Regina v Christine Gay Fish and John Gordon Swan - [2002] NSWCCA 196

No judgment structure available for this case.

Reported Decision:
(2002) 131 A Crim R 172

New South Wales

Court of Criminal Appeal

CITATION: Regina v Christine Gay FISH and John Gordon SWAN [2002] NSWCCA 196

FILE NUMBER(S): CCA 60906/01; 60907/01

HEARING DATE(S): 24/5/02

JUDGMENT DATE:
14 June 2002

PARTIES :

Regina
Christine Gay FISH (Appellant)
John Gordon SWAN (Appellant)

JUDGMENT OF: Ipp AJA at 1; Dunford J at 2; Bell J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 01/11/0206; 01/11/0207

LOWER COURT JUDICIAL
OFFICER : Stewart DCJ

COUNSEL : P J Power (Crown)
J Dailly SC (Appellants)

SOLICITORS: S E O'Connor
James A Hall (Appellants)

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Independent Commission Against Corruption Act 1988

CASES CITED:
M v The Queen (1994) 181 CLR 487
R v Aristodemou (unreported, NSWCCA, 30 June 1994)
R v Bird [1891] Criminal Law Cases 387
R v L (unreported, NSWCCA, 17 June 1996)
R v Linehan [1921] VLR 582
R v Markuleski [2001] NSWCCA 290
R v Yilmaz (unreported, NSWCCA, 4 March 1991)
Regina v Bulliman (unreported, NSWCCA 25 February 1993)
Regina v Chapman (unreported, NSWCCA, 21 May 1998)
Regina v Salesi Fifita (unreported, NSWCCA, 26 November 1992)
Regina v Traino (1987) 27 A Crim R 271

DECISION: See paragraph 183 for orders

60906/01
60907/01

IPP AJA
DUNFORD J
BELL J
Friday 14 June 2002

REGINA v Christine Gay FISH and John Gordon SWAN

Judgment

1 IPP AJA: I agree with Bell J.

2 DUNFORD J: I agree with the orders proposed by Bell J and with her Honour's reasons for such orders.

3 BELL J: The appellants, together with a man named Paul Andrew Watson (“Watson”), were arraigned in the Sydney District Court on 10 September 2001 on an indictment that contained fifteen counts. They pleaded not guilty to each count alleged against them and stood their trial.

4 The appellant, Christine Gay Fish (“Fish”), was charged in counts one to seven with the following offences:

Crimes Act

(2) On 22 July 1990 at Kings Cross that she did assault Jason Stockman;

(3) On 22 July 1990 at Kings Cross that she did assault Cory Brown;

(4) On 22 July 1990 at Kings Cross that she did assault Jason Stockman;

(5) On 22 July 1990 at Kings Cross that she did, with intent to pervert the course of justice, force Michael Gordon to make a statement against his will;

(6) On 7 February 1991 at Sydney in judicial proceedings against Cory Brown at the Downing Centre Local Court that she did make a false statement on oath knowing the statement to be false and concerning a matter material to the proceedings to the effect that it was incorrect that she hit Jason Stockman;

(7) On 8 September 1993 at Sydney in judicial proceedings against Cory Brown at the District Court of New South Wales that she did make a false statement on oath knowing the statement to be false and concerning a matter material to the proceedings to the effect that it was untrue and that she didn’t see that police lined up on either side and as each of the persons was brought out of the truck those persons were struck with batons.

5 The appellant, John Gordon Swan (“Swan”), was charged in counts eight to eleven with the following offences:

(8) On 22 July 1990 at Kings Cross that he did use unlawful violence towards another by conduct that would cause a person of reasonable firmness present at the scene to fear for his personal safety (“affray” - brought pursuant to s 93C of the Act);

(9) On 22 July 1990 that he did assault Cory Brown;

(10) On 7 February 1991 in judicial proceedings against Cory Brown at the Downing Centre Local Court that he did make a false statement on oath, concerning a matter material to the proceedings, knowing the statement to be false, namely a statement to the effect that it was not correct that as each person was removed from the back of the police vehicle they were assaulted by a number of police;

(11) On 8 September 1993 at Sydney in the State of New South Wales, in judicial proceedings concerning Cory Brown in the District Court of New South Wales that he did make a false statement on oath, concerning a matter material to the proceedings, knowing the statement to be false, namely a statement to the effect that it was not correct that as each person emerged from the police truck he was hit a number of times with either punches or baton blows.

6 Watson was charged in counts twelve to fifteen with the following offences:

(12) On 22 July 1990 at Kings Cross that he did assault Cory Brown;

(13) On 22 July 1990 at Kings Cross that he did an act with intent to pervert the course of justice namely he did force Michael Gordon to make a statement against his will;

(14) On 7 February 1991 in judicial proceedings against Cory Brown at the Downing Centre Local Court he did make a false statement on oath, concerning a matter material to the proceedings, knowing the statement to be false, namely a statement to the effect that it was incorrect that he attempted to touch or hit Cory Brown;

(15) On 8 September 1993 in judicial proceedings concerning Cory Brown in the District Court of New South Wales that he did make a false statement on oath, concerning a matter material to the proceedings, knowing the statement to be false, namely a statement to the effect that he did not see Cory Brown or any other persons there, assaulted by any police officer.

7 At the close of the Crown case the trial judge directed the jury to acquit Fish on counts five and six and Watson in respect of counts fourteen and fifteen. On 9 October 2001 the jury returned verdicts of not guilty on each of these four counts in accordance with the trial judge’s directions.

8 On 25 October 2001 the jury returned verdicts convicting Fish of one count of perjury contrary to s 327(1) of the Crimes Act 1900 (“the Act”) and Swan of two counts of perjury contrary to that section of the Act. Verdicts of acquittal were returned with respect to counts two, three, nine, twelve and thirteen. The jury were unable to reach a verdict with respect to counts one, four and eight. After further deliberation the jury was discharged without verdict in respect of these three counts.

9 The offence of perjury provided by s 327 of the Act carries a maximum penalty of imprisonment for ten years. On 17 December 2001 Fish was sentenced to a term of twenty months imprisonment to commence on 17 December 2001 and expire on 16 August 2003. A non-parole period of twelve months expiring on 16 December 2002 was specified.

10 Swan was sentenced to imprisonment for twenty months on each of the two counts. In each case a non-parole period of twelve months was specified. The second sentence was made consecutive upon the first. The first sentence commenced on 17 December 2001. The non-parole period in relation to that sentence was specified to expire on 16 December 2002. The sentence imposed with respect to the second conviction was expressed to commence on 16 December 2002 and to expire on 15 August 2004. The non-parole period in respect of this second offence will expire on 15 December 2003.

11 Both appellants appeal against their convictions and seek leave to appeal against the severity of the sentences imposed upon them.

12 A convenient summary of the facts is to be found in the trial judge’s remarks on sentence as follows:

“On 22 July 1990, a group of twenty or so nineteen and twenty year old men went out to celebrate the twentieth birthday of one of their number. They hired a bus and went from place to place in the Sydney metropolitan area as far afield as Narabeen in the north and Caringbah in the south, visiting clubs and hotels where they drank varying quantities of alcoholic liquor in various forms. There was drinking on the bus itself and some of their number misbehaved along the way.

About 2 am in the morning of 23 July, they arrived in the vicinity of Kings Cross and an indeterminate number of the group, including Mr Brown, alighted form the bus which had been parked in William Street, and made their way to Darlinghurst Road and commenced to walk north towards the El Alamein fountain. Co-incidentally, a group of off duty detectives and other police and their spouses, partners and friends were engaged in a social occasion which continued until shortly before 2am at the Gazebo Hotel, situated a short distance from the Kings Cross Police Station which was then, and still is, situated adjacent to the fountain.
…

It is clear that a brawl erupted involving these young men, Brown included, and the off-duty police. It seems clear that at first the group of young men, because of numbers, had the upper hand. However, after a signal had been sent to all other police in the area that some of their off-duty colleagues were in trouble, an unknown number of uniformed police arrives at the scene and with the assistance of doormen working at the strip clubs, brothels and other establishments in Darlinghurst Road, managed to quell what had been developing into a near riot and arrest nine of the group of young men including Brown.
…

The nine prisoners, having been placed with considerable difficulty into two police vehicles, eight in one and one in another, were driven to the Kings Cross Police Station a few minutes from the scene. Some of the off-duty police including these two prisoners, Fish and Swan, walked to the police station. Langton, the then Detective Sergent Haken, who was also at the scene, walked to the police station too, as did Swan’s wife and Constable Paul Anthony Watson, who had been punched and knocked to the ground during the brawl. It would seem that the chief inspector of police, one Chief Inspector Loomes, who was at the function at the Gazebo that night also walked to the police station or at least was there at some time during the early morning.
…

At the police station there followed disgracefully brutal behaviour by police, including Haken, Langton and others. Langton perhaps was, if not the most, certainly one of the most violent in his behaviour to these young men, who were pulled out of the police vehicles one by one and punched, kicked and struck with police batons, provided to those police who did not have them, by Haken, as they were forced to move between the two lines of police, between the police vehicles and the holding cells. In other words, these young prisoners were forced to run the gauntlet of police who exacted severe summary punishment on them in vengeance, for what they had allegedly done to the police and their colleagues in Darlinghurst Road earlier.
…

It should be noted that Mr Dailly SC conceded during the trial that such an affray took place. What was in issue was whether his clients, Fish and Swan, took part in it. In the event, the jury could not agree on count one in the indictment, a count of affray against Fish, nor count eight against Swan, also a count of affray, and were discharged without a verdict in relation to those counts.

Further, in relation to Fish I directed a verdict of not guilty on counts five and six, counts of attempting to pervert the course of justice and perjury at the Local Court in proceedings against Brown respectively. She was found not guilty by the jury on counts two and three. Those counts were assaults on Stockman and Brown respectively. They jury could not agree on count four, also a count of assault on Stockman and were discharged without a verdict on that count. The jury convicted Fish on count seven, the matter with which I am now dealing.

So far as the other counts against Swan are concerned, he was found not guilty by the jury on count nine, an alleged assault on Brown and guilty of counts ten and eleven. Both of these are counts of perjury, one in the Local Court and one in the District Court, in proceedings against Brown.

…

Placing this false statement in context, it must be remembered that Brown had been charged on the morning of 22 July 1990 with a number of charges, including assaulting police during the brawl in Darlinghurst Road and thereby causing actual bodily harm, and maliciously damaging Fish’s wristwatch and Watson’s woollen jumper…Brown appealed to the District Court where his Honour Judge Gallen, now deceased, overturned the magistrate’s decision, quashing it and all other orders made by the magistrate.
…

Brown and the other young men arrested that morning were seriously assaulted in a cowardly and reprehensible manner by the colleagues of these two prisoners. Those colleagues were wreaking their vengeance upon them for what they say happened in Darlinghurst Road. The jury found that Fish lied on her oath when she said that she did not see this occurring. In other words, although the jury did not find her guilty of taking part in this shameful activity, they found that she knew it had occurred and lied on her oath about having seen it.
…

13 The two appeals raised a number of common issues. They were heard together. The first ground relied upon by Fish raised an issue peculiar to her appeal.

Ground one – Fish

The statement by Fish in the District Court on 8 September 1993, alleged to be knowingly false, was ambiguous. It lacked precision and there was insufficient evidence to establish beyond reasonable doubt that it was false.

14 A transcript of the evidence given by Fish before the Sydney District Court on 8 September 1993 was tendered in the Crown case. The evidence the subject of count seven was given towards the end of the appellant’s cross-examination:

“Q. Back at the police station, I put it to you that these men were brought out of the police truck, and in effect, they were made to run the gauntlet of the batons. What do you say about that?

A. I’m sorry, what do you mean by run the gauntlet?

Q. I’m suggesting to you that police lined up on either side, and as each of the persons was brought out of the truck, those persons were struck with batons?

A. That’s untrue. I didn’t see that.”

15 Two challenges were advanced in support of this ground. Firstly, it was contended that the question was a double barrelled one; putting two distinct propositions:

(i) That the police lined up on either side;

16 It was submitted that Fish’s answer was ambiguous and was capable of conveying either that the appellant did not see:

(i) Police lined up on either side, or

(ii) Each person struck as that person was brought out of the truck.

17 Mr Dailly SC, who appeared on behalf of both the appellants, relied on the authority of R v Bird [1891] Criminal Law Cases 387 in support of the proposition that the offence charged was not proved because the evidence led in support of it was ambiguous.

18 Bird’s case was a decision of Day J given on November 20, 1891 at the Worcester Autumn Assizes. It was a case concerned with the common law offence of perjury. The ingredients of the common law offence are similar to the ingredients of the offence created by s 327(1) of the Act: Russell on Crime 12th Ed, Stevens & Sons, at 291. In Bird the evidence relied upon by the prosecution did not prove the falsity of the statement assigned as perjury because it was ambiguous. The indictment charged Bird with falsely stating that he had seen James Walker beating an osier bed at about fifteen minutes past the hour of eleven in the forenoon. There was evidence to prove that James Walker did not beat an osier bed at about fifteen minutes past the hour of eleven on the day in question. The witnesses giving this evidence had not been asked (and did not say) whether their observations related to eleven fifteen in the forenoon or in the evening.

19 Day J held (at 388):

“No doubt there has been an oversight. But I am afraid that I must give effect to the objection, though it is merely a technical one. The evidence given before the magistrates was ambiguous; and there is a variance between that evidence and the indictment. This is a criminal charge, and both the evidence and the averment in the indictment must be identical in order to convict a man of perjury.”

20 It seems to me that Bird is to be distinguished from the present case. Here there was evidence in the Crown case capable of proving that police lined up on either side of the police truck (“the truck”) and that each prisoner was struck as he was removed from it.

21 Count seven charged Fish with making a false statement to the effect:

“that it was untrue and that she didn’t see that police lined up on either side and as each of the persons was brought out of the truck those persons were struck with batons”.

Criminal Procedure Act

Regina v Traino

22 At the close of the Crown case at trial an application was made for a directed verdict of acquittal. The trial judge rejected this application holding that when the evidence was read in context there was no ambiguity. His Honour referred to the two questions and answers which are set out in paragraph 12 as providing the context. He observed that the cross-examiner put to Fish that upon their removal from the truck the prisoners were made to run the gauntlet. She sought clarification of what was meant by the expression “the gauntlet”. The cross examiner explained the expression as conveying (i) that the police lined up on either side and (ii) that as each prisoner was removed from the truck he was assaulted. By her statement, “that’s untrue. I didn’t see that” the appellant was denying the proposition that the prisoners had been made to run the gauntlet of police lined up on either side striking each with batons as he was brought out of the truck.

23 I consider the trial judge was right to approach the matter in the way in which he did. The question which elicited the answer “that’s untrue. I didn’t see that” should not be viewed in isolation from the question which preceded it. The latter response was a denial of the fact (and of seeing) a gauntlet style assault upon the prisoners as they were removed from the truck.

24 In Traino King CJ observed at 273:

“I have no difficulty in envisaging a situation in which the cumulative effect of a number of false statements, perhaps each chargeable as a separate perjury, may amount to a single compendious lie which is chargeable as such in a single count. Thus, for example, a number of false statements as to various disabilities may amount to a compendious statement that the witness is incapable of performing heavy work or is incapable of performing remunerative work or is incapable of undertaking physical exercise or is incapable of engaging in active sporting activities. I see no reason why such a compendious false statement should not be charged as a single assignment of perjury in a single count of an information. Whether that course is proper in a particular case must depend upon the circumstances.”

25 The second aspect of the challenge advanced by this ground is that the evidence did not support the count in that there was no evidence led from two of the prisoners in the garage; fair-headed Matthew Thompson (“Thompson”) and Wayne Byatt (“Byatt”). Mr Dailly pointed to the terms of the count, “as each of the persons was brought out of the truck those persons were struck with batons”. A number of witnesses gave evidence of seeing Byatt struck with batons as he was removed from the panel van (the evidence established that Byatt was conveyed to the Kings Cross police station in a panel van and not in the truck with the other young men). The preponderance of evidence favoured the view that Byatt was the first person to run the gauntlet. Mr Dailly accepted that there was evidence from sources other than Byatt to establish that he was struck with batons after he was removed from the panel van.

26 No witness referred to Thompson as being struck as he was removed from the truck. I do not consider that it was necessary to lead evidence from each of the persons removed from the truck in order to establish that each person removed was struck with batons. Trevor Haken (“Haken”) gave evidence that he was one of the police officers who formed part of the gauntlet. He had distributed batons to the other police in the gauntlet. He said:

“Well, they were removed from the truck and as they were, I suppose, run along the line between the police they were hit with batons on a number of occasions to get them into the cell” (T902).

27 There was a deal of other evidence to support Haken’s account that the men removed from the truck, were hit with batons on a number of occasions to get them into the cell.

28 There was evidence from which it was open to the jury to find beyond reasonable doubt that as the men were removed from the truck police lined up on each side with batons and struck each man as he ran to the door of the garage.

29 I would reject this ground of appeal.

Ground Two Fish & Ground One Swan - the conviction is unsafe and dangerous. The jury, acting reasonably, must have entertained a sufficient doubt as the guilt of the accused.

Ground Three Fish & Ground Two Swan - the verdict of guilty of “perjury” is inconsistent with the jury’s verdicts of not guilty on other counts

30 The appellants contend that the verdict, in the case of Fish, and the verdicts, in the case of Swan, are unreasonable or cannot be supported having regard to the evidence, to adopt the terms of s 6(1) of the Criminal Appeal Act 1912. Ground 3 in the appeal of Fish and ground 2 in the appeal of Swan contend that the verdicts are unreasonable in that the convictions on the counts charging perjury are inconsistent with the acquittals on other counts. It is convenient to deal with these two grounds jointly.

31 Fish was acquitted on counts two and three, which charged her with assaults on Stockman and Brown respectively. Both assaults were said to have taken place in the holding cell in the presence of a number of other prisoners.

32 Swan was acquitted on count nine which charged an assault on Brown which was said to have taken place in one of the detectives’ offices.

33 Watson was acquitted of count twelve which charged him with an assault on Brown in the one of detectives’ offices. Watson was also acquitted of count thirteen which charged him with an attempt to pervert the course of justice by forcing Michael Gordon to make a statement against his will.

34 In Mr Dailly’s submission the verdicts of not guilty on counts two, three, nine and twelve must be taken to have involved a rejection of the evidence of Brown, Martin and Gordon.

35 In R v Markuleski [2001] NSWCCA 290; 52 NSWLR 82 Spigelman CJ at 87 observed:

Jones

Jones v The Queen

MacKenzie v The Queen

Mackenzie

‘Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness’.

Jones

MacKenzie

‘… the respect for the function which the law assigns to juries (and the general satisfaction with their performance) have led courts to express repeatedly, in the context both of criminal and civil trials, reluctance to accept a submission that verdicts are inconsistent in the relevant sense. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury. In a criminal appeal, the view may be taken that the jury simply followed the judge’s instruction to consider separately the case presented by the prosecution in respect of each count and to apply to each count the requirement that all of the ingredients must be proved beyond reasonable doubt.’ (Footnotes omitted).

M v The Queen

Jones

‘… the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witness. On the contrary, the Court must pay full regard to those considerations.’ (Footnotes omitted).

It is against this background, that the test for an unreasonable verdict – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty – must be applied to the whole of the facts and circumstances of a particular case.

36 There was no issue at the trial about the fact that police had lined up on either side of the truck and that at least some of the prisoners were struck with batons as they were removed from it. In the way in which the trial was conducted it is accepted that it was necessary for the Crown to prove beyond reasonable doubt that each of the appellants was present in the garage of the police station at the time the prisoners were removed from the truck. This was the central issue as far as the counts of perjury the subject of these appeals were concerned.

37 In his written submissions Mr Dailly placed emphasis on what was said to be a requirement that there be two sources of credible evidence to sustain a conviction for perjury. He cited R v Linehan [1921] VLR 582 in support of this proposition. In that case Cussen J delivering the judgment of the Court (Irvine CJ, Cussen and Schutt JJ) stated at 588:

“There is in relation to perjury an exceptional rule of evidence that where the prosecution is forced to rely on direct oral evidence in contradiction of the accused’s statement, there should be an acquittal, unless the falsity of the accused’s statement is proved by two witnesses or by one witness with corroboration.”

38 Mr Dailly sought to analyse the evidence led in support of each count contending that the evidence of each of a number of witnesses was not credible. In his written submissions he appeared to be contending for a two-stage approach in assessing the sufficiency of evidence to sustain a conviction of perjury. On such an approach one looks at each of the witnesses called in support of the Crown case and determines whether the evidence of that witness is capable of being viewed as that of a credible witness. One might eliminate one or more of the witnesses relied upon by the Crown by this process. One then looks to whether the Crown is left with at least two witnesses who have passed the threshold test of credibility. I do not accept that such an approach flows from Linehan or is otherwise supported by authority.

39 Section 164(2) of the Evidence Act 1995 provides that subsection (1) (which abolishes the requirement for corroboration which previously operated as a rule of law or practice with respect to certain categories of evidence) does not effect the operation of a rule of law that requires corroboration with respect to the offence of perjury.

40 In order to prove the falsity of the statements the subject of the perjury counts in this case it was necessary for the Crown to lead evidence as to that fact from two witnesses or from one witness whose evidence was corroborated. The trial judge directed the jury in these terms:

“To support a conviction for perjury there must be the evidence which proves the falsity of the statement by at least two witnesses. Let us therefore consider the three counts of perjury” (SU123).

41 In the way oral argument developed Mr Dailly accepted that the requirement that there be evidence to support a charge of perjury from two witnesses (or from one witness whose evidence was corroborated) did not require this Court to engage in the two-stage process that I have referred to above. The challenge that the verdicts are unreasonable and cannot be supported by the evidence is to be determined by reference to the principles enunciated in M v The Queen (1994) 181 CLR 487 at 493 - 495:

‘… the question which the Court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the Court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witness. On the contrary, the Court must pay full regard to those considerations.

…

In most cases a doubt experienced by an appellant court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displayed inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”

42 The Crown contended that there were a number of witnesses who placed each of the appellants in the police garage when the gauntlet took place. From this evidence it was open to the jury to accept beyond reasonable doubt that each of the appellants knew that as the prisoners were removed from the truck they were made to run the gauntlet of police hitting them with batons. There was evidence from more than two witnesses in the case of each appellant to establish the falsity of the statements alleged against her or him in the indictment. In the case of Fish the witnesses Cory Brown (“Brown”), Michael Gordon (“Gordon”) and John Martin (“Martin”) each gave direct evidence that she was present in the garage when the assaults occurred. In the case of Swan the witnesses Brown, Gordon, Martin and Haken each placed him in the garage when the assaults occurred.

43 It is necessary to review the evidence relied on in the Crown case to establish the falsity of the statements made by the appellants in order to assess this challenge. It is convenient to also refer to the evidence touching the counts on which the jury returned verdicts of acquittal in order to assess the related challenge which relies upon the suggested inconsistency of the verdicts.

Cory Brown’s Evidence

44 Brown said that after they arrived in the garage of the police station he made observations through a vent at the rear of the truck. He was able to see a line of police both uniformed and non-uniformed police holding batons in their hands. He saw Byatt hop out of the panel van and walk through two lines of police. Byatt was struck by the police as he walked through the lines. Brown recognised some of the people in the lines as having been present during the earlier incident in Darlinghurst Road:

“Q. The people on this occasion you made mention of that were in the line and that had batons, are you able to say how many had batons?
A. From what I saw looked like everybody that was there had a baton, every person I could see from where I was had a baton in their hands.

Q. The people in the line at that stage did you recognise any of them?
A. Yes, some people from the street and others I had not seen earlier.

45 Brown said that he observed Fish, Watson, Swan and David Langton (“Langton”) striking Byatt as he went through the lines of police. He observed that Fish had a baton in her hand. He saw her arm with the baton moving upwards but he was not able to say where on the body it struck Byatt.

46 There were no other females in the lines of police seen by Brown.

47 Brown had not seen Swan prior to seeing him in the line in the garage. Brown said that he was able to identify Swan as having been part of the line because during the course of the night Swan had assaulted him and had become familiar to him.

48 After Byatt was removed from the panel van Brown said that Watson opened the back door of the truck and said “one out at a time”. Brown believed that Shane Edgerton (“Edgerton”) was the first person out of the truck. Brown watched Edgerton make his way between the lines of police officers. He said that Watson, Fish and Swan were present forming part of the lines at this time. He also identified Langton and Haken as forming part of the lines.

49 Brown said that after Edgerton left the garage the door of the truck was opened again. Watson said, “I can see the trouble maker from here” and pointed his baton at him. Watson rammed his baton into Brown’s left rib. Langton appeared at this point and screamed something out. Brown said that he had been surrounded by persons hitting him with batons, punching and kicking him. He described himself as being curled up in a ball as he was assaulted in this way. He was dragged by his hair into the holding cell.

50 Brown said that when he got out of the truck he saw the same people as those he had seen through the vent. He recalled being struck by Langton, Watson and Fish. He said that Fish, Watson and Langton came into the holding cell later with batons and assaulted him and Stockman. These assaults were the subject of counts two and three in the indictment. He gave evidence of an incident in which Swan told Langton to stop kicking Stockman. Swan then turned his back and Langton kicked Stockman again. Thereafter he and Stockman had been taken out of the cell.

51 Brown said that he was taken from the holding cell to a small office where he was assaulted by various persons including Watson. He gave an account that Watson had come into the office and struck him twice on the legs, punching him in the jaw and hitting him around the upper torso with a baton. This evidence was relied upon in support of count twelve. Brown recalled Watson saying words to the effect that he had broken his nose and fucked up his night.

52 Brown also gave evidence that Swan had come into the office during the course of the evening and punched him in the face. This evidence was relied on in support of count nine.

53 In cross-examination Brown was emphatic that he was not mistaken in saying that Watson was present in the gauntlet and that he had struck blows with his baton.

54 Brown made a statement shortly after these events in 1990 (“the first statement”). He agreed that in that statement he had not referred to any woman as being present among the persons who had assaulted him as he was removed from the truck. In the first statement he said this:

“The tall fellow and at least ten men with batons closed in and belted me to my head and body” (T176).

55 In the first statement Brown referred to the police officers variously as “the tall man”, “the thin man”, “the lady” and “the man with the tie”. Swan was the man with the tie. Swan was the only person whom Brown recalled as wearing a tie. Brown came to learn the names of the officers when he saw them at court in connection with the proceedings brought against him.

56 It is clear that by 1995 when Brown gave evidence, concerning the events of this night, before the Royal Commission into the New South Wales Police Service (“the Royal Commission”) he was familiar with the names of the officers whom he had described in the first statement. On that occasion he gave evidence of an assault on Stockman in the holding cell. He said:

“Jason was being kicked by Detective Langton. Then he stopped with Jason came to me and he had a go at me. At some time Detective Haken, I think it might have been, or it could have been Swan, I’m not too sure, one of them said – his exact words ‘that’s fuckin’ enough of the kicking’”(T208).

57 Brown was cross-examined about the reason why he had been unable in 1995 (at a time when he knew the names of the two men) to recall whether the second person in the cell was Haken or Swan. He said that giving evidence before the Royal Commission had been a nerve-racking experience. Ultimately he was unable to explain this failure:

“Q. You had never seen Swan before, had you?
A. Before this night? No.
Q. Did you see him on the street?
A. No.

Q. So as far as in the garage was concerned there were a large number of men there?

A. That’s correct.

Q. It was a traumatic occasion you say, you were being beaten?
A. That’s correct.
Q. You were scared, frightened, is that right?
A. Yes.

Q. And may we take it you were not looking around and saying ‘I will remember that man again by his eyes, by his nose, by his mouth’, I take it you were not doing that?

A. That’s correct.

Q. So you say there was a man with a tie?
A. That’s correct.
Q. But you would not recognise his face?

A. Sir, that man with the tie came into the office while I was sitting down and I had a better chance to look at his face then also to remember.

Q. So that is how you can say it is John Swan?
A. Yes.

Q. Why weren’t you able to do that in 1995 at the Royal Commission?

A. I don’t know sir.

Q. No explanation for that?
A. No, I can’t give you a reason why” (T209-210).
Gregory Mate’s Evidence

58 Gregory Mate (“Mate”) gave evidence identifying Langton as one of the persons in the gauntlet. He was not able to be sure if he recognised any other person as forming part of the gauntlet. He said of Fish that she, “quite possibly was in the gauntlet” (T700). In cross-examination he put it this way:

“She was in the vicinity of that area. She may have been in the gauntlet or she may not have. Going through the gauntlet was quite fast” (T711).

John Martin’s Evidence

59 Martin was in the truck with the other young men when it pulled up in the garage of the police station. He described hearing the sounds of the assault upon Byatt. Martin gave no evidence of looking through the vents in the truck and seeing anything of the gauntlet before he was removed from the truck. He said:

“When I got out and the door was opened, the people that we were fighting on the street was standing in two parallel lines adjacent to one another, all the way leading into a cell and we were bashed with batons by – well, it was every person that was there” (T809).

60 Martin said that there were a lot of persons with batons in the garage. “There may have been ten, there may have been twenty” (T809). He recognised some of the persons as having been present on Darlinghurst Road during the earlier melee. He was asked who he had recognised:

“I can recognise three of them in court right now, and they are sitting in the back of the room” (T810).

61 Of the three accused Martin said that he was definitely struck by Fish and by Watson. He was “pretty sure” that there was only one female forming part of the lines.

62 Martin gave evidence of seeing both Langton and Fish assault Brown and Stockman in the holding cell. Fish was armed with a baton. After a time Stockman and Brown were removed from the holding cell. Martin said he could hear screaming and thuds following their removal.

63 Martin described an incident in the holding cell in which Haken came in and told the group that if they were ever caught in the Kings Cross area again he would kill them. Martin said that Haken turned his back for a moment and that Langton physically attacked Stockman again. At that point Haken said “that’s enough” (T815). It is to be noted that Brown at trial when describing this incident had Swan as the officer who said “that’s enough”.

Michael Gordon’s Evidence

64 Gordon was one of the young men arrested in Darlinghurst Road that night. He was a naval rating with ambitions of joining the New South Wales Police. During the course of the evening at the police station he was separated from the other young men and released without charge. Prior to this he signed a statement giving an account that the incident in Darlinghurst Road had commenced when Brown initiated an unprovoked assault on the off duty police.

65 At the trial Gordon gave an account in different terms to that set out in his statement. He said that the incident in Darlinghurst Road commenced when Stockman bumped shoulders with another person. Following this Stockman was thrown against the back of a parked tow-truck. A fight then erupted. Brown involved himself in the fight at an early stage by throwing punches. Other members of his group whom Gordon saw involved in the fight were Jason Wright (“Wright”), Byatt, Thompson, Martin and Stockman. Gordon said Swan produced his police badge and told him that they were all police. The only people whom he recalled as “sitting still” were Swan and himself (T491). Fish pointed to Gordon saying, “He’s one of them” (T491). He was taken hold of by a uniformed policemen and put in the back of the truck.

66 Gordon said that he looked out of the back of the truck after they arrived at the police station. He saw the garage roller door open and a group of people walk down the driveway. He recognised all of the persons in this group as having been previously involved in the incident in Darlinghurst Road. There were approximately five of them in the group. Fish was the only woman. Gordon saw Haken walk out from another direction. He was cradling two armfuls of batons. Apart from Fish, the only persons who Gordon was clearly able to recall as forming part of the group who walked down the driveway were Langton and Swan. He recalled that Fish, Swan, and Langton each took a baton.

67 Gordon described Langton, Haken, Fish and Swan as all milling around at the time when Langton directed, “You’ll get out one at a time” (T499). There were other people in addition to these four. Gordon saw the assault upon Byatt as he was removed from the panel van. He was looking through a hole at the back of the truck. He saw striking motions as Byatt walked from the back of the van.

68 Gordon said that when he got out of the truck he moved quickly between the two lines. He did not hold his head up. He said the officers forming the lines each had a baton. He was struck on both sides of his body. He was not able to nominate any of those who were in the lines at the time he passed between them. He estimated that there were six officers involved in the gauntlet. A couple of them were uniformed police.

69 Gordon described an assault on Stockman inside the police station. He said that Stockman was pushed up against a wall and struck a number of times. This assault may have occurred when Stockman was in the cell, but Gordon was not sure on this point. He was not able to say with confidence where the wall was located. He did recall that both Brown and Stockman had been placed in the holding cell that night. They had been singled out and removed from the holding cell. Gordon was also singled out and taken to a small room which had a desk and two chairs. He said that while in that room one of the police officers told him that he would not be charged and that a statement would be made up for him. He said that he had been threatened that if he did not go along with the story set out in the statement he would be assaulted.

70 The statement signed by Gordon was typed by Watson. The circumstances surrounding the taking of the statement from Gordon was the subject of count thirteen against Watson.

71 Gordon was summonsed to give evidence on behalf of the prosecution in the Local Court proceedings against Brown in February 1991. The police prosecutor decided not to call him and he was made available to the defence. He was called in the defence case. In the course of his evidence he said that he had been struck once by the police at the police station that evening. At the trial Gordon objected to giving evidence on this topic. He was granted a certificate pursuant to s 128 of the Evidence Act 1995. He then gave an account that he had not been truthful in the evidence given at the Local Court as to the number of times on which he was struck. At the trial he said that he had been struck a number of times “approximately six or seven” (T534). He said that he had feared repercussions from the police and that it was this fear that had led him to give untruthful evidence before the Local Court. When tested further on this topic he said:

“The only thing I realised on that day was that I was called as a police witness, and all of a sudden I am giving evidence against the police. That’s all I understood on that day” (T549).

72 Gordon agreed that at the Local Court he had not minimised the account he gave of the violence meted out to others by the police that night. He explained this by saying that there was photographic evidence of what had happened to the others and that, at the time of giving his evidence, he thought that if he played down the violence done to him it would be better for him.

73 In cross-examination concerning events which took place in the office surrounding the making of his statement Gordon said:

‘A. Well I have got no real recollection now of anything in particular Ms Fish did so it is hard for me to make a comment.

A. I don’t have any clear recollection now as to exactly what Ms Fish did on the night” (T651).

“Q. Sir you made a reference when you were being asked questions by Mr John Dailly about Ms Fish and the area of the office?
A. Yes.

Trevor Haken’s Evidence

74 Haken gave evidence that he had obtained an indemnity in relation to prosecution for offences associated with the events of this evening. He agreed that during his career as a police officer he had committed perjury on very many occasions.

75 Haken had provided assistance to the Royal Commission. He gave an account to the Royal Commission’s investigators of the assaults committed upon the young men in the garage of the police station. Following the Royal Commission’s examination of this incident, Inspector Moore of the Internal Affairs Branch conducted an investigation that led to the present prosecutions.

76 Haken gave an account that the incident in Darlinghurst Road commenced when two of the young men struck Watson in the face. Fish took hold of Brown and another police officer, Demol, took hold of Stockman. There followed an all-in brawl in which Fish was thrown to the ground by Brown. Watson fell down in Darlinghurst Road and Haken did not recall seeing him again until much later in the morning.

77 Haken said that he returned to the police station with officers Langton, Swan, Firman, Newham, and Bulles. On arrival he collected eight to ten batons. There were some uniformed police present in the garage. Batons were handed out to Langton, Swan, Firman, Bulles, Newham and uniformed police. Haken described the gauntlet as extending from the rear of the truck to the doorway of the holding cell.

78 Haken did not believe there were any female officers in the gauntlet.

79 Haken said that Swan formed part of the gauntlet.

80 It was Haken’s account that Brown and Stockman had been isolated either after they were removed from the truck or shortly after they were placed in the holding cell. He said that both of them had been assaulted, principally by Langton. He described an ongoing series of assaults taking place upon these two young men after they had been removed from the holding cell. He had intervened on one occasion to prevent further assaults on the two by Langton.

81 Haken said that he did not witness any assault upon Stockman or Brown in the holding cell. He said that Fish assaulted both men in the detectives’ offices. He observed her smashing Brown’s head into a desk and doing the same to Stockman.

Analysis of the sufficiency of the evidence – Fish

82 Mr Dailly’s submission was that the inconsistencies in the evidence of Brown, Martin and Gordon were such that, when viewed with other unsatisfactory features of their evidence, this Court would conclude that upon the whole of the evidence it had not been open to the jury to be satisfied beyond reasonable doubt of the guilt of Fish. He placed emphasis upon the following considerations.

83 Brown and Martin both claimed that Watson formed part of the gauntlet. In his written submissions Mr Dailly stated, “The Crown conceded at trial that Watson was never in the garage at the relevant time”.

84 It was not part of the Crown case that Watson was present at the time the prisoners were removed from the truck. Watson was not charged with affray.

85 In the course of his evidence in chief Brown gave an account of being assaulted in the holding cell by Watson. The Crown Prosecutor made this statement in the absence of the jury:

“Your Honour I should place on record there has been evidence given implicating Watson in offences in the garage area in the affray and also in the cell area of the Kings Cross Police Station. It is the case for the Crown the Crown has not presented charges against Watson concerning those incidents. Indeed he was discharged at committal in terms of the events that would come within the area of the affray and we have not elected to file a bill against him as a result” (T97).

“I should indicate to your Honour the Crown will rely effectively on Haken’s evidence to indicate that Watson was not present at this earlier stage of events and would tend to indicate he was upstairs looking after his injuries as I understand it. As Mr Dailly says the Crown is not alleging Watson was present as part of the affray or nearby. All I can say, your Honour, is that we cannot allege that, bearing in mind what occurred during the committal proceeding” (T98).

86 Detective Inspector Moore, the officer in charge of the investigation, was cross-examined by Mr P Dailly, who appeared on behalf of Watson, and agreed with the proposition that inquiries had revealed that Watson was assisted back to the police station by some of the women who had attended the earlier function. Specifically Detective Inspector Moore agreed that his inquiries established that Watson did not return to the police station with Langton.

87 Swan gave evidence that both Demol and Watson had received injuries during the course of the melee on Darlinghurst Road. Demol had been taken from the scene in a police vehicle. Watson was not. He said that he and his wife together with Watson and Brian and May Loomes walked back to the police station after the incident. Haken was not part of this group. Swan said that Watson’s nose and eyes were swollen and that he was groggy. On arrival at the police station Swan said that he took Watson upstairs to a change room. The two had gone into the change room and Watson washed, sat down and had a drink of water. Swan said that it appeared to him that Watson was all right. At this point he left him in the change room and returned to the foyer of the station. He spoke with his wife and then went downstairs. When he got to the bottom of the stairs he saw the police bringing prisoners from the garage into the holding cell. He had not been present in the garage.

88 The appellant’s wife, Judith Swan, gave evidence. Her account was consistent with that of her husband. She walked to the police station with him, Watson, May Loomes and, possibly, Brian Loomes. On arrival she waited in the foyer with May Loomes. Her husband walked behind the counter with Watson saying that he was taking Watson out to the bathroom to clean himself up (T1373).

89 Watson gave evidence that Mrs Swan, Mrs Loomes and Mrs Haken had assisted him to his feet following the assault in Darlinghurst Road. He walked back with them to the police station. On arrival at the station they entered through the front door and he made his way to the change room on the upper level. Inside the change room he went to the basin and washed his face. He sat on a bench for a period of time. He was dirty from his earlier fall and he tried to brush some of the dirt off his clothing. He was not able to put a time on the interval that he spent in the change room. Thereafter he went to the detectives’ office. He was not present in the garage of the police station that evening. When asked whether he recalled Swan being in his company at the point when he returned to the station Watson said, “specifically I can’t say that he was there, no” (T1415). He was not able to remember if anyone had accompanied him to the change room. Watson’s injuries were not such as to have required medical attention.

90 There was no documentary record or other evidence to establish as a fact beyond issue that Watson was not present in the garage area at the time the prisoners were removed from the truck. There were some inconsistencies in the evidence which tended to place him in the change room throughout this time. To this extent Mr Dailly may have somewhat overstated the position in putting the proposition that Brown and Martin were, as a matter of fact, wrong in identifying Watson as being present in the garage. However, the case was conducted upon the basis that Watson was not one of the group in the garage. The reliability of the identification of the officers involved in the gauntlet made by Brown and Martin must be taken to have been adversely affected by the confidence with which each asserted Watson to have formed part of it.

91 None of the witnesses who placed Fish in the garage at the time the prisoners were taken from the truck said that there was more than one woman present. The criticisms of the reliability of the identification made by each of the witnesses, based on the short period of time over which the assaults took place, the limited opportunities for observation, and the mistaken identification of Watson have less application when considering the case of Fish. It was open to the jury to reason that if the witnesses were right in asserting that there was a woman present in the garage and that the woman was Fish.

92 It was put on behalf of the appellants that Brown and Martin had exaggerated their accounts of the events of this evening. Both were said to have minimised the extent of the provocative and wrongful behaviour of their group in Darlinghurst Road and to have overstated the seriousness, and number, of assaults on themselves and on other members of the group at the police station. Challenges of this character are difficult to assess without the advantage of seeing and hearing the evidence.

93 In cross-examination Brown said that he was not able to say on how many occasions he had been punched during the course of the evening. He agreed with the proposition that he had been punched to the face on many occasions. He guessed that he had been punched ten to fifteen times to the face. The medical evidence was said to not support a conclusion that Brown had received so many blows to the face. Dr Rowan-Kelly gave evidence that he attended to Brown at about 10:00 am on 22 July 1990. At the time of giving evidence he had no independent recall of the consultation. He depended on notes, both of his own consultation and of a consultation conducted by a colleague earlier that day at around 7:30 am. Dr Rowan-Kelly examined Brown and observed bruising to the right shoulder, particularly the deltoid area. There was tenderness and bruising over the left acromioclavicular joint. There were a number of marks over Brown’s back, left thigh and the top of his buttocks. Five linear marks were recorded on the back. Two on the left upper back over the shoulder area. These were in a cross-pattern. There was one over the area of the central back. There was a further linear mark on the lower back and another parallel to that, on the top of the buttocks. There was a further mark on the outer aspect of the left thigh. The doctor observed no wounds or bruises on Brown’s hands. Other injuries noted were a small half centimetre laceration in the corner of the left lip, swelling over the central buttock region on the left side, pain evident in the elbow and in the jaw and a small laceration above the left eyebrow. Brown gave a history of being struck in other areas, but the doctor observed no signs of injury in those locations. The history given was of being hit to the face, stomach and having his hair pulled.

94 After reading the transcript of the evidence given by Brown and Dr Rowan-Kelly I do not conclude that Brown must be taken to have deliberately lied as to the extent of the assaults upon him.

95 In written submissions Mr Dailly observed:

“Martin claimed he was bashed by every person (20) in the line. More than twenty forceful and violent strikes; batons, kicks, hits.

Yet only two marks showed on the photos of Martin taken later that day at his request – Ex G – on the arm and the back (and some injury claimed behind the ear that did not show) (T809, 831-2).”

96 In his evidence in chief Martin was asked how many persons there were in the two lines which made up the gauntlet. He replied:

“There may have been ten, there may have been twenty. I didn’t count them as I was getting bashed as I went past them, but there were more than enough to look after one person, like many times more than one person” (T809).

“Q. Do you still maintain as you told this jury earlier ‘I was bashed by every person in that line’?

A. Yes.

Q. That was your evidence on oath and you maintain that?
A. Yes.

A. No, I said that there were a number of people, anywhere between ten and twenty.

97 Martin was shown the photograph, Ex G, which was taken at Brown’s home the day after this incident. He agreed that the photograph showed a mark to his right arm and what appeared to be a welt mark on his back, consistent with a baton blow. Martin pointed to a mark on the back of his ear in the photograph showing the back view. Martin was not sure whether the photographs showed all the marks that came out as the result of the assault. It was put to him that the photographs showed nothing of the order of twenty blows having been rained upon him. He maintained that he had been subject to such an assault, saying, “This was the next day, bruising hadn’t come out yet” (T832).

98 Each of the men removed from the truck who gave evidence at the trial described being struck by officers holding batons who were arranged in two lines. It was not an issue at the trial that assaults of this character had taken place that evening. Without seeing and hearing the evidence it is difficult to accept the submission that Martin should have been rejected upon the basis that he had exaggerated his account. Martin described being assaulted as he made his way through the gauntlet, as best as he could tell, by every person who formed part of it. On his own account he was not able to say whether there had been ten or twenty officers striking him.

99 It was also submitted by Mr Dailly that the evidence of Brown and Martin should be viewed as unreliable because neither was frank in his evidence of the events that gave rise to the melee in Darlinghurst Road. The evidence of Brown was particularly subject to criticism on this account. The evidence as to what led to the incident in Darlinghurst Road was varied. In part this may have reflected that it was a dynamic event and participants may have observed different parts of it. Further, it was open to the jury to accept parts of the evidence Brown and Martin and to reject other parts. They were so directed in unexceptional terms.

100 Mr Dailly pointed to the evidence of Haken who distributed the batons to the officers in the gauntlet:

101 As Mr Dailly observed Haken might not be thought to have been in Fish’s camp. He gave evidence that she assaulted Brown and Stockman in the detectives’ offices.

102 Brown did not refer to any female officer as present in the garage in his first statement.

103 Neither dark headed Matthew Thompson nor Edgerton, both of whom gave evidence at the trial, identified either of the appellants as being present in the garage at the time of the gauntlet.

104 Dark headed Matthew Thompson said that when the truck arrived at the police station he had heard voices echoing outside it. He did not hear or see anyone hit with batons, but when he got out of the truck he was struck with batons as he walked through the lines of police. He was not able to remember how many people were in the gauntlet, he thought around a dozen (T750). He was not able to recall whether the people in the lines were uniformed or not. As far as he knew there were only males in the lines (T751). When asked how long the line extended he responded in this way:

“Oh, God, I can’t – no, see that’s – that’s – I can’t really remember because I was, you know, after being beaten up in the street and sort of knock – I don’t know if I was semi-conscious – I’ve never been unconscious before, I haven’t since, so I don’t know. But I was – my memory was a bit affected by that, so it was – I don’t know. Probably, oh, I wouldn’t be able to tell you. Can’t remember” (T751).

105 Dark headed Matthew Thompson said that neither Brown nor Stockman had been put in the holding cell with him and the other young men.

106 Edgerton said that after the truck arrived in the garage of the police station they were left in it for about forty-five minutes. During this period he looked out of the rear vents of the truck. He saw people coming out with batons. The truck was rocked and obscenities were called out. Gordon was the first person to get out of the truck. He was the next. He said that he had looked straight ahead and had not taken in too much of his surroundings.

107 Edgerton said that after the group had been in the holding cell for about ten minutes a couple of officers came and removed Brown and Stockman from the cell. He did not observe any assault upon either man in the cell.

108 Edgerton recalled seeing Swan on Darlinghurst Road. He saw him later around the cells. He was not able to remember when he had first seen Swan at the police station (T778).

109 Edgerton said that a combination of uniformed and plain-clothes police made up the gauntlet. He was positive that the majority of police with batons were in plain clothes. He had a definite recall of the appellant, Fish, as the officer who came to the holding cell and pointed out Brown and Stockman. He was not able to remember whether he had seen her at any other stage in the police station, including in the garage.

110 Fish did not give evidence at the trial.

111 The evidence given by Fish before the Local Court in February 1991 was in evidence at the trial. On that occasion she gave the following answers in the course of cross-examination:

“Q. Were you present at the police station when the defendant and the others were taken out of the police vehicle?

A. I arrived yes during …

Q. As they were being taken out?
A. Yes.

Q. How were they taken out?
A. Physically.

A. As I walked down the stairs they were being taken out one at a time.

Q. Did you see the defendant assaulted?
A. Did I see – I beg your pardon?

112 The transcript of the evidence given by Fish in the Local Court was tendered in support of count six which charged a further count of perjury (the subject of a directed verdict of acquittal). Section 60 of the Evidence Act 1995 operated to make the representations contained in it admissible to prove the existence of the facts that Fish intended to assert thereby. Her answers were ambiguous. They were consistent with a finding that she arrived at the scene outside the holding cell by walking down the internal staircase. From this position she would not have been able to see the rear of the truck in the garage. Although she did claim to have seen the prisoners being moved. There was an issue as to whether the gauntlet extended to the door of the holding cell or whether it stopped at the door of the garage.

113 On Fish’s behalf it was contended that from an early stage, and before she might have appreciated the significance of distancing herself from events occurring in the garage, she had given an account which placed her in the stairwell and not the garage. Broadly, that account was consistent with Haken’s evidence in that he did not put her as one of the police forming part of the gauntlet (although Haken put himself as inside the lobby area between the holding cell and the garage door and thus not in a position to see the lines of police at the rear of the truck). Evidence was led from six of the young men who had been present in the truck. Of those only three identified Fish as being in the garage. One, Mate, thought it likely that she had been present in the garage, but was not able to say so with any degree of certainty. One, Thompson, believed that he had not seen any woman forming part of the gauntlet. One, Edgerton, had very poor recall of the make-up of the gauntlet. Of the three witnesses on whom the Crown relied to establish beyond reasonable doubt Fish’s presence in the garage, two had wrongly identified Watson as being in the gauntlet and the third, Gordon, admitted that he had given false evidence before the Local Court concerning the number of blows struck to him during the course of this incident.

114 The evidence the subject the count upon which the appellant was convicted was capable of being viewed as a statement by her that she was present at the time the police lined up on either side and struck the persons who were brought out of the truck since she said of that allegation, “That’s untrue”. However she went on to qualify that statement with the words, “I didn’t see that”. The latter was said to be conformable with the account given in February 1991 that she had not been present in the garage and in a position to see the prisoners as they were removed from the truck.

115 Each of the matters urged upon us by Mr Dailly was advanced in the course of his closing address to the jury. No complaint is made concerning the adequacy of the directions given by the trial judge as to fact-finding, the assessment of witnesses, nor to the dangers of evidence of identification. Each of Brown, Martin and Gordon were unshaken in their account in the case of the first two that a female had formed part of the line and, in the case of Gordon, that he saw Fish walking down the driveway into the garage and collecting a baton.

116 The advantage enjoyed by the jury in this case was a very real one. Mr Dailly was critical of the evidence of Martin upon the basis that Martin was an angry man with what he invited the jury to consider was, “a huge problem even now with bias against these accused” (T1640). Mr Dailly commenced his cross-examination of Martin with these questions:

“Q. Mr Martin, you appear still to have a great deal of anger in relation to this matter. Would that be a fair observation?

A. No.

Q. Not angry at all with them?
A. No, I’m over that. I am over that anger.

HIS HONOUR: Over that anger I thought he said. Did you say hang-up or anger?

A. Anger.

J DAILLY: Q You are over that anger?
A. Yes.

A. No.

117 A reading of the transcript of Martin’s evidence suggests that he made a number of concessions and that he did not seek paint himself in a favourable light at all times. He agreed that he was a person quick to take anger and to take offence. He agreed that he had observed a large brawl in Darlinghurst Road in which Wright, who was one of the members of his group, kicked someone in the face. He acknowledged that the kick was a cowardly one delivered to a person who was obviously out and finished. Martin said that he had seen Stockman and others from his group throwing punches. He said that he had not become involved in the fight, but that he had been, “going to” (T847). He said he had seen Langton hit his best friend, Thompson. When asked if that had triggered him to become involved in the fight he responded:

“A. I would have loved to have. I would have loved to have got some revenge yes.

118 The challenge to the acceptance of Martin’s evidence at trial was strongly advanced upon an assessment of his demeanour.

119 There was evidence from more than one witness upon which the jury might have found that Fish was present in the garage at the time the prisoners were made to run the gauntlet. This was a case in which it is necessary to give full weight to the advantage enjoyed by the jury in assessing the demeanour of the witnesses. After reading the whole of the transcript of the evidence of the witnesses who were in the truck, together with the transcript of the evidence of Haken, Swan, Judith Swan, Watson, Dr Rowan-Kelly and Detective Inspector Moore, I am not persuaded the evidence led in the Crown case discloses discrepancies, inadequacies or otherwise lacks probative force such that this Court should set aside the verdict based upon it. In arriving at this conclusion I have taken into account the verdicts of acquittal. I shall return to this issue.

Analysis of the sufficiency of the evidence – Swan

120 I turn now to the separate considerations raised in the appeal of Swan. Brown, Martin, Gordon and Haken each gave evidence that Swan was in the garage when the prisoners were removed from the truck. The criticisms of Brown and Martin included the matters that I have already discussed.

121 Brown’s identification of Swan was based upon his recollection that Swan was wearing a tie. Brown was the only person to give an account that Swan was wearing a tie. Swan and his wife, Judith, gave evidence that he was wearing a casual open-necked green shirt with white stripes. The buttons were torn from the shirt during the melee in Darlinghurst Road. Swan recorded the damage to his shirt in a statement made on 24 July 1990 prior to any suggestion being made that he had been wearing a tie that night.

122 It was not put to Swan at the Local Court or at the District Court in the proceedings against Brown that he had taken part in the gauntlet. This was said to be some indication that at the time of those two hearings Brown’s recall did not include Swan as among those in the lines of police in the garage. In this regard it is to be observed that no person purported to recall being struck by Swan during the gauntlet. This may make the failure of Brown’s legal representative to put, in terms, an allegation that Swan formed part of the gauntlet less noteworthy.

123 Brown did not recall seeing Swan in Darlinghurst Road. Again, it was put that this made any purported identification of Swan (as one of those persons present in the garage) less reliable.

124 Brown had difficulty in evidence on an earlier occasion in distinguishing the roles played by Haken and Swan that night. This material is set out in paragraphs 54 & 55 above.

125 Gordon said that he was clearly able to recall that Swan was one of the persons who had walked down the driveway into the police station. He also said that Swan was one of the persons to take a baton. Gordon said that he had seen the assault upon Byatt through the vent at the rear of the truck. He described a group milling around Byatt including Langton, Fish, Haken and Swan. Gordon, unlike Brown, was familiar with Swan, the two having spoken earlier that night in Darlinghurst Road.

126 Haken said that he had walked back to the police station in company with Langton, Swan, and Firman, Newham and Bulles. He said Swan was present when he handed batons out and that Swan formed part of the gauntlet.

127 In Mr Dailly’s submission the jury acting reasonably could have placed no weight on the evidence of Haken having regard to his admissions of a career as a perjurer. Gordon, had admitted to perjury when giving evidence before the Local Court in February 1991. The identification of Swan made by Brown and Martin must be taken to be suspect when viewed against each man’s confident recognition of Watson as present in the garage. Mr Dailly contended that this Court would conclude that the jury ought to have entertained a doubt that the Crown had established that Swan was present in the garage at the time the prisoners were removed from the truck. This submission needs to be evaluated against an assessment of Swan’s evidence in the earlier proceedings.

128 On 7 February 1991 in evidence at the Local Court Swan was asked these questions in cross-examination:

“Q. Did you attend the Kings Cross Police Station shortly thereafter?

Q. How were they removed from the police vehicle, en masse or one at a time?

Q. I’m suggesting in relation to this defendant that when he was taken from the back of the police vehicle he was hit with a baton by Detective Watson?
A. No he certainly wasn’t his with a baton and Detective Watson wasn’t in the vicinity when they were removed from the truck.

129 On the 8 September 1993 in the District Court Swan was asked these questions in cross-examination:

“Q. You were present at the Kings Cross Police Station when the appellant and the others were removed from the police vehicle?

A. No, that’s not correct.

A. No he wasn’t, no.

130 As I have noted, Swan’s evidence at trial was that he had entered the police station through the front door. After rendering assistance to Watson he had made his way to the detectives’ office walking down the internal stairs. He denied being present in the garage at any time while the prisoners were being removed from the truck. He sought to explain the evidence given in the earlier proceedings against Brown in this way:

“Q. Is there any reason why you were asked the question ‘Were you present when the defendant and others were taken from the police vehicle’ you didn’t respond ‘No, I wasn’t’?

A. I was present at Kings Cross Police Station.

A. Yeah.

A. No.

A. Well, I wasn’t there to see that, no.

‘See what I am suggesting is that as each person was removed from the back of the police vehicle they were assaulted by a number of police’.

A. What?

A. No.

131 It was necessary for the Crown to prove beyond reasonable doubt in support of count ten that Swan’s statement made on 7 February 1991 at the Downing Centre Local Court to the effect that it was not correct that as each person was removed from the back of the police vehicle they were assaulted by a number of police was false to his knowledge at the time he gave that answer. In the way the trial was conducted there was no challenge to the fact that there had been a gauntlet formation and that, at least, a number of prisoners removed from the truck had been struck by a number of police. It was necessary to establish beyond reasonable doubt that Swan was present and saw the removal of the prisoners from the truck.

132 In support of count eleven it was necessary for the Crown to prove beyond reasonable doubt that Swan’s statement to the effect that it was not correct that as each person emerged from the back of the police truck he was hit a number of times with either punches or baton blows was false to his knowledge at the time he gave it in evidence in the District Court on 8 September 1993.

133 It was open to the jury to consider that in 1991 and in 1993 in the proceedings against Brown, Swan’s evidence acknowledged that he was present in the garage at the time the prisoners were removed from the truck. It was open to the jury to reject his evidence at the trial which placed him out of sight of the subject events. The suggested shortcomings in the evidence of identification (on which topic the jury received a direction which has not been the subject of complaint) of Swan as having been in the garage might be thought to have been evaluated against a consideration of his own account given in the earlier proceedings. I am not persuaded that Swan has made good his challenge that the verdicts of the jury ought be set aside it not having been reasonably open to them to conclude that he was present in the garage at the time the prisoners were removed from the truck. In coming to this conclusion I have taken into account the verdicts of acquittal. I will turn to those now.

Inconsistent Verdicts

134 It is to be noted that the jury were not able to agree upon the counts that charged each of the appellants with affray. Following their retirement the jury asked a number of questions including “If a police officer is present and knows of the affray occurring and does not take action to stop the affray does this constitute encouragement?” (23/10/01 SU 180). The trial judge directed that it would not.

135 The jury were not able to agree upon a finding that either of the appellants took part in the affray. That the jury was not able to agree upon the affray counts and yet convicted on counts of perjury in respect of which it was necessary to establish the appellants’ presence in the garage and knowledge that the prisoners had been assaulted as they were removed from the truck by officers striking them with batons could not be said to manifest any inconsistency.

136 The jury were directed in conventional terms to consider each count separately. The Crown faced particular difficulties in establishing its case in support of the counts which charged assaults on individuals. In the course of the summing up the trial judge directed the jury that where the Crown relied upon an acceptance of the evidence of a single witness in support of a count, the evidence of that witness must be scrutinised with great care before a verdict of guilty may be returned (SU 118). This direction was relevant to counts nine (assault by Swan on Brown), twelve (assault by Watson on Brown) and thirteen (attempt to pervert the course of justice by Watson) upon which verdicts of acquittal were returned.

137 The Crown case on count thirteen depended upon the evidence of Gordon. It was Gordon’s account that he had been shown a photograph depicting a person who had been severely injured and threatened that if he did sign a statement he would be assaulted. In cross examination Gordon accepted that Watson may not have been present when he was shown the photograph or threatened (T 657). In the course of the summing up when dealing with this count the trial judge directed:

“The issue was whether it was forced, whether it was a concoction as the Crown alleges. If you are not satisfied that Watson participated in this forcing, if you find there was a forcing at all then that is the end of it” (SU 132).

138 The trial judge commented in relation to the assaults charged in counts two, three and four:

“[J]ust sorting out which assault is which, as I mentioned and as the indictment mentioned, count two alleges that Fish assaulted Jason Stockman in the cell. Count three alleges that she assaulted Cory Brown in the cell. You will remember there that in count two Jason Stockman himself does not say that he was in the cell, his memory, he was taken straight to the detectives’ office and did not go into the cell. Cory Brown says that this is not correct and that he witnessed the assault by Fish on Jason Stockman in the cell. Other witnesses give different accounts. Mate says there was such an assault on Jason Stockman. Martin also says there was an assault on Jason Stockman and Cory Brown in the cell. Gordon says also there was an assault Jason Stockman and Cory Brown near the cell, not in it. Edgerton says there is no assault in the cell at all. Dark-haired Matthew Thompson says there is no assault in the cell. The Crown presses the point that honest witnesses can be mistaken and, notwithstanding the divergence of the witnesses, there is ample evidence upon which you could convict.

Mr John Dailly submits that, because of the lack of uniformity of the evidence about these three alleged incidents how could you convict Fish of thee assaults. In other words, you should – indeed he puts to you, you must have a reasonable doubt in each case. As always these are matters of fact for you and no-one else (SU 121).”

139 The evidence was open to the view that Stockman had been severely assaulted at the police station that night and that this may have affected his recall of the events. Notwithstanding such a consideration, in the light his evidence he had not been in the holding cell, the jury might have considered that the Crown had failed to prove beyond reasonable doubt the assault charged in count two.

140 Mate, while describing an assault upon Stockman committed by Langton and Fish in the holding cell, gave no evidence of an assault on Brown in that cell. Gordon gave evidence of assaults on both Brown and Stockman but was not confident of the location of these assaults. He put the assault on Brown as taking place against a wall outside the holding cell (T 506).

141 The jury may have been unwilling to conclude that the Crown had proved the assault by Fish on Brown beyond reasonable doubt, having regard to the differing accounts as to assaults in the holding cell.

142 To my mind it does not flow from the verdicts of acquittal on counts two and three that the jury must be taken to have rejected the evidence of Brown and Martin as not that of credible witnesses. The Crown was required to prove that the assaults occurred in the way it particularised its case. In respect of these counts (and the counts which were dependent upon the evidence of a single witness) the verdicts reflect that the jury entertained a doubt as to proof of one or more of the ingredients of the offence as particularised. Thus, with respect to count three the jury may have been disposed to accept Brown’s evidence that he was assaulted but reasoned that, in the light of Gordon’s account, the Crown had failed to exclude the reasonable possibility that the assault took place outside the holding cell. This is not to say that it was not open to the jury acting reasonably to be satisfied beyond reasonable doubt of the appellants’ guilt of the perjury charges upon an acceptance of the evidence of Brown and Martin supported as it was by evidence from other sources.

Sentence appeal - Fish

143 Mr Dailly contended that the sentence of twenty months imprisonment, with a non-parole period of twelve months, imposed on Fish was excessive. He acknowledged that the crime of perjury is one which will attract a custodial sentence in the absence of exceptional circumstances.

144 In Mr Dailly’s submission there were features of Fish’s subjective circumstances which were exceptional such as to make a sentence of non full-time custody appropriate in this case. The matters instanced include that Fish, now aged thirty-seven years, is a first offender with an excellent work record. She joined the New South Wales Police at the age of nineteen years. She had served for eleven years at the date of her resignation. Her service record was unblemished and included the award of two commendations for good police work.

145 The appellant’s home life had been a difficult one. She married Langton in 1990. They separated in 1994 and were divorced in 1999. There was a history of violence throughout the marriage. The evidence before the sentencing judge pointed to Langton as a violent alcoholic. On one occasion Fish suffered a broken nose during an incident of domestic violence. On another occasion Langton cut her lip necessitating repair with a number of sutures. The appellant worked hard throughout the marriage. At the time of their separation she had been left with substantial bills generated by Langton. To her credit the appellant borrowed money, paid the bills and, subsequently, repaid the borrowings.

146 In 1997 the appellant met her present husband. They married in 1999. Shortly after their marriage her husband was assaulted and had his ear bitten off. As a result of this assault he suffered from depression and a loss of confidence which led to him being unwilling to leave the home. There was considerable strain placed on the marriage as the result of the husband’s difficulties and the pending criminal proceedings against the appellant. The marriage broke down but there remained an attachment between the two. The husband attended the court case on most days. There was hope that the marriage might be salvaged.

147 Another factor in the break-down of her marriage was the appellant’s depression. At the time of the Royal Commission when the Kings Cross incident was first exposed, the appellant suffered from what was described as a mental breakdown. She lived under the spectre of criminal charges between 1995 and March 2000, when she was served with a summons in respect of the present charges. A report from Dr Joseph Gretch attested to the appellant’s depression brought about by these events.

148 Following her resignation from the New South Wales Police the appellant obtained employment with a financial institution, Tower Australia. The Managing Director of Tower Australia, Mr Moon, gave evidence at the sentence hearing. He attested to the appellant as being a highly regarded and valuable employee who had risen from a relatively lowly position to a managerial role. Mr Moon expressed his willingness to employ the appellant upon her release.

149 As a former police officer it was noted that the appellant would serve her sentence of imprisonment in conditions of protection.

150 Considerable emphasis was placed on the delay between 1995, when the incident had come to light, and March 2000, when the charges were laid.

151 In Mr Dailly’s submission, when one takes into account the penalties that have been imposed in respect of similar offences the sentence is manifestly excessive. He referred us to a number of cases in support of this submission.

152 In R v Aristodemou (unreported, NSWCCA, 30 June 1994) the applicant sought leave to appeal against a fixed term of two months imprisonment following his pleas of guilty to two counts of false swearing, contrary to s 87 of the Independent Commission Against Corruption Act 1988. The maximum penalty provided for that offence was imprisonment for five years and/or a fine of up to $2,000.00. Badgery-Parker J (in a judgment with which Carruthers and Finlay JJ agreed) observed:

“Any person who commits an offence of perjury or false swearing in the course of judicial proceedings or in proceedings such as a Royal Commission or an ICAC Inquiry should do so in the clear understanding that if his offence is detected he will go to jail except in very particular circumstances.”

153 Mr Dailly also referred us to Regina v Bulliman (unreported, NSWCCA 25 February 1993) in which the applicant sought leave to appeal against the severity of concurrent sentences of twelve months (comprising a minimum term of nine months and an additional term of three months) imposed upon him following pleas of guilty to two counts of making false statements contrary to the provisions of s 330 of the Crimes Act 1900. The maximum penalty for an offence under that section is one of five years imprisonment. Abadee J (in a judgment with which Gleeson CJ and Hunt CJ at CL agreed) observed:

“False evidence strikes at the whole basis of the administration of justice and indeed, it undermines the whole basis of it. Justice inevitably suffers, whatever be the motive for the making of false statements on oath and whatever be the circumstances in which the offence of offences are committed.

The purpose of an appropriate sentence in this class of case is not only to punish the offender, but to deter others and make plain that the commission of this type of offence will normally be visited with serious punishment. General deterrence is the point of importance to be particularly emphasised in this type of case.

Having regard to the objective features of the case and to the subjective features, it seems to me that the sentence imposed by his Honour was one well within the scope of his Honour’s sentencing discretion.

154 In Regina v Salesi Fifita (unreported, NSWCCA, 26 November 1992) the applicant sought leave to appeal against the severity of a sentence imposed on him following his plea of guilty to a charge of perjury. The applicant was sentenced to imprisonment for a term of sixteen months, comprising a minimum term of twelve months and an additional term of four months. Gleeson CJ (in a judgment with which Kirby P and Studdert J agreed) noted that the sentencing judge had been faced by a difficult task having regard to the relative paucity of precedent as to the appropriate sentence for the offence of perjury.

155 There were some unusual features in Salesi Fifita. The applicant gave evidence in support of an application for workers’ compensation. During the course of his cross-examination he denied that he played tennis. Later, in the course of his evidence, he admitted that assertion to have been false. Nothing was done about his admission of perjury for two years thereafter. The delay was unexplained. The applicant was a person with no prior criminal history and of otherwise good character. In this context Gleeson CJ observed:

“This Court has had access to the rather limited statistics appearing on the sentencing information system kept by the Judicial Commission, and those statistics certainly do not bear out the appropriateness of a sentence of twelve months imprisonment for perjury of this nature committed by a first offender who pleaded guilty.”

156 In R v Yilmaz (unreported, NSWCCA, 4 March 1991) the applicant sought leave to appeal against the severity of a sentence of nine months periodic detention imposed on him following his plea of guilty to a charge of giving false evidence touching a matter material in the inquiry then being conducted by the Worker’s Compensation Commission by virtue of the Worker’s Compensation Act. Smart J (in a judgment with which Gleeson CJ and Lee CJ at CL agreed) noted that the matter upon which the applicant gave the evidence in question was not vital to the success or failure of the application. In the light of the evidence concerning the applicant’s personal circumstances, and the lapse of time since the offence occurred, the Court allowed the appeal and re-sentenced the applicant placing him on a recognizance to be of good behaviour for twelve months and imposing a fine on him of $1,000.00.

157 This case is to be distinguished from those to which we were referred because the appellant was a police officer at the time of the offence. In this respect I take note of the observations of Simpson J (in a judgment with which Newman J and Studdert J agreed) in Regina v Chapman (unreported, NSWCCA, 21 May 1998):

“Those concerned in the administration of the law must be taken to appreciate the supreme importance of truthful evidence being given in judicial proceedings.”

“He must be taken to have known, better than most, how important the curial procedure is, and with what respect it must be treated.”

158 In the present case the sentencing judge took into account each of the matters upon which Mr Dailly relied as constituting exceptional circumstances. His Honour approached the matter upon the basis that the applicant was held in high regard by her friends, family and associates. He noted that Mr Moon had spoken of her in glowing terms. His Honour reviewed the appellant’s police career in some detail, noting the commendations and her good character. He took into account the material as to her troubled domestic life, observing:

“All in all, it has not been a happy life for her since meeting Langton and afterwards and indeed, for much of the period during her police service. In the words of Troy Wright, the author of her pre-sentence report:

‘Ms Fish is a highly respected woman amongst her family and colleagues, drawing unanimous praise for her strength of character’.

This statement is borne out by the evidence” (ROS15).

159 The sentencing judge adverted to the lengthy delay in prosecuting the proceedings. This consideration led him to reduce the sentence which he would otherwise have imposed by four months.

160 The focus of the sentence appeal was directed to the specification of the non-parole period. It is apparent from his Honour’s remarks that he was invited to take into account that the appellant was:

“not trying to protect herself but was trying, in part, ‘to protect her mates’ and in part, ‘to protect Langton’, who by the time she gave evidence had become her husband.”

His Honour rejected the submission that these considerations should operate in mitigation of sentence. In so doing he observed:

“It is at least as serious for police to commit perjury to cover up for and protect their mates as it is for them to do so to protect themselves. To protect one’s mates in battle, as the prisoner Swan undoubtedly did, bravely and selflessly, is noble. To do so in these circumstances is ignoble and is to be condemned. It is this type of behaviour, that is, lying on oath to save your mates, which in part is the genesis of the problems which existed in the New South Wales Police Force and undoubtedly still exists today. It is this so called police culture which in part has generated these wrongdoings as manifested in the instant and other cases, which calls for deterrent sentences. Police should not be allowed to think that perjury is a mere peccadillo and that it is laudable, in the name of loyalty, to lie on oath, or indeed otherwise, in that name, or for the sake of solidarity. Any such conclusion is based on a false premise” (ROS 6-7).

161 His Honour appears to have rejected the submission that the appellant had committed the offence in order to protect her husband for the same reasons that he, rightly, rejected the submission that lying on oath in order to protect one’s mates might sound in mitigation.

162 At the time of the commission of this offence the appellant was married to Langton. He was then a serving police officer. The Crown accepted that Langton played a central role in terms of the misconduct of the police that night. Langton pleaded guilty to two counts of perjury arising out of this incident and to charges of assault and affray. He was sentenced in respect of each count of perjury to a term of two years imprisonment. Those terms are to be served consecutively. In each case a non-parole period of eighteen months was specified.

163 I am persuaded that it was relevant to the question of sentence to take into account the circumstance that the appellant’s offence took place in the context of an abusive marital relationship. This was not simply a matter of a police officer lying in court to protect fellow officers because of a misguided sense of loyalty. The appellant’s case in this respect possessed exceptional features. The reality of her situation was that had she given truthful evidence in the District Court proceedings against Brown she would not only have exposed her husband to liability for his criminal offences but almost certainly she would have been subject to serious physical violence at his hands. These matters raise considerations quite distinct from the need for courts to impose deterrent sentences in cases where police officers lie in order to protect their colleagues. In treating the two submissions as though they raised the same issue I consider that the sentencing judge erred.

164 In the light of my view that error has been identified it is necessary to consider whether some lesser sentence is warranted in law. In so doing I take into account the affidavit of James Hall, Solicitor, sworn on 21 May 2002 to which was annexed a report by Margaret Wiseman, Catholic Chaplain, of the Chaplaincy Services at the Mulawa Correctional Centre.

165 Chaplain Wiseman reports that because of the appellant’s background she had been placed in strict seclusion from other inmates. The appellant’s protection was described as having been a constant safety issue since her arrival. The appellant was described as exhibiting qualities of warmth, compassion and a caring attitude to one fellow inmate who is also the subject of protection. Generally Chaplain Wiseman attested to the fact that other chaplains and many officers had commented that the appellant is a good person and a model inmate.

166 Giving appropriate weight to the fact that the appellant gave perjured evidence as a police officer I reject the submission that a sentence of non full-time custody might properly have been imposed. I reject the submission that the sentence of twenty months was manifestly excessive. In the light of the need for sentences for offences of this character to reflect considerations of general deterrence I consider that a lesser sentence than that imposed in the District Court not to be warranted in law. Like the sentencing judge I am persuaded that there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 these include that the sentence will be served on protection and that the appellant is a first offender. Significantly I find that there are special circumstances justifying the imposition of a non-parole period considerably less than three quarters of the sentence by reason of the matters to which I have referred to above relating to the appellant’s domestic circumstances at the time of the commission of the offence. I would propose that a non-parole period of six months be specified.

Sentence appeal – Swan

167 Two grounds were argued in support of Swan’s application for leave to appeal against the severity of the sentences imposed upon him. It was contended that there were exceptional circumstances which justified the imposition of a non-custodial sentence and, alternatively, that the circumstances of the two perjury offences did not call for the imposition of consecutive sentences. Mr Dailly relied upon the same cases as I have referred to in dealing with the appeal of Fish.

168 The appellant presented a strong subjective case before the sentencing judge. He was a married man of fifty-two years and the father of two children. He had an excellent work record over a period of thirty-five years. He had no criminal convictions. He had been called up for National Service in the Army at the age of nineteen and served in Vietnam throughout 1971. He was honourably discharged.

169 The appellant joined the New South Wales Police Service at the age of twenty-four and resigned in December 1995 after twenty-one years service. He had received commendations for his police work on several occasions during his career.

170 Dr Robertson, a psychiatrist, gave evidence that the appellant suffers from post-traumatic stress disorder dating back to his time as a soldier in Vietnam. In Dr Robertson’s view imprisonment was likely to have a significant and harmful effect on the appellant’s mental condition. He considered him to be a significant risk of suicide.

171 Greg Laird gave evidence that he had served in Vietnam with the appellant. He attested to the appellant’s bravery and loyalty.

172 The appellant suffers ischaemic heart disease. He has undergone two heart operations including a triple by-pass in 1999.

173 There was a substantial body of evidence attesting to the appellant’s community work in Port Macquarie where he and his wife have lived since 1995. He has been an active member both of the RSL and Legacy.

174 As a former police officer the appellant will serve the whole of sentence in conditions of protection.

175 The sentencing judge accepted the evidence led on the appellant’s behalf. He took into account all of the matters to which Mr Dailly referred us including that the sentence would be served in conditions of protection. His Honour discounted the sentence to take account of the delay in bringing the proceedings and the associated stress to which the appellant had been subject.

176 His Honour reviewed the evidence concerning the appellant’s health and took into account the principles enunciated in R v L (unreported, NSWCCA, 17 June 1996). It was not submitted that his Honour erred in the approach that he took in this respect.

177 The sentencing judge placed emphasis on deterrence taking into account that the appellant was a police officer at the time he committed the offence.

178 I reject the submission that, in the light of the strong subjective case advanced by the appellant, the sentencing judge erred in imposing sentences of full-time custody. I consider that this case did not present the sort of exceptional features that would justify a sentence other than one of full-time custody.

179 The principal focus of Mr Dailly’s challenge was to the structure of the sentences. The sentences were directed to be served consecutively. In approaching the matter in this way, the sentencing judge rejected the submission that the two offences arose out of the same set of circumstances and might be dealt with by the imposition of concurrent sentences or sentences which were partly concurrent. His Honour held that the two offences were distinct and discrete instances of perjury. His Honour observed that on each occasion the appellant made a conscious decision to permit perjury.

180 The offences were separated by a substantial interval of some two and a half years. However, they were linked in that they arose out of the same set of circumstances. I am persuaded that the sentencing judge erred in determining to make the two sentences wholly consecutive. In the result I am persuaded that the overall sentence imposed in respect of the two offences is excessive.

181 The Court received an affidavit sworn by the appellant’s solicitor, James Hall, which sets out material concerning the appellant’s treatment while in custody. On the appellant’s arrival at the Cooma Correctional Centre he was threatened by an inmate who believed him to have been responsible for his conviction and imprisonment. Generally, it appears that the appellant has been threatened on a number of occasions because of his background as a police officer. In the six months since the appellant was taken into custody he has not been seen by a doctor, psychiatrist or psychologist despite the recommendations by the sentencing judge in this respect.

182 Taking into account the additional material disclosed in the affidavit of Mr Hall I am of the view that the sentence of twenty months with a non-parole period of twelve months remains in each case an appropriate one and that in neither case is a lesser sentence warranted in law. However, having regard to considerations of totality in sentencing against a background that the two offences arose out of the same set of circumstances I consider that it is appropriate to provide for a substantial measure of concurrence.

183 For these reasons I propose that the appellant be granted leave to appeal against the severity of the sentences imposed upon him. I would allow the appeal and confirm the sentences imposed in the District Court but vary the order made by the sentencing judge such that the sentence in respect of the second conviction commences two months after the date of the commencement of the sentence imposed on the first conviction.

The Orders that I propose are as follows:

In the appeal of Christine Gay Fish

1. Dismiss the appeal against conviction;

2. Grant leave to appeal against the severity of sentence;

3. Allow the appeal against sentence;

4. Confirm the sentence imposed in the District Court of twenty months imprisonment to date from 17 December 2001 and to expire on 16 August 2003 in lieu of the non-parole period specified in the District Court specify a non-parole period of six months to expire on 16 June 2002. Direct the appellant’s release on parole at the end of the non-parole period.

In the appeal of John Gordon Swan

1. Dismiss the appeal against conviction;

2. Grant leave to appeal against the severity of sentence;

3. Allow the appeal against sentence;

4. Confirm the sentence imposed in the District Court in respect of the first conviction of twenty months imprisonment to date from 17 December 2001 and to expire on 16 August 2003 with a non-parole period of twelve months expiring on 16 December 2002. Confirm the sentence imposed with respect to the second conviction of twenty months imprisonment but vary the order made in the District Court such that the second sentence commences on 17 February 2002 and expires on 16 October 2003 and specify a non-parole period of twelve months to expire on 16 February 2003 and direct the appellant’s release on parole at the end of the non-parole period.

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Citations

Regina v Christine Gay Fish and John Gordon Swan [2002] NSWCCA 196

Most Recent Citation

R v Langton [2002] NSWCCA 382

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Palmer v Mohareb [2019] NSWSC 975

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Cases Cited

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Statutory Material Cited

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R v Markuleski [2001] NSWCCA 290

M v the Queen [1994] HCA 63

CITATION:	Regina v Christine Gay FISH and John Gordon SWAN [2002] NSWCCA 196
FILE NUMBER(S):	CCA 60906/01; 60907/01
HEARING DATE(S):	24/5/02
JUDGMENT DATE:	14 June 2002
PARTIES :	Regina Christine Gay FISH (Appellant) John Gordon SWAN (Appellant)
JUDGMENT OF:	Ipp AJA at 1; Dunford J at 2; Bell J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0206; 01/11/0207
LOWER COURT JUDICIAL OFFICER :	Stewart DCJ

COUNSEL :	P J Power (Crown) J Dailly SC (Appellants)
SOLICITORS:	S E O'Connor James A Hall (Appellants)
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Criminal Procedure Act 1986 Evidence Act 1995 Independent Commission Against Corruption Act 1988
CASES CITED:	M v The Queen (1994) 181 CLR 487 R v Aristodemou (unreported, NSWCCA, 30 June 1994) R v Bird [1891] Criminal Law Cases 387 R v L (unreported, NSWCCA, 17 June 1996) R v Linehan [1921] VLR 582 R v Markuleski [2001] NSWCCA 290 R v Yilmaz (unreported, NSWCCA, 4 March 1991) Regina v Bulliman (unreported, NSWCCA 25 February 1993) Regina v Chapman (unreported, NSWCCA, 21 May 1998) Regina v Salesi Fifita (unreported, NSWCCA, 26 November 1992) Regina v Traino (1987) 27 A Crim R 271
DECISION:	See paragraph 183 for orders