exercise by her Honour. Such an evaluation is classically within the role of the sentencing judge. This Court has said on a number of occasions that it would be slow to set aside the determination of objective seriousness made by a primary judge (R v Mulato [2006] NSWCCA 282 at [37] per Spigelman CJ; Marracos v R [2008] NSWCCA 267 at [18] per Hislop J; R v Mercael [2010] NSWCCA 36 at [85] per James J).

Her Honour's finding that the offence was a serious example of an offence contrary to s 319 was based upon her Honour's twelve factual findings, none of which were challenged by the applicant. Her Honour noted (correctly) that the gravity of the offence was increased by reason of the applicant being a person acting within the criminal justice system, albeit that he was a law clerk not a qualified practitioner. In that regard, however, it should not be ignored that the evidence was that he had considerable practical experience of somewhere between 6 and 7 years.

As her Honour appreciated, the maximum sentence for an offence contrary to s319 of the Crimes Act was an important guidepost. Here the maximum penalty is 14 years. The sentence actually imposed was 2 years and 3 months with a non-parole period of 1 year and 3 months. It is clear from the sentence itself that her Honour was conscious of the very matters to which the applicant refers, including his strong subjective case and took them into account. This is why the sentence ultimately imposed can be appropriately characterised as modest. Given the seriousness of any offence contrary to s 319 Crimes Act, it is not without significance that the head sentence was less than 20 percent of the maximum sentence and the non-parole period was 55 percent of the head sentence. The length of the head sentence suggests that her Honour did in fact treat the offence as one that fell towards the lower end of the range.

The submission that her Honour erred in failing to consider alternatives to fulltime custody should be rejected. Her Honour held that weighing the objective facts with the applicant's subjective case, bearing in mind the maximum penalty and the need for general deterrence, nothing other than a fulltime custodial sentence was warranted. In doing so, her Honour noted that denunciation and deterrence were entitled to greater weight for this kind of offence (Nguyen v R [2004] NSWCCA 332; 149 A Crim R 343 at [43]).

Her Honour's findings in relation to a custodial penalty were consistent with the statement of principle of McClellan CJ at CL (with whom Studdert J agreed) in Marinellis at [42] to the effect that the appropriate sentence for an offence contrary to s 319 would normally involve a period of fulltime custody.

A similar ground of appeal was considered and rejected in Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6 where RS Hulme J (with whom Basten JA and Schmidt J agreed), after referring to the judgment of Howie J in Zamagias v R [2002] NSWCCA 17, said:

"16 It may be accepted that Howie J's remarks accurately and logically reflect the various steps and the order of them as flow from the terms of the Crimes (Sentencing Procedure) Act. However, it does not follow that a judge must expressly follow this order and refer to all of the steps in circumstances where the ultimate result is, in the judge's view, clear. Howie J made this clear at [30] of his remarks in the case just referred to. Basten JA made a similar point when, in Amado v R (2011) NSWCCA 197 at 5, his Honour observed:-

"It was unrealistic to suppose that the Court actually reaches its conclusion by proceeding mechanically from step one to step three."

17 Certainly, in many cases the risk of error may increase if a judge does not expressly advert to some or all of the possibilities or steps referred to in Howie J's remarks. But there are many cases where a sentence of full-time imprisonment is so obviously demanded that the procedure envisaged by Howie J can properly be foregone."

Her Honour's conclusion that nothing other than a fulltime custodial sentence was warranted was supported by her Honour's findings as to objective gravity and the need for deterrence and denunciation. Accordingly, it was not necessary for her Honour to advert to each of the alternatives to fulltime custody. The applicant has failed to demonstrate error and ground 4 should be dismissed.

To succeed on ground 5, the applicant must satisfy the Court that the sentence was manifestly excessive in the well recognised sense that it was unreasonable or plainly unjust: Makarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371, Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8] - [9]. It is not sufficient that this Court might be of the view that, had it been sentencing the applicant, it might have exercised its discretion differently to that of the sentencing judge. Intervention is warranted only where error is demonstrated in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 505. Such error has not been demonstrated.

Ground 5 should be dismissed.

As already indicated, the applicant was sentenced on 21 March 2013 and granted bail on 26 June 2013, having served 3 months and 6 days of the sentence imposed by her Honour. Since the appeal has been dismissed, the applicant's bail should be revoked and he should be returned to custody to serve the balance of the sentence imposed on 21 March 2013. Allowing for the time already served, the applicant's non-parole period of imprisonment will expire on 30 January 2015 and the balance of his term on 29 January 2016.

The orders which I propose are as follows:

(1) Leave to appeal against conviction and sentence be granted but that the appeal be dismissed.

(2) The applicant's bail be revoked forthwith.

(3) The applicant be returned to custody on 5 February 2014 so that his non-parole period of imprisonment will expire on 30 January 2015 and the balance of his term will expire on 29 January 2016.

BLANCH J: I agree with Hoeben CJ at CL and the orders proposed.

PRICE J: Having myself assessed the whole of the evidence, I agree with Hoeben CJ at CL that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the offence contrary to

s 319 of the Crimes Act. I agree with his Honour's reasons and the orders that are proposed. I also agree that leave to appeal against sentence be granted but the appeal be dismissed.

**********

Decision last updated: 05 February 2014

Medium Neutral Citation:	Michael v R [2014] NSWCCA 2
Hearing dates:	26/11/2013
Decision date:	05 February 2014
Jurisdiction:	Criminal
Before:	Hoeben CJ at CL at [1] Blanch J at [171] Price J at [172 ]
Decision:	(1) Leave to appeal against conviction and sentence be granted but that the appeal be dismissed. (2) The applicant's bail be revoked forthwith. (3) The applicant be returned to custody on 5 February 2014 so that his non-parole period of imprisonment will expire on 30 January 2015 and the balance of his term will expire on 29 January 2016.
Catchwords:	CRIMINAL LAW - CONVICTION APPEAL - doing an act intending to pervert the course of justice contrary to s319 Crimes Act 1900 - law clerk advising witness to lie to police - whether verdict was unreasonable - detailed analysis of evidence necessary - conceded inconsistencies in Crown case - whether necessary intent established by evidence - whether open to jury to be satisfied of guilt beyond reasonable doubt - not sufficient to identify material tending against guilt of accused - inconsistencies in evidence did not undermine Crown case - advantage of jury in assessing witnesses - conviction appeal dismissed - SENTENCE APPEAL - incorrect factual finding by sentencing judge - whether any potential effect on sentence - whether extra curial punishment taken into account - assessment of objective seriousness - whether sentence of fulltime imprisonment the only appropriate sentence - whether sentence manifestly excessive - appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) - s319 Criminal Appeal Act 1912 (NSW) - s6(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited:	Baxter v Regina [2007] NSWCCA 237; 173 A Crim R 284 BCM v The Queen [2013] HCA 48 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Col v R [2013] NSWCCA 302 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 Hardie v Regina; Phillipsen v Regina [2012] NSWCCA 6 House v The King [1936] HCA 40; 55 CLR 499 Libke v R [2007] HCA 30; 230 CLR 559 M v R [1994] HCA 63; 181 CLR 487 MFA v The Queen [2002] HCA 53; 213 CLR 606 Makarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 Nguyen v R [2004] NSWCCA 332; 149 A Crim R 343 Oudomvilay v Regina [2006] NSWCCA 275 R v Marinellis [2001] NSWCCA 328 Marracos v R [2008] NSWCCA 267 R v Mercael [2010] NSWCCA 36 R v Mulato [2006] NSWCCA 282 R v Pangallo [1991] 56 A Crim R 441 SKA v The Queen [2011] HCA 13; 243 CLR 400 Zamagias v R [2002] NSWCCA 17
Category:	Principal judgment
Parties:	Fabian Michael - Applicant Regina - Respondent Crown
Representation:	Counsel: T Game SC/D Barrow - Applicant S Dowling SC - Respondent Crown Solicitors: Senses Legal - Applicant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown
File Number(s):	2011/332412
Decision under appeal	Before: Payne DCJ File Number(s): 2011/332412