Petch v Director of Public Prosecutions (NSW)

[2022] NSWCA 33

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Petch v Director of Public Prosecutions (NSW) [2022] NSWCA 33

Hearing dates:

8 February 2022

Date of orders:

11 March 2022

Decision date:

11 March 2022

Before:

Basten JA at [1];
Macfarlan JA at [87];
Payne JA at [88]

Decision:

(1)   Dismiss the amended summons for judicial review filed on 15 November 2021.

(2)   Order that the applicant pay the Director’s costs in this Court.

Catchwords:

COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of knowingly giving false evidence before the Independent Commission against Corruption – failure to consider substantial component of defendant’s case – significance to defendant of subject-matter of false statement – significance first raised by prosecutor

COURTS AND JUDGES – jurisdictional error – District Court – crime – appeal from Local Court – offence of giving false evidence before the Independent Commission against Corruption – defendant called expert evidence of cognitive impairment and memory loss – whether judge failed to apply criminal burden and standard of proof – whether burden cast on defence – judgment to be read as a whole

Legislation Cited:

Bail Act 2013 (NSW), ss 4, 5, 61

Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18

District Court Act 1973 (NSW), ss 8, 176

Independent Commission Against Corruption Act 1988 (NSW)

Supreme Court Act1970 (NSW), ss 22, 69C

Cases Cited:

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26

Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115

Gelle v Director of Public Prosecutions (NSW) [2017 NSWCA 245

Hay v Director of Public Prosecutions (NSW) [2020] NSWSC 219

Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2006) 66 NSWLR 151; [2006] NSWCA 172

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [201] HCA 1

Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261

Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345; 156 A Crim R 269

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337

Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48

Category:

Principal judgment

Parties:

Ivan John Petch (Applicant)
Director of Public Prosecutions (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
T A Game SC / P J English (Applicant)
D Kell SC / P Boncardo (First Respondent)
Submitting Appearance (Second Respondent)

Solicitors:
Phillip Blaxell (Applicant)
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2021/261838

 Decision under review 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 June 2021

Before:

Tupman DCJ

File Number(s):

2015/232948

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Mr Ivan Petch, was elected mayor of the City of Ryde Council in July 2012. Due to disagreements over a proposed redevelopment, Mr Petch and other councillors sought to terminate the employment of the general manager, Mr John Neish.

Around 31 January 2013, Mr Petch learned that adult pornography had been located on the Council laptop issued to Mr Neish. On 8 February, a deed of release that provided the terms of Mr Neish’s termination was signed by Mr Neish and Mr Petch, on behalf of the Council. It prevented either party disparaging the other.

The Independent Commission Against Corruption (the Commission) had commenced an investigation into some councillors’ conduct in July 2012. Telephone intercepts showed that, in the first half of February 2013, Mr Petch had disclosed information about the discovery of pornography on Mr Neish’s laptop to other council officers and people with access to the media. On 15 February and 25 July 2013, Mr Petch gave evidence before the Commission. He made statements to the effect that he wanted the allegations about the finding of pornography on Mr Neish’s laptop to remain confidential, which contradicted the evidence of the telephone intercepts.

Mr Petch was charged with several offence under the Independent Commission Against Corruption Act 1988 (NSW) of knowingly making false statements to the Commission.

Mr Petch argued that there was reasonable doubt as to his knowledge of the falsity of his answers. First, he submitted that, having secured Mr Neish’s termination on 8 February, the publication of the finding of pornography on Mr Neish’s laptop was of no ongoing significance to him. Secondly, he relied on expert evidence given at trial by a clinical neuropsychologist, Associate Professor Batchelor, and a cardiologist, Professor Arnolda, to show that he was suffering cognitive impairment and memory loss when he gave evidence. Mr Petch submitted that the evidence demonstrated a reasonable possibility that he gave false answers due to his poor recollection of the relevant telephone conversations.

A Local Court magistrate found him guilty of two offences. On appeal, the District Court upheld the convictions.

There being no appeal from the District Court judgment, Mr Petch applied to the Court of Appeal for judicial review of the District Court convictions. The questions raised were whether the District Court judge committed jurisdictional error by:

1. failing to address the significance to Mr Petch of the subject-matter of the false statements in determining whether he remembered the conversations;

2. failing to address the significance of Professor Arnolda’s evidence and the reliability of Associate Professor Batchelor’s evidence; and

3. improperly applying the standard and burden of proof in a criminal prosecution.

Held by Basten JA (Macfarlan and Payne JJA agreeing) dismissing the application:

Issue 1 – failure to address significance of subject-matter

1. The jurisdiction of the District Court judge was to reconsider the evidence and determine whether the prosecution had proved the charges beyond reasonable doubt. A failure by the judge to address a substantial component of a party’s case can amount to jurisdictional error. This is distinct from a complaint about the inadequacy of reasons, which assumes that a matter was considered but not addressed in the reasons: [41], [46]-[49].

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48; Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287, applied.

1. The assumed insignificance of publicising the allegations against Mr Neish was not a substantial part of Mr Petch’s case. His written submissions were primarily concerned with whether he had cognitive impairment and not whether he forgot about his conversations because their subject-matter was insignificant to him. In oral submissions, it was the prosecution who relied on the significance of the subject-matter to Mr Petch, to which Mr Petch responded: [53], [57].

2. The judge explicitly rejected any submission that Mr Petch had forgotten about the conversations because their subject-matter was not of particular importance to him. The assertion that the subject-matter was insignificant to Mr Petch was not based on established or uncontroversial primary facts. The judge was entitled to draw inferences from a range of primary facts, including the transcript of the telephone intercepts: [58]-[59].

Issue 2 – failure to address expert evidence

1. The judge had addressed the expert evidence and rejected the submission that it demonstrated a reasonable possibility that Mr Petch had cognitive impairment or memory loss in June 2013. It was open to the judge to give little weight to Dr Batchelor’s opinions which had significantly changed between preparing her first report and giving evidence. Similarly, the judge was entitled to give little weight to Professor Arnolda’s opinions, he not having met or treated Mr Petch: [64].

2. The judge did not need to mention every factor or argument relied on by Mr Petch in her reasons.

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48, applied.

Issue 3 – improper application of burden and standard of proof

1. A failure by a judge to apply the criminal standard of proof may constitute jurisdictional error. The Court will not readily infer that a judge has applied the wrong burden of proof absent strong and clear evidence: [50], [68].

Powercoal Pty Ltd v Industrial Relations Commission of NSW [2005] NSWCA 345; Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2006) 66 NSWLR 151; [2006] NSWCA 172, distinguished.

1. The judge had applied the burden and standard of proof. It was not for this Court to consider whether her conclusions were correct. The judge’s reasons for rejecting the expert evidence on cognitive impairment and memory loss were factual findings and not statements of the burden of proof: [72], [73]-[75].

2. The prosecution was not required to prove every primary or intermediate fact beyond reasonable doubt. The prosecution was only required to prove beyond reasonable doubt that Mr Petch knew of the falsity of his statement: [73].

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56, referred to.

Judgment

1. BASTEN JA: On 21 February 2020 the applicant, Ivan Petch, was convicted in the Local Court of two offences under the Independent Commission Against Corruption Act 1988 (NSW). Each offence involved the applicant making a false statement at a hearing of the Independent Commission Against Corruption (“Commission”) in Sydney on 25 July 2013. On 25 February 2020 the applicant filed an appeal in the District Court against both his convictions and sentence. On 15 June 2021 Judge Tupman dismissed the conviction appeal. (An appeal against sentence was addressed later and upheld. The imposition of an intensive correction order is not challenged if the convictions stand.)

2. On 13 September 2021 the applicant filed a summons in this Court seeking judicial review of the judgment in the District Court dismissing the conviction appeal. The summons was filed within three months of the dismissal of the appeal by the District Court. On 15 November 2021 an amended summons was filed which recast, without materially varying, the grounds on which judicial review was sought.

3. Because there is no statutory right of appeal from a judgment of the District Court in a criminal matter disposing of an appeal from the Local Court, the only means available to an aggrieved defendant to challenge the judgment of the District Court is by way of judicial review. Further, the privative provision in s 176 of the District Court Act 1973 (NSW) limits the grounds on which this Court can intervene to those properly identified as jurisdictional errors. ^[1] Being a court of record,^[2] the jurisdictional limits of the District Court are less confined than those of a tribunal or other similar body. ^[3]

   1. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 at [32] (Bell P).

   2. District Court Act, s 8(2).

   3. Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58.

4. There was no suggestion that the judge exceeded the District Court’s jurisdiction “in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretically limits of its functions and powers”, nor that the judge dealt with a category of case or purported to make an order of a kind which was unavailable. ^[4] It will be necessary to consider further the precise nature of the errors alleged in this case. However, for the reasons which follow, jurisdictional error was not established and the proceeding must be dismissed.

   4. Ibid.

Factual background

5. Although the issues in this Court fall within a narrow compass, it is necessary to record the circumstances of the charges which were upheld in the Local Court. The background to the laying of the charges is relevant because an argument mounted on behalf of the applicant was that the statements made by him were not knowingly false, he having no recollection of particular events because they were of limited significance. The background provides material relevant to their significance and his recollections.

6. In late 2008 the City of Ryde Council (“the Council”) obtained approval for a major redevelopment known as the Ryde Civic Precinct Redevelopment near Top Ryde shopping centre. The approval permitted the Council to build up to 24 storeys. The Council was to obtain a new administration building with community facilities, apparently at minimal cost to the community. However, the Council was split as to the desirability of this development. In May 2011 the Council engaged an independent panel of experts to seek expressions of interest from potential contractors. On 18 October 2011 the Council resolved to approve expenditure of $2.6 million and delegated its powers to its general manager, Mr John Neish, to deal with the tendering and selection process.

7. The Council required seven members for a quorum. Six councillors who opposed the redevelopment did not attend a number of meetings when the redevelopment was on the agenda. On 12 July 2012 the Council voted (with the casting vote of the then mayor) to accept a recommendation of the external evaluation committee to begin negotiations with a particular contractor. No contract was concluded before the Council elections in September 2012. The elections delivered a majority to the disaffected group and the applicant was elected mayor. A rescission motion was passed in relation to the redevelopment. Attempts were made to terminate the employment of Mr Neish. A motion giving effect to that proposal was passed on 23 July 2012. The councillors who voted against that motion immediately proposed a rescission motion.

8. In about July 2012 the Commission commenced an investigation into the conduct of particular councillors following a complaint by Mr Neish. In August 2012 the Supreme Court granted an injunction preventing three councillors from voting against the rescission motion until 14 September 2012, a date presumably fixed by reference to the forthcoming election. shortly after that date, the orders were continued. The rescission motion, however, was not able to be passed in August or in early September 2012 because the Council could not muster a quorum. A stalemate ensued in relation to the termination of Mr Neish as a result of court orders to which the Council had consented.

9. In January 2013 Mr Neish sought IT help with his Council laptop. On about 31 January the applicant was advised that adult pornography had been located on the laptop. On 5 February 2013 the applicant received a formal complaint that there was a virus on the laptop which had resulted from Mr Neish downloading pornographic material to the laptop. The applicant sent a memo to Mr Neish informing him of the complaint.

10. On 7 February 2013 Mr Neish approached the applicant seeking to terminate his employment as general manager of the Council. The following day (8 February) a deed of release was signed by Mr Neish and the applicant on behalf of the Council, which included a clause requiring that “the parties must not do anything which materially damages or is likely to materially damage the reputation of any other party to this deed except as required by law.”

11. As part of the on-going investigation by the Commission, there were telephone intercepts in place. Evidence was obtained from intercepted telephone calls that the applicant was keen to get rid of Mr Neish over the second half of January 2013. The discovery of the pornographic material effectively provided the opportunity for that to occur.

12. In the first half of February, there were interceptions of numerous telephonic communications between the applicant and officers of the Council and others with access to the media, in the course of which the applicant disclosed information in relation to the pornographic material which had been discovered on Mr Neish’s computer.

13. On 15 February 2013 the applicant gave evidence at a private hearing before the Commission. He made statements to the effect that he wanted the allegations against Mr Neish about the finding of adult pornography to remain confidential, which was inconsistent with the thrust of the intercepted communications. The applicant gave further evidence at a public hearing on 25 July 2013 to similar effect. In the course of the hearing, the applicant was asked about his communications with various people, including Anthony Stavrinos, a journalist who had earlier worked for the applicant. It was put to the applicant that he was the source of information given to Mr Stavrinos about the pornographic material on Mr Neish’s computer and that he supplied it to him intending that it be published nationally.

14. The two charges of which the applicant was convicted in the Local Court and which were the subject of the appeal to the District Court were as follows:

“Sequence 7

That Ivan Petch at a hearing before the Independent Commission Against Corruption gave evidence that was false in a material particular, namely by falsely stating he did not seek to have Anthony Stavrinos leak the finding of adult pornography on John Neish’s laptop to the media, knowing that the evidence as false or not believing it to be true.

Sequence 8

That Ivan Petch at a hearing before the Independent Commission Against Corruption gave evidence that was false in a material particular, namely by falsely stating he stopped seeking to leak the finding of adult pornography on John Neish’s laptop to the media after a meeting with Bryan Belling on 1 February 2013, knowing that the evidence was false or not believing it to be true.”

Mr Belling was a solicitor in private practice who was retained by the applicant (in his capacity as Mayor) and other councillors to advise with respect to the tenure of the general manager, Mr Neish. He was aware that the councillors had given an undertaking, in the face of ongoing Supreme Court proceedings, not to terminate Mr Neish’s employment. He drafted the deed of 8 February 2013 by which a consensual termination occurred.

Issues at trial

15. Because the thrust of the application for judicial review was that the District Court failed to address “substantial arguments relied on by the applicant”, it is necessary to provide some background as to the way the case was defended, both in the Local Court and on appeal in the District Court. The primary (but not the sole) defence in both courts sought to raise a reasonable doubt as to the applicant’s knowledge of the falsity of his answers. The defence turned primarily on two propositions, namely that (i) having obtained a deed from Mr Neish on 8 February 2013 providing for the termination of his employment as general manager of the Council, the publication of the fact that pornographic material had been found on his laptop was of no ongoing significance to the applicant, and (ii) the applicant suffered from a level of cognitive impairment which materially affected his memory of recent events. The defence case in the Local Court focused on the applicant’s medical history, and reports obtained from a clinical neuropsychologist, Associate Professor Jennifer Batchelor and from a cardiologist, Professor Leonard Arnolda. The latter gave evidence as to the link between heart disease and cognitive functioning. The applicant contended that this evidence raised a reasonable doubt as to whether the answers given by him before the Commission in July 2013, relating to events which had occurred some five months earlier, were not knowingly false, but the result of inadequate recall.

16. Magistrate McIntyre, having identified the charges and the relevant elements of each, noted that some elements were agreed: ^[5]

“The accused accepts the Crown has proved beyond reasonable doubt that he gave evidence at a compulsory examination or public inquiry conducted by the ICAC, and that the allegedly false evidence as averred was sufficiently material. I need not therefore address the materiality issue in detail – it should suffice to observe that the evidence given by the accused was given during an investigation conducted by the Commission. Of relevance to these charges the Commission was investigating allegations that the accused

a.   attempted to publicly embarrass Mr Neish and force his resignation from Council by leaking confidential information; and

b.   released confidential information, and in some cases commercially sensitive, Council information to his associates, either for their benefit or his own.”

5. Local Court judgment, p 5 (emphasis removed).

17. She then noted the disputed elements: ^[6]

“The accused submits that (a) whether the accused actually gave the evidence averred in the charges, and if he did, whether (b) that evidence was objectively false, and (c) he knew that evidence to be false or did not believe it to be true are facts in issue in this proceeding.”

With respect to the third issue, the magistrate stated: ^[7]

“I also accept the accused’s contention that if it is to prove an offence of this nature, the Crown must satisfy the tribunal of fact beyond reasonable doubt that the impugned evidence was not only untrue, but was wilfully false. In other words, if the statement was made mistakenly then it does not fall within the offence provision …. As part of its onus, the Crown must also disprove the reasonable possibility that the accused gave false evidence honestly and mistakenly as a distinct from dishonestly and with criminal intent….”

6. Local Court judgment, p 6 (emphasis removed).

7. Local Court judgment, p 8 (emphasis removed).

18. The question of cognitive impairment was identified by counsel for the applicant as a “threshold issue” and the magistrate was urged to consider that issue first. ^[8] She did that. She noted that the expert evidence addressed the possibility that the applicant was not “fully cognisant” at the time of the hearings and was possibly suffering from memory loss. ^[9] The issue was relevant to all six of the charges before the Local Court.

    8. Ibid.

    9. Local Court judgment, p 9.

19. The judgment and orders of the Local Court have been superseded by those in the District Court on appeal. It follows that there is now no challenge, nor could there be, to the Local Court’s determination of the charges. However, because the Local Court heard evidence from the experts and from five witnesses called by the prosecutor, to the extent that the magistrate made findings in relation to their evidence, those findings were matters which the District Court judge was entitled to take into account.

20. The situation with respect to the applicant’s evidence to the Commission was somewhat different; the applicant did not give evidence in the Local Court. The magistrate made the following findings: ^[10]

“I simply do not accept that hesitations in Mr Petch’s answers, or protestations of ‘I don’t recall’, or even a request to hear a part of a recording again, is evidence upon which the suggestion of cognitive impairment can be founded. Even if he does have memory issues in 2019, in 2013 he was being questioned about matters that had occurred literally hours, weeks and months, not years, prior to the hearings. Mr Petch gave extremely detailed answers, in many circumstances naming people, places and dates that showed him to be in my view, a mayor with firm knowledge of every facet of his work as mayor and beyond. … The vast amount of tendered material as to his daily workings indicates a person absolutely in charge of every one of his faculties, particularly his mind and memory. I am simply not prepared to back-date or superimpose Dr Batchelor’s somewhat tenuous 2019 findings in relation to Mr Petch’s memory loss to the 2013 ICAC hearings, there is in my view no weight to be attached to this type of reverse-reasoning.

Professor Arnolda’s evidence was no doubt based on strong research within the medical field that has found a link between cognitive functioning and heart failure in patients, particularly prevalent in persons under 45 years of age (Mr Petch is of course not in this category). He suggested that Mr Petch’s heart failure ‘could put him at risk’ of cognitive impairment. He would not, and could not transpose those findings onto the 2013 hearings – he had never met or assessed Mr Petch, and it was, as the Crown suggested, outside of his expertise to suggest how such suggested impairment had manifested itself, if at all, during Petch’s 2013 hearings.”

10. Local Court judgment, pp 12-13.

21. The conclusions with respect to the applicant were as follows: ^[11]

“Having read through reams of material evidencing Mr Petch’s complex, convoluted and (some may say) sinister dealings as mayor of Ryde City Council, together with a multitude of intercepts, recordings, and conversations that have been exhibited, this Court is absolutely convinced that at the time of the ICAC hearings in 2013, Mr Petch was a high functioning individual who had many and varied responsibilities and commitments within the community and within Council. He did suffer from heart failure at that time, but the medical material before me indicates that it was treated and kept under control in the main, there is no evidence that it interfered with his daily working life. Never once did his heart failure or memory issues associated with it, come into issue at the ICAC hearing. In fact, the only time a memory problem was put to Mr Petch during the ICAC hearing, it was emphatically denied by him.

Thus, the prospect of cognitive impairment has been negatived beyond reasonable doubt by the Crown. I do not accept that cognitive impairment or memory loss had any effect on the answers that Mr Petch gave during his ICAC hearings in 2013.”

11. Local Court judgment, p 14.

22. The magistrate dealt with sequence 7 over 15 pages of her judgment. As she noted, the prosecutor relied on evidence given at the public hearing to establish that “Petch knowingly lied to the ICAC in relation to his denying that he did seek to have Stavrinos leak the finding of adult pornography to the media”. ^[12] In other words, the prosecutor relied on an inference of knowing falsity derived from the conversations themselves. These were set out from pages 60-70. The magistrate then set out ^[13] portions of the transcript relied on by the applicant as demonstrating his mental state and “the prospect of cognitive impairment and confusion”. ^[14] The magistrate reiterated her findings as to the lack of weight she was prepared to accord to the expert evidence and concluded: ^[15]

“Whilst the words used by Mr Petch in that part of the transcript may reflect some confusion or hesitation on his part, I am of the firm view that such is centred around the procedure of the playing back and the questioning itself, together with some hesitation on his behalf in relation to his being presented with the recordings and what they contained. At most, Mr Petch is clearly reluctant to accept that he has indeed been caught in a lie.

I am not satisfied that the exchange can or should be constructed in the way that counsel for the accused suggests. Sequence 7 is encapsulated by the exchange relied on by the Crown and in my firm view the evidence presented to the Court clearly establishes that Mr Petch was indeed knowingly telling lies to the hearing when he denied efforts to disseminate the findings to the media. I find Sequence 7 proven beyond a reasonable doubt.”

12. Local Court judgment, p 59.

13. Local Court judgment at pp 71-72.

14. Local Court judgment, p 71.

15. Ibid.

23. The magistrate dismissed four of the charges, but not on the basis of Mr Petch’s mental condition. Two were upheld. Although the applicant did not give evidence in the Local Court, the fact that the hearing extended over some six days indicates that the magistrate had a significant opportunity to consider the large volume of documentary material. Nevertheless, that material was also available to the District Court.

Proceedings in District Court

24. The notice of appeal to the District Court relevantly stated that the applicant was appealing his convictions because he was not guilty. On 20 November 2020 counsel for the applicant filed detailed written submissions. Their conclusions which, in effect, set out the substance of the grounds of appeal were as follows:

“The Court would find, as at least a reasonable possibility, that Appellant was suffering from cognitive impairment at the time he gave evidence before ICAC in July 2013, and that this lack of cognition manifested itself in the form of memory loss which at times was evident throughout his examination. Furthermore, on the basis of Associate Professor Batchelor’s and Professor Arnolda’s expert opinions, the Court could not be satisfied that the Crown has proved to the necessary degree of confidence that the Appellant was not being truthful when he claimed to have a lack of recall of certain events during his evidence.”

The evidence of manifested memory loss was identified by reference to several pages of the transcript of the hearings before the Commission.

25. In delivering judgment on 15 June 2021, Judge Tupman identified the essential elements of the two charges in the following terms: ^[16]

    16. District Court judgment, p 3.

“1.

   That there was a public hearing conducted on 25 July 2013;

2.

   That … the appellant gave evidence at that public hearing;

3.

   That the evidence he gave was false in the material particular;

4.

   That he knew it to be false or did not believe it to be true.”

The first two elements were not in dispute; the judge then turned to the third element, noting that materiality involved an objective test not dependent on the appellant’s knowledge or state of mind. The judge noted a dispute as to whether the evidence was in fact given and was objectively false, but also acceptance by the applicant that if those two elements were established materiality was established. The fourth element was in dispute.

26. The judge then set out the background to the offences, involving the history of proceedings in Ryde Council, material which has been summarised above. With respect to the relationship between the applicant and Mr Neish, the judge noted: ^[17]

“On 28 September the Council entered into an undertaking in the Supreme Court that it would not terminate the employment of John Neish as General Manager. As I understand the evidence, this was at the instigation of ICAC which was investigating after John Neish had made a report to ICAC of the type referred to as whistle blowing. There were ultimately investigations then undertaken by ICAC involving intercepted telephone conversations and surveillance of the appellant and others.

…

By way of further background, I find there can be no doubt that notwithstanding the undertaking not to terminate Mr Neish’s contract, the appellant wanted him removed as General Manager. There would not appear to be any dispute about that and there is ample evidence … of telephone conversations between the appellant and others in which he expressed a desire to have Mr Neish removed. Further, the appellant gave evidence to ICAC that if there had been no undertaking to the Supreme Court Mr Neish would have been terminated before 15 February 2013. The appellant was not alone on the Council in his views about Mr Neish.”

17. District Court judgment, p 7-8.

27. The judge then set out the background to the finding of adult pornography on Mr Neish’s laptop. She observed: ^[18]

“A CD containing the material was provided to the appellant on 31 January 2013. He discussed this with another councillor on 31 January 2013 and in that conversation said that he would give a copy of it to Anthony Stavrinos. This call was intercepted and formed part of the evidence on appeal. Anthony Stavrinos was a journalist who had also worked as a publicist for the appellant.”

18. District Court judgment, p 8.

28. The judge recounted the further events in February 2013 resulting in the execution of the deed of release signed on 8 February by Mr Neish and the applicant on behalf of the Council. The judge continued: ^[19]

“Between 31 January and 20 February 2013 the appellant made a number of calls and sent a number of texts to various people, which were intercepted by ICAC, telling them about the finding of pornography on Mr Neish’s computer. He also gave one of them either a copy of the CD which had been provided to him or a printout of some of the stills from the CD. These communications included communications with two journalists directly, one of whom was Anthony Stavrinos, and indirect contact with another journalist through these two.

These communications with journalists are summarised in paras 17 to 29 inclusive of the Crown’s written submissions and set out in full on pp 61 to 71 of the Magistrate’s judgment. I do not propose to include the detail of these conversations in this judgment.”

19. District Court judgment, p 9.

29. A point was taken by the counsel for the applicant in oral submissions that the communications were not “summarised” nor “set out in full”: rather they were extracted, with deletions. Nothing turned on this.

30. The judge dealt in a little detail with the content of a particular communication on 13 February and whether it demonstrated that the applicant did in fact seek to have Mr Stavrinos leak the finding of adult pornography to the media. ^[20] She accepted the finding of the magistrate that there was clear and unmistakable evidence in support of the prosecution case in that regard.

    20. District Court judgment, p 10.

31. As noted above, in finding that the evidence given was knowingly false, the magistrate had placed weight upon both the nature of the communications and the transcripts of the evidence given before the Commission. This material was relevant to the falsehood of the statements, as well as the state of mind of the applicant when he gave evidence before the Commission. Noting that the detailed material had been set out by the magistrate in her judgment, the judge did not repeat it, except in the following passage: ^[21]

“Specifically however, in response to a question, the following appears at ICAC transcript T915.23: ‘What you in fact did was to have Mr Stavrinos leak it?’. To which the appellant answered, ‘No.’.

This is a clear denial of seeking to have Mr Stavrinos leak the material to the media. Some of the other answers given by the appellant in that portion of his evidence it seems to me seek to take issue about whether or not the word ‘leak’ was appropriate or whether in fact the leaking of the material to the media by Anthony Stavrinos was something undertaken independently by him. … This evidence in my view was disingenuous at best, particularly in the light of the myriad of other intercepted telephone conversations between the appellants and others about this issue.

The evidence in its own terms, read properly, is a clear denial of seeking to have him leak it to the media and it [is] also clear that indeed this is exactly what he did.”

21. District Court judgment, pp 11-12.

32. The judge then referred to the material in the reasoning of the magistrate dealing with sequence 7, which has been referred to above. She noted the evidence called by the appellant from two experts in relation to cognitive impairment. The judge continued: ^[22]

“It was the appellant’s contention before the Magistrate, and on appeal, that the prosecution cannot negative the possibility that in giving his evidence to ICAC in 2013 the appellant was not fully cognisant, so that his evidence of denials was not in fact knowingly false but possibly the result of memory loss.”

22. District Court judgment, p 12.

33. The judge identified the medical conditions suffered by the applicant, noting a deterioration since 2013. She referred to the first of Dr Batchelor’s two reports to the Court and observed: ^[23]

“By the time Associate Professor Batchelor assessed the appellant in early April 2019 the appellant reported that his memory had begun to fail him, but there is no evidence of that having occurred previously or the appellant having asserted it previously. It is to be noted that the appellant was born in March 1939, so at the time of this first assessment he had just turned 80.”

23. District Court judgment, pp 12-13.

34. After further discussion of the first report, the judge turned to a second report prepared by Dr Batchelor, who had seen the applicant on a second occasion on 26 April 2019. Dr Batchelor considered he had deteriorated. The judge stated that the report “did not seem to address how these deficits, to the extent that they may have been present in 2013, would have impacted on the evidence he gave to ICAC.” ^[24] The second report asserted that the evidence given to the Commission demonstrated cognitive impairment, an opinion which did not impress the magistrate or the judge.

    24. District Court judgment, p 14.

35. The judge then referred to the evidence of Professor Arnolda, noted that he had not “met nor assessed the appellant” and that, whilst opining that the various medical conditions may have caused cognitive impairment from February to July 2013, nevertheless accepted that it was “outside his area of expertise to comment on how that would manifest itself.” The judge concluded: ^[25]

“His evidence in my view in fact cannot take any further the issue of whether or not the appellant’s answers to questions at ICAC were adversely affected by a cognitive impairment or memory loss associated with cognitive impairment.”

25. District Court judgment, p 14.

36. Because it is said that the District Court gave no real consideration to the appellant’s submissions with respect to cognitive impairment, it is necessary to set out further passages from the judge’s reasons. The judge stated that the Court was not bound to accept the evidence of an expert if it did not accord with other evidence, noting that there was other evidence “including from the appellant himself at ICAC denying any memory deficits at the time he gave evidence.” ^[26] The judge continued:

“Perhaps more importantly it seems to me is the objective evidence surrounding the appellant at the time or close to the time that he gave the evidence. The intercepted telephone calls to numerous people are not suggestive of failing memory, nor cognitive disability. His report to Associate Professor Batchelor on the first assessment in early April 2019 was that his memory was failing, that is at the time of the assessment in April 2019. But it would appear to me at least from that report to be a relatively recent phenomenon and he did not appear to have suffered ongoing memory loss for the preceding six years.

A paras 12 and 13 of the judgment the learned Magistrate rejected the opinion given in oral evidence by Associate Professor Batchelor of proven cognitive impairment in 2013 based on her assessment of him in April 2019. I adopt that finding. There is no explanation for the difference between the first report, where there is not even a definitive finding of cognitive impairment in 2019, to an extent because of the concern that the appellant was not doing his best in relation to some of the assessment tasks and thus giving rise to marked inconsistencies.

Further, the appellant’s actual lived life in the period leading up to his giving evidence to ICAC was entirely inconsistent with a person who suffered any form of cognitive impairment, let alone memory loss. He was, according to the telephone intercepts, well in control of a situation involving his long sought goal of having Mr Neish’s contract with the Council terminated. He well understood that he needed to be at arm’s length from that because of undertakings given. He had previously been involved in manoeuvres at Council before the elections in September 2012. He had held positions of power and responsibility at the Council for some time, including being elected to the position of Mayor on the vote of his colleagues after the elections in September 2012.

There was no assessment undertaken at the relevant period and apparently no consideration given to the fact that his answers at ICAC between February and July might have been the result of cognitive impairment or actual memory loss. For these reasons I too reject the opinion of Associate Professor Batchelor that the appellant suffered cognitive impairment or memory deficits in 2013 and as such, like the Magistrate, I too reject the assertion that cognitive impairment or memory loss had any effect or impact on the answers that the appellant gave during his evidence to ICAC on 25 July 2013.”

26. District Court judgment, p 15.

37. The judge concluded that the evidence in respect of sequence 7 was “overwhelming” and gave concise reasons for that conclusion. ^[27] Again it is necessary to set out the findings in full because ground 2 in the amended summons alleged that the judge reversed the onus of proof. The reasons for the conclusion that sequence 7 was established overwhelmingly were as follows: ^[28]

“1. When he gave the answer “No” to the question to the question whether he sought to have Stavrinos leak the information to the media, he also gave the other answers referred to previously, which were at best disingenuous, seeking to distance himself from what in fact he was doing. He did so by trying to have a word other than ‘leak’ used and seeking to raise the possibility that the journalist, Stavrinos, may have acted independently using the reference to red light and green light. These were not answers given by a person who was confused. They were answers, amounting to surrounding detail, in an attempt to deflect and distance himself from what he knew to be false.

2. I do not accept that the appellant’s asserted inability to remember having heard the intercepted call played in the ICAC hearing, probably on an earlier occasion and probably at a private hearing, when he was heard to say to Stavrinos, ‘Can you arrange to leak it?’ was in fact genuine. I do not accept that the evidence demonstrates that he had any cognitive impairment or memory loss as at July 13, which would be the basis for any genuine inability to remember having heard that intercepted call played to him at an earlier time during the ICAC hearings.

3. The appellant also acted consistently with a desire to remove Mr Neish from his position as General Manager, which was an important task for him. The finding of pornography on the laptop was a godsend, but he needed to ensure that this became public in a way that did not involve him because of the terms of the agreement he had signed with Neish.

4. His evidence overall in the ICAC public hearing did not give any indication of an inability to remember detail, but only seemed to fail when he was presented with the evidence of having lied.

Overall there is no other rational explanation for the answers than that when giving his answers the appellant knew that they were false or did not believe them to be true. He lied to ICAC when he denied that he had sought to have Stavrinos leak the information about the material found on Neish’s laptop to the media. I am thus satisfied that this offence has been proved beyond reasonable doubt and the conviction appeal in relation to that is dismissed.”

27. District Court judgment, p 17.

28. District Court judgment, pp 17-18.

38. There were common issues as to cognitive impairment and memory loss and as to falsity of the evidence which arose with respect to both sequences 7 and 8. The judge dealt more briefly with the latter charge, noting that it involved the same exercise as sequence 7 and repeating aspects of her earlier reasoning. She rejected a particular passage in the evidence which had been relied upon by the prosecution in the Local Court and continued: ^[29]

“However the prosecution relies on other evidence and the bulk of the other evidence relevant to prove sequence 7, in particular all of the conversations with Stavrinos between 3 and 14 February, to establish this charge. As already found, I am satisfied that in fact, taken overall, those conversations in fact establish beyond reasonable doubt that in fact the appellant did seek to have Stavrinos leak the finding of adult pornography on Neish’s laptop to the media and that he did so in conversations with him between 3 and 14 February.”

29. District Court judgment, p 19.

39. The judge concluded, having accepted that his evidence was knowingly false: ^[30]

“There is no evidence to establish that any cognitive impairment or memory loss played any part in his giving this evidence falsely, for the same reasons as already referred to. For that reason I accept too that this offence is proved beyond reasonable doubt and the conviction appeal for that is also dismissed.”

30. District Court judgment, p 21.

Availability of judicial review

40. Before turning to the applicant’s arguments in this Court, it is necessary to identify the function of the Court in conducting a judicial review of a judgment in the District Court.

41. In order to determine whether the judge failed to exercise the jurisdiction conferred on her with respect to a Local Court appeal in a criminal matter, it is necessary to identify the source and nature of that jurisdiction. There is an appeal as of right from the Local Court to the District Court against a conviction by the Local Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Section 18(1) provides that an appeal against conviction “is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings”. Although fresh evidence may be given and witnesses may be recalled in particular circumstances, that did not happen in this matter. Accordingly, the judge was required to deal with the appeal on the basis of the evidence given in the Local Court. The function of the District Court judge is therefore to reconsider the evidence and determine whether the prosecution has established the charge or charges beyond reasonable doubt.

42. In undertaking that exercise, the judge has power to make all necessary findings of fact and to determine any questions of law which arise for determination. Issues of fact will involve both findings of primary fact and the drawing of inferences from those facts. It follows that the judge will need to identify the elements of each offence charged and make findings of fact with respect to those elements. However, as a general principle, the judge has power to undertake those functions and will not fail to exercise her jurisdiction by reaching a conclusion thought by this court to be wrong. It is necessary in the present case to determine whether either statute or the general law impose some inviolable constraints on the jurisdiction of the District Court.

43. Hypothetical examples are apt to mislead, and examples drawn from past cases may not identify the particular proposed limits of jurisdiction in the present case. Nevertheless, because it involved a criminal prosecution in a State court, some guidance may be obtained from the reasoning of the High Court in Kirk v Industrial Court of New South Wales. ^[31] There were two errors identified in that case. The first was the formulation of the charge. The joint reasons noted that the trial judge “did not appreciate that no act or omission on the part of the Kirk company had been charged.”^[32] Rather, the judge had “accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified.”^[33] The second substantial error was to permit Mr Kirk, a co-defendant with the company, to be called as a witness for the prosecution. ^[34] The High Court accepted that both errors constituted errors of law on the face of the record, but were also jurisdictional errors. ^[35] In stating the scope of jurisdictional error in dealing with a court subject to the supervisory jurisdiction of the Supreme Court, the joint reasons in Kirk addressed the earlier reasons given in Craig at 177-178, in the following terms: ^[36]

“[72]   First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’ (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’ and gave as examples of such difficulties ….

[73]   As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.”

31. (2010) 239 CLR 531; [2010] HCA 1.

32. Kirk at [37].

33. Ibid.

34. Kirk at [50]-[52].

35. Kirk at [55].

36. Footnotes omitted.

44. The circumstances in the present case were quite different from those in Kirk. There was no suggestion that the judge hearing the appeal misapprehended the necessary elements of the charges. Nor was there any fundamental breach of the manner of conducting a criminal trial, as, for example, calling the accused in the prosecution case. The closest approach to Kirk is to be found in the allegation contained in ground 2 in the summons that the judge failed “to correctly apply the onus and standard of proof”. If the judge had purported to determine the case on some basis other than the requirement that the prosecution establish the elements of each offence beyond reasonable doubt, that would arguably have been jurisdictional error. However, to say that the onus and standard were misapplied is a different proposition, which will be considered further below.

45. The legal proposition relied upon by the applicant was that a failure to address a substantial component of a party’s case will involve jurisdictional error. The nature of that complaint, however, requires more precise delineation.

46. It is true that Gummow and Callinan JJ stated in Dranichnikov v Minister for Immigration and Multicultural Affairs, ^[37] that “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.” That may be considered a constructive failure to exercise jurisdiction on the basis that the Tribunal had failed to deal with the matter before it.

    37. (2003) 77 ALJR 1088; [2003] HCA 26 at [24].

47. Dranichnikov dealt with a decision of an administrative tribunal. Similar statements were made in relation to a civil trial in the Supreme Court, some four months later. In Whisprun Pty Ltd v Dixon ^[38] the High Court considered an appeal from this Court which had set aside a judgment in the Common Law Division on the basis that the trial judge had failed to give proper consideration to the medical evidence concerning chronic fatigue syndrome, on which the plaintiff relied. By a majority (Gleeson CJ, McHugh and Gummow JJ) the Court allowed the appeal, stating:

“[62]   … Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

[63]   However, it is unnecessary to determine whether the matters to which the Court of Appeal referred were or should have been considered by the trial judge. For the reasons that we have given, they were not part of Ms Dixon's case. To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty. With great respect to the learned judges of the Court of Appeal, we do not think that the evidence met that standard.”

38. (2003) 77 ALJR 1598; [2003] HCA 48.

48. The principle identified in Whisprun, together with the qualification, has been referred to in a number of cases, each of which turns on its own particular circumstances. As stated by Leeming JA in Tonab Investments Pty Ltd v Optima Developments Pty Ltd,^[39] “[a] failure to address a substantial component of a party’s case can amount to jurisdictional error”, leaving open the circumstances in which such a complaint might be established.

    39. (2015) 90 NSWLR 268; [2015] NSWCA 287 at [121] (Meagher JA agreeing).

49. It is important to separate the contention from the evidence supporting the contention. The contention must be that the judge did not consider a substantial component of the applicant’s case. It is not a complaint as to the inadequacy of reasons. Inadequacy of reasons assumes that a particular matter was considered, but was not addressed in the reasons. Whether that could constitute a jurisdictional error is an entirely separate question. However, the absence of mention of a particular matter in the reasons has evidential significance, as the basis for inferring that the judge did not consider that part of the case.

50. In dealing with matters of principle, it is convenient also to refer to ground 2, which alleged a failure to apply the criminal standard of proof. In written submissions, the applicant stated that “[f]ailure to properly apply that standard amounts to jurisdictional error”. Authority for that proposition was said to be found in Powercoal Pty Ltd v Industrial Relations Commission of NSW ^[40] and Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW. ^[41] In Powercoal, in identifying jurisdictional errors, Spigelman CJ stated that he had “no doubt that the criminal standard of proof – described by Sir Edward Coke as the golden metwand of the common law – is an inviolable restriction”: at [57]. In Kirk Group, the Chief Justice, referring to Powercoal, noted that “a failure to apply the criminal standard of proof would be a jurisdictional error”: at [43]. These statements do not contain the qualifier “properly”. That is a matter of significance, because the adverb suggests that applying the standard, but incorrectly, might constitute jurisdictional error. The cases are not authority for that proposition, which would require the reviewing court to establish on its own view whether the standard had been properly applied in circumstances where the court under review had identified it as the appropriate standard.

Review – ground 1

40. [2005] NSWCA 345; 156 A Crim R 269 at [51]-[57].

41. (2006) 66 NSWLR 151; [2006] NSWCA 172 at [43].

Failure to address significance of subject-matter of statements

51. Ground 1.1 alleged jurisdictional error on the part of the District Court judge “by failing to address substantial arguments relied on by the applicant.” The first substantial argument was identified in the following terms in ground 1.1:

“b.   a substantial argument on the part of the Applicant related to the significance of the statements with respect to which the Applicant was found to have lied in the context of the scope of his dealings with the matter the subject of the lies and the events surrounding those dealings;

c.   the significance of the statements bore on whether the Applicant would necessarily have remembered a particular utterance recorded in a telephone intercept which was relied on to prove that he lied in his evidence before ICAC”.

52. The issue for the District Court on the appeal was whether the applicant knew that certain statements were false when he made them in evidence before the Commission. In written submissions filed in the District Court, the introductory paragraphs identified the case as involving error on the part of the magistrate in failing to give proper weight to the evidence of the medical experts.

53. Of the 66 paragraphs of the submissions, one paragraph, which was neither referred to in the opening paragraphs nor in the conclusion, suggested that a review of the telephone calls between the applicant and Mr Stavrinos showed that they were working on a number of media strategies and that “given the range of matters being discussed …, which was five months prior to when the appellant gave the impugned evidence before ICAC, it is not incredible, particularly in light of his age, medical history and severe difficulty in retaining information over time, that the appellant may have forgotten the particulars of his conversations with Mr Stavrinos in relation to Mr Neish.” The submissions identified a number of reasons why the applicant may have forgotten the particular conversations. No doubt forgetting was a significant issue raised by the applicant in his defence; however, the primary focus was upon the medical evidence as to the impairment of his memory, not the insignificance of the conversation in question.

54. In oral submissions, it was the prosecutor who raised the contention that “the subject matter of the appellant’s evidence” was a matter of particular importance to him. The prosecutor referred to expert evidence drawing a distinction between “someone’s ability to recall unrelated unimportant information as compared with something that’s of importance to the particular subject”. ^[42] The prosecutor, referring to a number of conversations, identified evidence that “demonstrates the importance of both the termination of Mr Neish, the reason for doing so, the nature of the finding of the pornography and evidence that the Crown relies upon to show that the appellant had a motive to leak this material to the media.” ^[43]

    42. Tcpt, 01/02/21, p 3(25).

    43. Tcpt, p 7(5).

55. This was a case which the applicant no doubt needed to meet. Senior counsel for the applicant did deal with these matters in oral submissions. After addressing the expert evidence, the following exchange took place: ^[44]

“DHANJI: …The other aspect that is relied upon by the Crown is motive but one has to be a little bit careful here, it’s not motive to commit the actual offence charged. The actual offence charged is of course the giving of false evidence. The motive that is spoken of is the desire to get rid of Mr Neish. What that is really going to is not motive in the ordinary sense but rather as I apprehend it a reason why the Crown submits this would have been something likely to have been recalled by the appellant when he gave his evidence.

HER HONOUR: I understand that to be the basis of the argument.

DHANJI: Yes. The difficulty with relying upon that as of significance is firstly, when one is looking to prove falsity of particular evidence or that he made a particular false statement one is actually looking at a very small aspect of the entire imbroglio that the overall scheme of things no doubt was of significant importance to the appellant, that is a particular redevelopment proposed in relation to the Civic Centre, no issue that he would have remembered that that was going on.

There’s probably no issue he would have remembered that there was divisions as to that and his particular role in that, that was all of importance, and indeed there is no issue that he remembered that he had a desire to get rid of Mr Neish but what we are talking about is very particular evidence in relation to doing certain things with certain material, and the motive is said to be, well, sorry, the significance is said to be, well, he’d remember that because it was going to help him get rid of Mr Neish and that was going to help him in terms of his overall objective but the difficulty is that the particular conversation relied upon in relation to sequence 7 is one that actually occurs after Mr Neish has already agreed to leave ….”

44. Tcpt, p 9(8).

56. Senior counsel then took the judge through the extensive evidence of communications in relation to the pornography and other concerns in relation to Mr Neish. He dealt with the expert evidence in detail. Concluding in relation to sequence 7, counsel submitted: ^[45]

“So given the particular nature of what’s necessary to prove that he said, and in the context of this evidence, that he remembered, that is he was aware of the falsity, one can see that it’s somewhat at odds with the Crown’s submission that this is a very significant event. It’s a very small portion of conversation in the context of a strategy that’s going in a different direction in the context of a man with cognitive deficit. So you could not be satisfied beyond reasonable doubt in relation to sequence 7.”

45. Tcpt, p 21(36).

57. No doubt the significance of the subject-matter of the statements to the applicant was identified as a factor relevant to the proof of the charges. However, it was a matter relied on in the first instance by the prosecutor, to which the defendant responded. The response (not based on any evidence) was that once Mr Neish’s employment had been terminated, releasing information about the adult pornography on his laptop was no longer of any concern to the applicant.

58. Further, the bland statement that if the subject-matter were no longer of significance to him he might not have remembered the utterance, elides a number of issues. It was not a matter based on established or uncontroversial primary facts; it was an inference to be drawn from a range of primary facts. The applicant asserted that he did not remember having heard the intercepted call played at the hearing, on probably two occasions. It was not a matter of remembering from five months earlier. In any event, the reasoning of the judge demonstrated that she drew inferences from the transcript of the calls themselves.

59. The third finding set out above addressed the significance of the particular communication. It described the removal of Mr Neish as “an important task” for the applicant. The judge clearly considered it remained important to him to ensure that the finding of pornography became publicly known after the agreement had been signed. The judge said that his memory failed only when presented with evidence of having lied. This was an explicit rejection of any submission that a reasonable doubt attended his memory of the exchange (which he had recently heard played at the hearing in the Commission) because the matter was of no importance.

60. There was no issue, let alone a substantial part of the applicant’s case, which was disregarded by the judge. In fact, the issue was not articulated in those terms to the judge in either written or oral submissions. No jurisdictional error was established on the basis of ground 1.1.

Failure to fully address the expert evidence

61. The substantial argument which was not addressed according to ground 1.2 was twofold, namely (i) the significance of the evidence of Professor Arnolda, and (ii) the reliability of the opinions of Associate Professor Batchelor.

62. As has already been explained, the judge dealt in some detail with the evidence of both experts.

63. It is true that the applicant’s written submissions (and indeed the oral submissions) addressed the evidence at length: it was the focus of his case on appeal. The applicant’s written submissions in this Court identified nine bases upon which it was said their evidence could give rise to a reasonable doubt as to whether the applicant knowingly gave false evidence. The submissions accurately recorded, in summary, the opinions given by the experts.

64. There is no demonstration of a failure to address the arguments because the judgment did not reflect each basis of the submission. The judge dealt, as the magistrate had done, with the thrust of the expert evidence and rejected the proposition that it demonstrated a basis for a reasonable doubt as to cognitive impairment or memory loss in June 2013. As already noted, there were elements of Dr Batchelor’s evidence, including the change in her opinions in two weeks in April 2019, which affected the weight given to her opinions. There was the proposition that Professor Arnolda’s opinion was theoretical, he not having met or treated the applicant at any time, even six years after the events in question. The judge placed greater weight on her analysis of the actual conversations, which were recorded, having been intercepted, and the transcript of the evidence given. She was entitled to do that. She was not obliged to then explain what weight she might have placed on the expert evidence on the hypothetical basis that the other evidence was not before the court.

65. In so far as the ground addresses the reliability of the opinions of Dr Batchelor, the submission was as follows: ^[46]

“With respect to Associate Professor [Batchelor], Tupman DCJ also failed to deal with the Applicant’s argument that, given her explanation for the differences in her two reports, Associate Professor Batchelor’s evidence was reliable”.

The submission demonstrated the misconception underlying the ground. Reliability was a side issue. The judge identified the views of Dr Batchelor as to the cognitive impairments, stating that there was “no real detail of how this cognitive impairment would have manifested itself” and the report “did not seem to address how these deficits, to the extent they may have been present in 2013, would have impacted on the evidence he gave to ICAC.” ^[47] The judge referred to Dr Batchelor’s oral evidence that the applicant’s answers to the Commission “in fact demonstrated cognitive impairment.” ^[48] As has been noted, the judge took a different view of those answers. Dr Batchelor’s evidence was also questioned on the basis of the remarkable change between the first report and her oral evidence. It may have been open to the judge (and the magistrate) to accept her explanation for the change, but they did not do so. The magistrate heard her giving evidence, which the judge did not.

46. Applicant’s written submissions, 7 September 2021, par 48.

47. District Court judgment, pp 13-14.

48. District Court judgment, p 14.

66. This was patently an area of complaint which fell within the qualification identified in Whisprun that the judge need not mention every factor or argument relied on by the losing party; were it otherwise judgments would soon become “longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”^[49] There was no error of law, let alone jurisdictional error, in the terms of ground 1.2.

    49. Whisprun at [62].

Review – ground 2 – burden of proof

67. The defence called two experts for the purpose of establishing a reasonable possibility that the applicant did not know that the answers he gave to the Commission were false or did not believe them to be true. The applicant submitted that the judge imposed on him an onus of establishing on the balance of probability that he suffered from a cognitive impairment in July 2013.

68. It is of course possible that an experienced judge dealing on a daily basis with criminal prosecutions can understand the importance of the criminal standard of proof and refer to it on several occasions in a judgment and yet fail to apply it at a particular point. Acknowledging that possibility, the court will not readily draw the inference that that has happened in the absence of some clear indication that express statements as to the course the judge was taking were inaccurate or disregarded.

69. First, the judge identified as an issue in dispute the requirement for the prosecution to prove that the appellant knew that his statement was false or did not believe it to be true. ^[50] When dealing with the expert evidence, the judge stated: ^[51]

“It was the appellant’s contention before the Magistrate, and on appeal, that the prosecution cannot negative the possibility that in giving his evidence to ICAC in 2013 the appellant was not fully cognisant, so that his evidence of denials was not in fact knowingly false but possibly the result of memory loss.”

The applicant conceded that that was a correct statement of the contention and one the judge accepted as an accurate reflection of the legal principle.

50. District Court judgment, pp 4-5.

51. District Court judgment, p 12.

70. Next, in dealing with Dr Batchelor’s evidence, the judge noted that the applicant had reported to Dr Batchelor, in early April 2019, “that his memory had begun to fail him”, but observed that “there is no evidence of that having occurred previously or the appellant having asserted it previously.” ^[52] The absence of evidence is consistent with rejecting the basis for a real possibility.

    52. District Court judgment, pp 12-13 (emphasis added).

71. The applicant sought to rely upon two statements in which, in reaching conclusions as to whether his evidence was knowingly false the judge rejected aspects of the applicant’s case. Thus, in passages set out above, the judge stated:

“I do not accept that the appellant’s asserted inability to remember having heard the intercepted call … was in fact genuine. I do not accept that the evidence demonstrates that he had any cognitive impairment or memory loss as at July 13, which would be the basis for any genuine inability to remember having heard that intercepted call played to him at an earlier time during the ICAC hearings.”

72. That factual finding did not assume a legal burden on the defendant to disprove the prosecution case. Those parts of Dr Batchelor’s evidence which were not rejected as unreliable, potentially raised the “possibility” that the applicant was suffering memory loss in July 2013. To reject that evidence is to reject evidence of a possibility.

73. Furthermore, the contention assumed that the burden of proof operates separately with respect to each primary or intermediate fact which is to be established beyond reasonable doubt. That assumption is inconsistent with the reasoning in Shepherd v The Queen,^[53] unless an ultimate fact necessarily depends on a particular primary or intermediate finding. What had to be proved beyond reasonable doubt was the applicant’s knowledge of the falsity of his statement. The judge found that “the evidence is overwhelming that this is the case”, ^[54] for which conclusion the judge then gave several reasons, including that set out above. After setting out four reasons, the judge stated: ^[55]

“Overall there is no other rational explanation for the answers than that when giving his answers the appellant knew that they were false or did not believe them to be true.”

She continued:

“I am thus satisfied that this offence has been proved beyond reasonable doubt”.

53. (1990) 170 CLR 573; [1990] HCA 56.

54. District Court judgment, p 17.

55. District Court judgment, p 18.

74. These statements unquestionably reflect application of the correct legal test.

75. In relation to sequence 8 the judge concluded, “for the same reasons as found earlier” ^[56] that the evidence was knowingly false. She continued:

“There is no evidence to establish that any cognitive impairment or memory loss played any part in his giving this evidence falsely, for the same reasons as already referred to. For that reason I accept too that this offence is proved beyond reasonable doubt ….”

If there were “no evidence” to establish cognitive impairment, and other evidence established knowledge beyond reasonable doubt, the supposed evidence of cognitive impairment could not raise a reasonable possibility to the contrary. There was no reversal of the onus of proof.

56. District Court judgment, pp 20-21.

76. For these reasons, the applicant has established no error of any kind, let alone jurisdictional error, with respect to the adoption and application of the criminal burden of proof on the prosecution. Ground 2 provided no basis for this Court to intervene.

Conclusions

77. The summons for judicial review must be dismissed. The Court should make the following orders:

1. Dismiss the amended summons for judicial review filed on 15 November 2021.

2. Order that the applicant pay the Director’s costs in this Court.

Effect on sentence

78. On 10 September 2021 Tupman DCJ imposed a sentence of imprisonment for 10 months to be served by way of an intensive correction order. The sentence commenced on the day on which it was imposed. Three days later, the applicant filed a summons in this Court seeking judicial review of his conviction.

79. Section 69C of the Supreme Court Act1970 (NSW) applies to proceedings for judicial review of a determination by the District Court of an appeal from a conviction in the Local Court: s 69C(1). Pursuant to s 69C(2), the execution of the sentence is stayed. However, the stay does not apply to a person “who is in custody when proceedings seeking judicial review are commenced unless and until the claimant is entitled to be released on bail under the Bail Act 2013 or bail is dispensed with”: s 69C(3). The reference to “a person who is in custody” includes a reference to a person who is subject to an intensive correction order: s 69C(6).

80. Doubts have been expressed as to the operation of the Bail Act with respect to intensive correction orders. In Liristis v Director of Public Prosecutions (NSW) ^[57] Hulme J, in dealing with an application for bail in this Court, relied on the power to grant bail under s 61 of the Bail Act. ^[58] Section 61 provides that “[a] court may hear a bail application for an offence if proceedings for the offence are pending in the court.” Hulme J had some doubt as to whether the Court of Appeal is a “court” for the purposes of the Bail Act because it is “not mentioned in the definition of ‘court’ in s 4(1) of the Bail Act.”^[59] That objection may not be fatal: the definition of “court” includes the Supreme Court, of which the Court of Appeal is an integral part.

    57. [2015] NSWCA 261.

    58. Liristis at [7].

    59. Liristis at [8].

81. There may, however, be greater doubt as to whether the proceedings by way of judicial review are “criminal proceedings”, although they could be so characterised on the basis that they concern the validity of a conviction or sentence.

82. Further, for that power to be engaged, there must be a bail application for an offence where “proceedings for the offence” are pending in the court. Section 5(1)(d) of the Bail Act defines the phrase “proceedings for an offence” as –

“criminal proceedings against a person for an offence … and includes the following:

…

(d)   proceedings on an appeal against conviction or sentence.”

83. A doubt was raised in Liristis as to whether proceedings for judicial review fall within the description “an appeal” under s 5(1)(d) of the Bail Act. Again, however, there may be less difficulty with that term because the definition is inclusive and can be read to include a proceeding in which a conviction or sentence is sought to be set aside. It is desirable to read the terms in the Bail Act broadly, in order to produce an harmonious operation between two State statutes, namely the Bail Act and the Supreme Court Act, where s 69C of the latter assumes that a person subject to an intensive correction order, and who has judicial review proceedings on foot, may be eligible for bail.

84. In Hay v Director of Public Prosecutions (NSW),^[60] Johnson J raised an additional problem, namely that where there is an appeal pending in the Court of Criminal Appeal, bail is not to be granted unless “special or exceptional circumstances” are established. ^[61] As Johnson J noted,^[62] there is “some tension” between a tight constraint applicable to an appeal before the Court of Criminal Appeal, pursuant to a statutory entitlement to appeal or to seek leave to appeal, but not to judicial review in the Court of Appeal, in circumstances where no right of appeal exists.

    60. [2020] NSWSC 219.

    61. Bail Act, s 22(1)(a).

    62. Hay at [22].

85. These infelicities of drafting are unfortunate, but they do not assist in determining whether there is a power to grant bail with respect to judicial review proceedings in relation to an intensive correction order. The uncertainty may cut both ways. ^[63] For example, a person who is at large in the community and assumed that the order had been stayed by the filing of a summons in the Court of Appeal, might find himself or herself in breach of the terms of the intensive correction order if there were not stay. On the other hand, a person who assumed that no stay was in place and continued to comply with the conditions (perhaps onerous) of the order might find that such compliance had been futile because the order had been stayed.

    63. See Gelle v Director of Public Prosecutions (NSW) [2017 NSWCA 245 at [13]-]15].

86. These considerations warrant resolution of the infelicities; they do not permit the Court to depart from the clear assumption in the Supreme Court Act that bail is available and that the stay will not operate unless bail has been granted with respect to the intensive correction order. Accordingly the common position of the parties in this case should be accepted. As the applicant understood to be the case, there has been no stay and he has served some six months of the order imposed by Tupman DCJ on 10 September 2021. No order of the Court is required to vary the commencement date of the sentence.

87. MACFARLAN JA: I agree with Basten JA.

88. PAYNE JA: I agree with Basten JA.

**********

Endnotes

Decision last updated: 11 March 2022