Rodgers v The State of Western Australia

[2023] WASCA 52

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   RODGERS -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 52

CORAM:   BUSS P

MITCHELL JA

LIVESEY AJA

HEARD:   10 OCTOBER 2022

DELIVERED          :   12 APRIL 2023

FILE NO/S:   CACR 148 of 2021

BETWEEN:   GARY MARTIN RODGERS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

FILE NO/S:   CACR 149 of 2021

BETWEEN:   GARY MARTIN RODGERS

Appellant

AND

THE STATE OF WESTERN AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   SWEENEY DCJ

File Number            :   IND 1987 of 2019

Catchwords:

Criminal law - Conspiracy to pervert the course of justice - Whether verdict of guilty was unreasonable or unsupported by the evidence - Where case left to the jury on the basis that the State alleged that the appellant entered into an agreement to threaten, cajole and intimidate a victim of violent offending to give a false statement exculpating the perpetrators of the violent offences - Where evidence could establish an agreement to procure a false statement from the victim but not that the appellant agreed that the victim would be threatened, cajoled and intimidated - Whether it is open to the court to uphold the conviction on a basis of an agreement to pervert the course of justice which is substantially different from the agreement alleged by the prosecution at trial

Legislation:

Criminal Code (WA), s 135

Result:

CACR 149 of 2021: Conviction Appeal
Extension of time to appeal granted
Leave to appeal granted
Appeal allowed
Judgment of conviction set aside
Judgment of acquittal entered

CACR 148 of 2021: Sentence Appeal
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

CACR 148 of 2021

Counsel:

Appellant	:	In person
Respondent	:	G N Beggs

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

CACR 149 of 2021

Counsel:

Appellant	:	In person
Respondent	:	G N Beggs

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Agius v The Queen [2011] NSWCCA 119; (2011) 80 NSWLR 486

Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

Bowden v The State of Western Australia [2013] WASCA 118; (2013) 45 WAR 168

Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1

Churchill v Walton [1967] 2 AC 224

Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728

Director of Public Prosecutions v Doot [1973] AC 807

Edwards v R (1993) 178 CLR 193

Ex parte Coffey; Re Evans [1971] 1 NSWLR 434

Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779

GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698

Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317

Gibbs v The State of Western Australia [2018] WASCA 68

Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Librizzi v The State of Western Australia [2006] WASCA 237; (2006) 33 WAR 104

Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Marinovich v The Queen (1990) 46 A Crim R 282

Masters v The Queen (1992) 26 NSWLR 450

Meissner v The Queen (1995) 184 CLR 132

Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454

Palumbo v The State of Western Australia [2014] WASCA 55; (2014) 239 A Crim R 297

Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494

Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308

R v Caldwell [2009] VSCA 41; (2009) 22 VR 93

R v Cotroni (1979) 45 CCC (2d) 1

R v Cox [No 4] [2006] VSC 60; (2006) 165 A Crim R 345

R v Dookheea [2017] HCA 36; (2017) 262 CLR 402

R v Gagnon (1956) 115 CCC 361

R v Gemmell [1985] 2 NZLR 740

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

R v Lacey (1982) 29 SASR 525

R v LK [2010] HCA 17; (2010) 241 CLR 177

R v Maria [1957] St R Qd 512

R v Meyrick (1929) 21 Cr App R 94

R v Murphy (1837) 8 C & P 297; 173 ER 502

R v Nguyen [2010] HCA 38; (2010) 242 CLR 491

R v Orton [1922] VLR 469

R v Rogerson [1992] HCA 25; (1992) 174 CLR 268

R v Simmonds [1969] 1 QB 685

R v Taufahema [2007] HCA 11; (2007) 228 CLR 232

Saffron v The Queen (1988) 17 NSWLR 395

Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1

Siracusa v The Queen [1990] 90 Cr App R 340

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

The State of Western Australia v Marchesi [2005] WASCA 133; (2005) 30 WAR 359

Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1

Trudgeon v The Queen (1988) 39 A Crim R 252

Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122

Wells v The State of Western Australia [2017] WASCA 27

Williams v The State of Western Australia [2021] WASCA 33

Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482

Table of Contents

Buss P & Livesey AJA

Conviction appeal: s 135 of the Code

Conviction appeal: elements of the offence of conspiracy and proof of the offence

Conviction appeal: applicable principles in determining whether a verdict of guilty is unreasonable or cannot be supported

Conviction appeal: relevant aspects of the State's case at trial

Conviction appeal: relevant aspects of the appellant's case at trial

Conviction appeal: relevant aspects of the trial judge's summing up

Conviction appeal: the proof of the alleged conspiratorial agreement and the parties to the agreement

Conviction appeal: relevant evidence as to whether the appellant joined the conspiracy

Conviction appeal:  its merits

Conclusion

Mitchell JA

Summary

Prosecution case at trial

Appellant's case at trial

Evidence at trial

Primary facts established by the evidence

Mr Tonta's prior relationship with Mr Noormets and Ms Lyall

Abduction and assault of Mr Tonta on 12 June 2017

Arrest of Mr Taylor, Mr Noormets and Ms Atkinson on 13 June 2017

Mr Tonta visits Ms Lyall in 2017

Co-location of Mr Taylor and Mr Curry on 9 May - 9 July 2018

Communication between Mr Tonta and Ms Lyall on 30 June 2018

Communication between Ms Lyall and Mr Manera on 1 - 2 July 2018

Communication between Mr Taylor and Ms Taylor on 2 July 2018

Mr Curry released on bail on 22 July 2018

Mr Curry contacts Mr Tonta on 5 August 2018

Attempts to arrange a meeting with the appellant 8 - 12 August 2018

Mr Curry attempts to contact Mr Tonta on 14 - 16 August 2018

Communication between Mr Taylor and Ms Taylor on 21 August 2018

Attempted meeting on 26 August 2018

Leave pass for Mr Tonta on 27 August 2018

Travel to the appellant's office on 27 August 2018

Meeting with the appellant on 27 August 2018

Communications after the meeting of 27 August 2018

Appellant delivers Mr Tonta's statement to Mr Manera on 30 August 2018

Other communications on 31 August 2018

Communication between Mr Tonta and police on 1 September 2018

Communications on 3 - 4 September 2018

Events of 5 September 2018

Discussion between Ms Taylor and Mr Taylor on 6 September 2018

Attempted meeting on 7 September 2018

Meeting with the appellant on 11 September 2018

Communications following the 11 September 2018 meeting

Arrest of Mr Curry on 5 October 2018

Search of appellant's office on 7 November 2018

Search of Ms Taylor's home on 7 November 2018

Evidence of Mr Tonta

Communications with Mr Curry

Travelling to meeting with appellant on 27 August 2018

Meeting with the appellant on 27 August 2018

Subsequent events

Cross-examination:  contact with Ms Lyall

Cross-examination:  bad character

Cross-examination:  meeting on 27 August 2018

Case left for the jury at trial

Significance of Mr Tonta's evidence

Appellant's lies to police

Elements of the offence

Proving the conspiracy

Proving the appellant joined in the conspiracy

General principles

Appellant's submissions

Respondent's submissions

Disposition of appeal against conviction

Statutory provisions

Perverting the course of justice

Conspiracy to pervert the course of justice

The agreement alleged by the prosecution in this case

Co-conspirator's evidence rule

Credibility and reliability of Mr Tonta's evidence

Proving the existence of the alleged conspiracy

Proving the appellant agreed to procure a false statement from Mr Tonta

Proving the appellant agreed that Mr Tonta would be pressured

Conclusion

Appeal against sentence

Orders

CACR 149 of 2021: appeal against conviction

CACR 148 of 2021: appeal against sentence

BUSS P & LIVESEY AJA:

1. The appellant has appealed against conviction and sentence.

2. The appellant was charged on an indictment which, as amended, alleged that between 8 May 2018 and 8 November 2018, at Perth, Steven Wayne Taylor, Christine Helen Taylor, Simon Patrick Curry and the appellant conspired together to pervert the course of justice upon the prosecution of Steven Wayne Taylor and others on charges of deprivation of liberty and violent offences, by attempting to procure a false statement from Jack Ryan Tonta, contrary to s 135 of the Criminal Code (WA) (the Code).

3. Between 11 February 2021 and 11 March 2021 the appellant and his co‑accused were tried jointly before Sweeney DCJ and a jury.  On 11 March 2021, the appellant and his co‑accused were convicted as charged.

4. On 27 August 2021, the trial judge sentenced the offenders.  The appellant was sentenced to 3 years' immediate imprisonment with eligibility for parole.  The sentence began on the date that it was imposed.

5. In the conviction appeal the appellant relies upon one ground of appeal.  The ground alleges, in essence, that the verdict of guilty on which the conviction is based is unreasonable or cannot be supported having regard to the evidence.

6. In the sentence appeal the appellant relies upon one ground of appeal.  The ground alleges, in essence, that the sentence imposed upon the appellant infringed the parity principle.

7. The appellant requires an extension of time to appeal against conviction and sentence.  The delay in filing the appeal notices has been adequately explained.  We would grant the required extensions.

8. On 10 October 2022, this court heard the appeals.  On 9 December 2022, this court granted the appellant bail pending the determination of the appeals.

9. We agree with Mitchell JA that the sole ground of appeal in the conviction appeal has been made out; leave to appeal should be granted; the appeal allowed; the judgment of conviction set aside; and a judgment of acquittal entered.  However, we will state our own reasons for arriving at those conclusions.

10. It is unnecessary, in the circumstances, to determine the sentence appeal.  Leave to appeal should be refused and the appeal dismissed.

Conviction appeal: s 135 of the Code

1. Section 135 of the Code provides:

   Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a crime, and is liable to imprisonment for 7 years.

Conviction appeal: elements of the offence of conspiracy and proof of the offence

1. A conspiracy is an express or implied agreement between two or more people to do an unlawful act or to do a lawful act by unlawful means.  The essence of the offence is the fact of the agreement.  See Director of Public Prosecutions v Doot;[1] Ahern v The Queen.[2]

   [1] Director of Public Prosecutions v Doot [1973] AC 807, 827 (Lord Pearson).

   [2] Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 93 (Mason CJ, Wilson, Deane, Dawson & Toohey JJ).

2. A conspiracy to pervert the course of justice is an inchoate offence in that the offence is complete without any act having been done apart from the act of agreeing to pervert the course of justice.  An agreement of that kind imports a common intention among the conspirators that someone will do an act which will have the effect of perverting the course of justice.  See R v Rogerson.[3]

   [3] R v Rogerson [1992] HCA 25; (1992) 174 CLR 268, 279 ‑ 280 (Brennan & Toohey JJ).

3. Although the offence of conspiracy is complete upon the making of the agreement, the conspiracy continues while the agreement is being performed.  The offence does not come to an end once the agreement has been made.  The conspiracy continues until the criminal purpose has been achieved or the agreement has been terminated.  See Doot (823); Savvas v The Queen;[4] Truong v The Queen.[5]

   [4] Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1, 8 ‑ 9 (Deane, Dawson, Toohey, Gaudron & McHugh JJ).

   [5] Truong v The Queen [2004] HCA 10; (2004) 223 CLR 122 [35] (Gleeson CJ, McHugh & Heydon JJ).

4. As Weinberg JA (Dodds‑Streeton JA agreeing) noted in R v Caldwell:[6]

   [6] R v Caldwell [2009] VSCA 41; (2009) 22 VR 93 [62].

   The offence of conspiracy is complete the moment that the offenders have entered into the agreement.  Repentance, lack of opportunity and failure are all immaterial, and withdrawal goes to mitigation only (R v Aspinall (1876) 2 QBD 48).

5. There must be an intention to enter into the agreement which is alleged to constitute the conspiracy.  Also, the conspirators must intend that the common design the subject of the agreement should be carried out.  See Peters v The Queen;[7] R v LK.[8]

   [7] Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [55] (McHugh J).

   [8] R v LK [2010] HCA 17; (2010) 241 CLR 177 [64] (French CJ).

6. After a conspiracy is formed, another person may agree with the original conspirators that he or she will join the conspiracy or an original conspirator may drop out.  See Lipohar v The Queen.[9]  The conspiracy remains a single conspiracy if all of the conspirators are, for the period of their participation, acting in combination to achieve the same criminal purpose.  See R v Simmonds;[10] Saffron v The Queen.[11]

   [9] Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 [14] (Gleeson CJ).

   [10] R v Simmonds [1969] 1 QB 685, 696 (Fenton‑Atkinson J delivering the judgment of the Court of Appeal of England and Wales).

   [11] Saffron v The Queen (1988) 17 NSWLR 395, 422 (Hope JA; Clarke JA agreeing).

7. In R v Cotroni,[12] Dickson J (Spence, Beetz & Pratte JJ agreeing) observed:

   [12] R v Cotroni (1979) 45 CCC (2d) 1, 17 ‑ 18.

   The agreement reached by the co-conspirators may contemplate a number of acts or offences.  Any number of persons may be privy to it.  Additional persons may join the ongoing scheme while others may drop out.  So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end.  The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy.

8. So, it is not the acts done by the alleged conspirators which constitute the conspiracy.  Rather, the acts are merely the evidence from which the agreement may be inferred.  See R v Gemmell.[13]

   [13] R v Gemmell [1985] 2 NZLR 740, 744 ‑ 745 (McMullin J, delivering the judgment of the Court of Appeal of New Zealand).

9. In R v Orton,[14] the accused were charged with conspiracy to defraud.  Cussen J directed the jury in relation to an accused who may have joined an existing and ongoing conspiracy, as follows (474):

   [14] R v Orton [1922] VLR 469.

   You can only implicate those who the evidence convinces you were or must have been parties to the formation of the original plan, or afterwards approved of that plan and concurred in it, since a person who comes in during the course of any plan, knowing it to have been formed, and afterwards lends himself to the plan, though he comes in at a later stage, may be found to have adopted everything previously designed by another or agreed upon between others, and then may be a conspirator with the other or others.

10. We understand Cussen J's reference to an accused who may have joined an existing and ongoing conspiracy having 'adopted everything previously designed by another or agreed upon between others', to be a reference to that accused having become a party to the conspiratorial agreement. 

11. An accused may become criminally responsible as a conspirator merely by becoming a party to the agreement.  It is not essential that any particular means or devices for achieving the criminal purpose should have been agreed upon when the accused became a party to the agreement.  See Glanville Williams, Criminal Law: The General Part (2nd ed, 1961) 664.  Also, it is not essential that the accused personally perform the acts that are necessary to achieve the criminal purpose.  See R v Murphy;[15] Doot (827); Ahern (93); Rogerson (279 ‑ 280).

    [15] R v Murphy (1837) 8 C & P 297, 310 ‑ 311; 173 ER 502, 508.

12. The State is not obliged to prove, in the case of an alleged conspiracy, that the agreement was formed at a definite time.  See Agius v The Queen.[16]

    [16] Agius v The Queen [2011] NSWCCA 119; (2011) 80 NSWLR 486 [61] (Johnson J; Tobias AJA & Hall J agreeing).

13. It is not essential that all of the parties to a conspiracy communicate directly with each other.  There may be one conspirator at the centre who communicates with each of the other conspirators individually and, by that means, establishes an agreement by all of the conspirators to achieve the same criminal purpose.  See R v Meyrick;[17] Ex parte Coffey; Re Evans.[18]

    [17] R v Meyrick (1929) 21 Cr App R 94, 101 ‑ 102 (Hewart LCJ delivering the judgment of the Court of Criminal Appeal).

    [18] Ex parte Coffey; Re Evans [1971] 1 NSWLR 434, 445 ‑ 446 (Herron CJ & Holmes JA).

14. The existence of a conspiracy can rarely be proved by direct evidence.  The agreement must invariably be proved by circumstantial evidence; that is, by inference from the conduct of the alleged conspirators and other facts.  See R v Gagnon;[19] Churchill v Walton;[20] Ahern (93).

    [19] R v Gagnon (1956) 115 CCC 361, 365 (Fauteux J, delivering the judgment of the Supreme Court of Canada).

    [20] Churchill v Walton [1967] 2 AC 224, 232 (Viscount Dilhorne; Lord MacDermott, Lord Pearce, Lord Upjohn & Lord Pearson agreeing).

15. In Siracusa v The Queen,[21] O'Connor LJ, delivering the judgment of the Court of Appeal of England and Wales, said:

    [21] Siracusa v The Queen [1990] 90 Cr App R 340, 349.

    [T]he origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made, or when or where other conspirators were recruited.  The very existence of the agreement can only be inferred from overt acts.  Participation in a conspiracy is infinitely variable: it can be active or passive.  If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company's name by a fellow director and minority shareholder, he is guilty of conspiracy.  Consent, that is the agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.

16. Although overt acts will often be relied upon for the purpose of proving the existence of a conspiracy, an overt act is not itself an element of the offence.  See Lipohar [140], [189], [190], [227].

17. The State must prove the conspiratorial agreement that it alleges at trial.  The accused cannot be convicted of a conspiratorial agreement that is materially different from the conspiratorial agreement alleged by the State.  See R v Maria;[22] Gerakiteys v The Queen;[23] Saffron (424 ‑ 425); Marinovich v The Queen.[24]

    [22] R v Maria [1957] St R Qd 512, 523, 528 (Stanley J; Townley J & Moynihan AJ agreeing).

    [23] Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317, 320 ‑ 321 (Gibbs CJ), 332 ‑ 335 (Deane J).

    [24] Marinovich v The Queen (1990) 46 A Crim R 282, 314 ‑ 315 (Malcolm CJ & Kennedy J).

18. Evidence is admissible, for the purpose of proving the existence of a conspiracy, of acts done or statements made by persons other than the accused (even if the accused was not present when the acts were done or the statements were made).  That evidence is admissible in order to establish, from the fact that the acts were done or the fact that the statements were made, a foundation for inferring that the alleged conspiratorial agreement was made.  The evidence is direct evidence and not hearsay because the evidence is not led to prove against the accused the truth of any express or implied assertion made by the actor or the maker of the statement.  The evidence is admissible for the purpose of proving the existence of a conspiracy (even if the acts were done or the statements were made before the accused joined the conspiracy), because the admission of the evidence on that basis does not depend upon any acknowledgment or acceptance by the accused of the truth of any express or implied assertion.  See Ahern (93 ‑ 94); Masters v The Queen.[25]

    [25] Masters v The Queen (1992) 26 NSWLR 450, 461 (Hunt CJ at CL, Allen & Badgery‑Parker JJ).

1. Evidence is admissible, for the purpose of proving that the accused participated in a conspiracy, of acts done or statements made by persons other than the accused (even if the accused was not present when the acts were done or the statements were made), if:

   (a)the existence of a conspiracy of the type alleged is established;

   (b)the acts were done or the statements were made in furtherance of the conspiracy's common purpose; and

   (c)there is reasonable evidence of the accused's participation in the conspiracy (that is, evidence independent of those acts and statements by other persons) which is admissible in the ordinary way against the accused.

   See Ahern (100); Masters (461).

2. If there is reasonable evidence that the accused has participated in the conspiracy, the acts done and statements made by persons other than the accused, even if the accused was not present when the acts were done or the statements were made, will become admissible against the accused not only for the purpose of proving the existence of the conspiracy but also for the purpose of proving that the accused participated in the conspiracy.  See Tripodi v The Queen;[26] Ahern (100); Masters (461).

   [26] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 6 ‑ 7 (Dixon CJ, Fullagar & Windeyer JJ).

3. Where it is alleged that the accused joined the conspiracy after its formation, acts done and statements made by persons other than the accused will not become admissible against the accused for the purpose of proving the nature and extent of his or her participation in the conspiracy that was previously formed, unless there is reasonable evidence of the accused's participation by that stage in the conspiracy previously established.  See Masters (464).

4. The trial judge alone determines whether the independent evidence is sufficient to constitute reasonable evidence of the accused's participation in the conspiracy.  See Ahern (103 ‑ 105).

5. Where the State charges the offence of conspiracy, contrary to s 135 of the Code, the State must prove, first, the existence of the conspiracy and, secondly, the participation of each accused in that conspiracy. See Ahern (93).

Conviction appeal: applicable principles in determining whether a verdict of guilty is unreasonable or cannot be supported

1. It is a question of fact whether, having regard to the evidence, a verdict of guilty on which a conviction is based is unreasonable or cannot be supported.  See M v The Queen;[27] Zaburoni v The Queen;[28] GAX v The Queen.[29]

   [27] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 ‑ 493 (Mason CJ, Deane, Dawson & Toohey JJ).

   [28] Zaburoni v The Queen [2016] HCA 12; (2016) 256 CLR 482 [56] (Gageler J).

   [29] GAX v The Queen [2017] HCA 25; (2017) 91 ALJR 698 [25] (Bell, Gageler, Nettle & Gordon JJ).

2. An intermediate court of appeal (the appellate court) must decide that question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in all the circumstances to permit the verdict to stand.  See M (492 ‑ 493); SKA v The Queen.[30]

   [30] SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).

3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence).  See SKA [22], [24].

4. The appellate court's task is not to consider, as a question of law, merely whether there was sufficient evidence to sustain a conviction.  See Morris v The Queen.[31]

   [31] Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ). See also M (492 ‑ 493); SKA [20].

5. The appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations':  M (493); R v Nguyen;[32] SKA [13].

   [32] R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ).

6. Circumstantial evidence must not, of course, be considered on a piecemeal basis.  It must be evaluated in its entirety.  See R v Hillier.[33]

   [33] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46], [48] (Gummow, Hayne & Crennan JJ).

7. In R vBaden‑Clay,[34] French CJ, Kiefel, Bell, Keane and Gordon JJ made these observations in relation to determining whether, in a circumstantial evidence case, a reasonable inference consistent with the accused's innocence is open:

   [34] R v Baden‑Clay [2016] HCA 35; (2016) 258 CLR 308 [47].

   For an inference to be reasonable, it 'must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence' (Peacock v The King (1911) 13 CLR 619, 661, quoted in Barca v The Queen (1975) 133 CLR 82, 104) (emphasis added). Further, 'in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence' (R v Hillier (2007) 228 CLR 618, 637 [46] (footnote omitted)) (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal (R v Hillier (2007) 228 CLR 618, 638 [48]. See also Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535). (original emphasis)

8. In Pell v The Queen,[35] the High Court made these statements about the assessment of the credibility of a witness by a jury, in the context of a ground of appeal which alleges that the jury's verdict was unreasonable or insupportable having regard to the evidence:

   [35] Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ).

   [T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community.  Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness‑box.  The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses.  Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.  (footnote omitted)

9. The appellate court examines the trial record to ascertain whether, despite the jury's advantage in having seen and heard the witnesses in the context of the trial, the jury, acting rationally, should have entertained a reasonable doubt as to proof of guilt.

10. The appellate court's function is to determine for itself whether the evidence at trial was sufficient in nature and quality to remove any reasonable doubt that the accused was guilty of the offence charged.  See Dansie v The Queen.[36]  The critical issue is 'whether the court's assessment of the totality of the evidence leaves the court with a reasonable doubt as to guilt which the court cannot assuage by having regard to such advantage as the [fact finding tribunal] can be taken to have had by reason of having seen and heard the evidence at trial': Dansie [16].

    [36] Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728 [7] (Gageler, Keane, Gordon, Steward & Gleeson JJ).

11. The ultimate question for the appellate court must always be whether the appellate court thinks that upon the whole of the evidence it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty.  See M (494 ‑ 495); Hillier[20]; Fitzgerald v The Queen;[37] Baden‑Clay [66].

    [37] Fitzgerald v The Queen [2014] HCA 28; (2014) 88 ALJR 779 [5] (Hayne, Crennan, Kiefel, Bell & Gageler JJ).

12. The setting aside of a tribunal of fact's verdict of guilty because, having regard to the evidence, it is unreasonable or cannot be supported is a serious step.  Trial by the appellate court is not to be substituted for trial by the tribunal of fact.  See Baden‑Clay [65] ‑ [66].

13. The appellate court's reasons must disclose its assessment of the capacity of the evidence to support the verdict.  See SKA [22] ‑ [24]; BCM v The Queen;[38] GAX [25].

    [38] BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 [31] (Hayne, Crennan, Kiefel, Bell & Keane JJ).

14. The nature and extent of the appellate court's task, in a particular case, will be informed by:

    (a)the elements of the offence;

    (b)the accused's defence;

    (c)the issues in contest at the trial;

    (d)the manner in which the trial was conducted;

    (e)the way in which the case was ultimately left to the tribunal of fact;

    (f)whether the tribunal of fact was a judge (who must state the principles of law that he or she has applied and the findings of fact on which he or she has relied) or a jury (which does not give reasons); and

    (g)the particulars of the ground of appeal.

Conviction appeal: relevant aspects of the State's case at trial

1. The count in the indictment, as amended, alleged that the appellant and his co‑accused 'conspired together to pervert the course of justice upon the prosecution of [one of the co‑accused, namely Mr Taylor] and others on charges of deprivation of liberty and violent offences by attempting to procure a false statement from [Mr Tonta]', contrary to s 135 of the Code.

2. The charges of deprivation of liberty and violent offences referred to in the count concerned pending charges against Mr Taylor, Luke Noormets and Jessica Atkinson (who was Mr Taylor's domestic partner).  The pending charges related to allegations by Mr Tonta that on 12 June 2017 he was abducted by Mr Taylor and Mr Noormets from a car park and driven in the boot of a car to a warehouse where they continued to deprive him of his liberty.  Mr Tonta also alleged that at the warehouse he was assaulted by Mr Taylor, Mr Noormets and Ms Atkinson.  Mr Tonta escaped from the warehouse on 13 June 2017.  After he escaped, Mr Tonta gave statements to police on 13 and 15 June 2017.  He implicated Mr Taylor, Mr Noormets and Ms Atkinson in the offending against him.  On 13 June 2017, Mr Taylor, Mr Noormets and Ms Atkinson were arrested and charged with deprivation of liberty and violent offences.  They were remanded in custody.

3. The State served on the appellant and his co‑accused at the trial a document dated 5 March 2021 and headed 'Joint Criminal Enterprise - Particulars' (the Particulars Document).  In para 3 of the Particulars Document the State alleged that the conspiratorial agreement was 'to pervert the prosecution of [Mr Taylor] by pressuring [Mr Tonta] to recant his original statements given to police on 13 and 15 June 2017 and in doing so exculpate [Mr Taylor] and others'.

4. Between 9 May 2018 and 9 July 2018, Mr Taylor and Mr Curry were held in custody in the same prison unit.  Mr Curry was in custody for offending unrelated to Mr Tonta.  The State alleged that the original conspiratorial agreement was formed between Mr Taylor and Mr Curry while they were in custody together.

5. At the trial the prosecutor told the jury in his opening address that the trial was about 'what took place after [Mr Taylor, Mr Noormets and Ms Atkinson] were charged by police and remanded in custody'.  The prosecutor added that the trial was about 'the efforts made to encourage, to cajole, to threaten Jack Tonta to recant his earlier account to police about that incident' (emphasis added).  The prosecutor then said that the trial was about 'the criminal agreement that the State alleges existed between the four accused'.[39]

   [39] Trial ts 85.

6. The prosecutor explained to the jury, in his opening address, that 'once [Mr Curry] was released on bail on 22 July 2018, [Mr Curry] was [Mr Taylor's] foot soldier, the muscle, the one whose role it was to directly encourage, cajole and threaten Jack Tonta to recant his earlier account to police about the June 2017 incident' (emphasis added).[40]

   [40] Trial ts 90.

7. The prosecutor also explained to the jury, in his opening address, the alleged formation and development of the conspiratorial agreement and the alleged role of each accused as and when they joined the conspiracy:[41]

   [41] Trial ts 123 ‑ 124.

   Steven Taylor, Christine Taylor, Simon Curry and Gary Rodgers all played different roles in this criminal conspiracy …

   All played different roles, all part of the same unlawful agreement … It is not suggested that all four accuseds [sic] sat down at a table and formed the unlawful agreement at the same time.  That is not the State's case, nor is it something that needs to be established before you can conclude a conspiracy did in fact exist.

   It is the State's case, ladies and gentlemen, that Steven Taylor, the one that stood the most to gain from this conspiracy, was the one that set the wheels in motion.  It is the State's case that he instructed Simon Curry to obtain a false statement from Jack Tonta when Mr Taylor and Mr Curry were in the same unit in Casuarina Prison between May and July 2018.

   It is the State's case that Steven Taylor then conscripted his mother, Christine Taylor, to be the one that kept him updated on the progress of Simon Curry's actions once Mr Curry had been released from custody to ensure that Mr Curry did what he needed to do with Mr Tonta to ensure the charges were dropped.

   It is the State's case that in order to facilitate the conspiracy, Mr Curry exerted pressure on Jack Tonta and sought out the services of criminal defence lawyer Gary Rodgers and conscripted Mr Rodgers into this unlawful agreement to obtain a false statement from Jack Tonta.

   At the end of this trial, ladies and gentlemen, I'll be inviting you to consider all the evidence, as I said, as presented as a whole.  That evidence will include what each accused person said to each other and what some of them said to Jack Tonta.  That evidence will include what the accused persons did during the relevant period of time in furtherance of this criminal conspiracy.

   This case is a circumstantial case.  It will involve you putting all pieces of the puzzle together and stepping back to view the image that emerges.  The State's suggestion to you is that once you do that, you will be satisfied beyond a reasonable doubt that the four accuseds [sic] that sit in the dock behind me conspired together to pervert the course of justice.  (emphasis added)

8. In his opening address, the prosecutor informed the jury that:

   (a)between 9 May 2018 and 9 June 2018, when Mr Taylor and Mr Curry were in the same prison unit, Mr Taylor and Mr Curry 'entered into an unlawful agreement to pressure Jack Tonta to change his story and thereby get [Mr Taylor, Mr Noormets and Ms Atkinson] out of jail';[42]

   [42] Trial ts 90.

   (b)after his release from prison, Mr Curry made 'veiled threat[s]' to Mr Tonta;[43]

   [43] Trial ts 91.

   (c)Mr Tonta would give evidence that he told Mr Curry that he would change his story because of 'a climate of fear and … intimidation that [Mr Tonta] was operating within at the time';[44]

   [44] Trial ts 96.

   (d)during later conversations between Mr Curry and Mr Tonta, Mr Curry referred to 'sending Rob Sailor' around to Mr Tonta's mother's house or to the home where Mr Tonta's former partner, Paige, and their son lived 'to ensure Mr Tonta's continued cooperation … with the plan to get [Mr Taylor, Mr Noormets and Ms Atkinson] out of jail'.  Mr Tonta understood Mr Sailor was linked to 'the recovery of drug debts' and was a person who had 'a reputation for hurting people';[45]

   [45] Trial ts 98.

   (e)Mr Tonta would give evidence that he felt 'intimidated' and went along with the plan 'out of a desire to avoid being harmed and to avoid any harm coming to his mother and to his son';[46]

   [46] Trial ts 99.

   (f)Mr Curry exerted 'pressure' on Mr Tonta;[47]

   [47] Trial ts 107, 122, 124.

   (g)Mr Curry 'sought out the services of [the appellant] and conscripted [the appellant] into this unlawful agreement to obtain a false statement from Jack Tonta'.[48]

   [48] Trial ts 124.

9. So, during his opening address, the prosecutor referred on numerous occasions to 'pressure', in the context of Mr Curry applying pressure to or exerting pressure upon Mr Tonta.[49]  The prosecutor also variously described the kind of 'pressure' applied to or exerted upon Mr Tonta as 'encouraging',[50] 'cajoling',[51] 'threatening',[52] 'intimidating'.[53]

   [49] Trial ts 90, 107, 108, 122, 124.

   [50] Trial ts 90.

   [51] Trial ts 85, 90.

   [52] Trial ts 85, 90, 91, 98, 99, 101, 116.

   [53] Trial ts 96, 99.

10. The prosecutor submitted to the jury in his closing address:

    (a)Each of the accused had a different role within the unlawful agreement.  Mr Taylor had dealings with Mr Curry and Ms Taylor (who is Mr Taylor's mother).  Ms Taylor had dealings with Mr Taylor and Mr Curry.  Mr Curry had dealings with Ms Taylor, the appellant and Mr Tonta.  The appellant had dealings with Mr Curry and Mr Tonta.  The appellant was involved in the unlawful agreement to provide the façade of legal propriety.  The appellant obtained a false statement from Mr Tonta.  The appellant made efforts to obtain a second false statement from Mr Tonta.  Those efforts included meeting with Mr Tonta on 11 September 2018.  During that meeting, when it became obvious that Mr Tonta would not provide a second false statement, the appellant advised Mr Tonta that there would be no repercussions if Mr Tonta did not attend and give evidence at the trial of Mr Taylor, Mr Noormets and Ms Atkinson.[54]

    [54] Trial ts 1296 ‑ 1298.

    (b)The conspiratorial agreement was formed initially between Mr Taylor and Mr Curry, before Mr Curry was released from prison on 22 July 2018.[55]  Ms Taylor joined the conspiracy after the agreement was formed initially by Mr Taylor and Mr Curry and before the appellant was recruited.[56]  The appellant joined the conspiracy on or about 11 August 2018.[57]

    [55] Trial ts 1297.

    [56] Trial ts 1297 ‑ 1298, 1327.

    [57] Trial ts 1386.

    (c)Mr Curry was 'tasked' by Mr Taylor to be his 'lieutenant on the outside' and to 'get this thing done'.[58]  Mr Curry made 'veiled threats' and 'not so veiled threats' to Mr Tonta in the lead up to Mr Tonta's meeting with the appellant on 27 August 2018.[59]  The threats included Mr Curry's reference to Robbie Sailor whom Mr Tonta knew as a standover debt collector.  Mr Tonta considered Robbie Sailor to be an intimidating figure.  Mr Sailor was probably twice the size of Mr Tonta and Mr Sailor's face was covered with tattoos.  The mention of Mr Sailor's name instilled fear and concern in Mr Tonta.[60]  Mr Curry directed what work the appellant was to do on behalf of the conspiracy.[61]  The State's case against Mr Curry was, in summary, as follows:[62]

    [58] Trial ts 1342, 1345.

    [59] Trial ts 1351 - 1352.

    [60] Trial ts 1351.

    [61] Trial ts 1360.

    [62] Trial ts 1364.

    (i)Mr Curry's purpose in contacting Mr Tonta was to obtain the release from prison of Mr Taylor, Mr Noormets and Ms Atkinson.

    (ii)Mr Curry had been given that task by Mr Taylor while they were in prison together.

    (iii)Mr Curry conscripted the appellant into the unlawful agreement.  Mr Curry organised and paid for the work that the appellant did on behalf of the conspiracy. 

    (iv)The things that Mr Tonta did from 5 August 2018 onwards were 'a direct result of the pressure exerted by [Mr Curry] and because of the veiled and then not so veiled threats made by [Mr Curry] to [Mr Tonta's] own safety and the safety of his family'.

    (v)From 5 August 2018 onwards, Mr Curry ensured that Mr Taylor was updated on progress by Mr Curry keeping Ms Taylor 'in the loop'.

    (d)If Mr Taylor, Ms Taylor and Mr Curry had merely wanted to provide legitimate assistance to Mr Tonta in making another statement to police, it was unnecessary for the appellant to have been involved.  In August 2018, Mr Tonta already had a lawyer, namely Ian Hope.  If Mr Tonta had wanted to change the account he had given to police and he did not want to approach one of the two police officers to whom he had 24 hour access, Mr Tonta would have asked his own lawyer for assistance.[63]

    [63] Trial ts 1367.

    (e)The appellant was recruited by Mr Curry to take a statement from Mr Tonta before the appellant had any contact with Mr Tonta.  If Mr Tonta had wanted to provide a statement or consult with the appellant then it was for Mr Tonta to make contact with the appellant and make the arrangements.  However, Mr Curry wanted to speak with the appellant before the appellant spoke with Mr Tonta.  That indicated that the appellant was working for Mr Curry and the other co‑accused and not for Mr Tonta.  Mr Tonta was not the appellant's client.[64]

    [64] Trial ts 1368 ‑ 1369, 1379.

    (f)The appellant deliberately misled the Department of Community Corrections in relation to the reason for the appellant meeting with Mr Tonta on 27 August 2018.[65]

    [65] Trial ts 1370.

    (g)The appellant agreed with Mr Curry that the appellant would report to Mr Curry after the appellant had met with Mr Tonta.[66]  If the appellant was legitimately providing Mr Tonta with legal advice or services the discussions between the appellant and Mr Tonta would have been private and confidential.  There was no evidence that Mr Tonta consented to the appellant discussing his legal affairs with Mr Curry.[67]

    [66] Trial ts 1371.

    [67] Trial ts 1371 ‑ 1372.

    (h)The appellant gave to David Manera (the lawyer acting for Mr Noormets) a false statement signed by Mr Tonta at a meeting with the appellant on 27 August 2018.  However, the appellant did not provide the statement to Mr Manera on Mr Tonta's instructions.[68]

    [68] Trial ts 1374.

    (i)The false statement signed by Mr Tonta at the meeting with the appellant on 27 August 2018 assisted Mr Noormets and it 'certainly seemed like it would get him off the hook'.  However, as the appellant appreciated after the meeting on 27 August 2018, another statement from Mr Tonta would be necessary to exculpate Mr Taylor and Ms Atkinson.[69]

    [69] Trial ts 1377.

    (j)The appellant's actions were in accordance with Mr Curry's instructions, not Mr Tonta's.[70]

    [70] Trial ts 1378.

    (k)After the meeting on 27 August 2018, it was apparent from communications between the appellant, on the one hand, and Mr Curry or Ms Taylor, on the other, and from Mr Tonta's evidence, that Mr Tonta was being 'pestered' by the accused.  The accused were 'hunting him' even though Mr Tonta had 'already told them to back off and let him be'.[71]  However, the actions of the accused had nothing to do with what Mr Tonta wanted.  They were about obtaining another statement from Mr Tonta in the hope that the 'second one would be more effective than the first' and would 'get the three people out of jail, which [was] the plan'.[72]

    [71] Trial ts 1379.

    [72] Trial ts 1378 ‑ 1379.

    (l)The appellant's reactions and advice at a meeting between the appellant and Mr Tonta on 11 September 2018 were consistent with the appellant 'trying to assist in a plan to pervert the course of justice' and indicated 'knowledge of the duress over [Mr Tonta]'.  During the meeting the appellant did not demonstrate any concern for Mr Tonta's safety or for ethical conduct.  The appellant did not once tell Mr Tonta to tell the truth because the appellant was not conscripted to obtain a truthful statement from Mr Tonta at the meeting on 27 August 2018 or at the meeting on 11 September 2018.  The appellant told Mr Tonta at the meeting on 11 September 2018 that a statement was 'just a piece of paper'.[73]

    [73] Trial ts 1382.

    (m)When the appellant answered questions from police upon police executing a search warrant at the appellant's office on 7 November 2018, the appellant was inconsistent, vague and dishonest.  The appellant told police that the first time Mr Curry had contacted him was for the purposes of a bail application.  The bail application related to the arrest of Mr Curry on 4 October 2018 for unrelated matters.  The statement by the appellant as to the first time Mr Curry had contacted him was a deliberate lie told out of a consciousness of guilt.  The lie was significant because if the appellant had told the truth he would have implicated himself in the commission of the offence for which he and his co‑accused were being tried.  The appellant's contact and relationship with Mr Curry before October 2018 had nothing to do with Mr Curry's own legal issues and everything to do with the implementation of the conspiratorial agreement.[74]

    [74] Trial ts 1383 ‑ 1385.

1. During his closing address, the prosecutor referred on numerous occasions to 'pressure', in the context of pressure being applied to or exerted upon Mr Tonta.[75]  The prosecutor variously described the kind of 'pressure' applied to or exerted upon Mr Tonta as 'threatening'[76] or 'intimidating'[77] him.  The prosecutor also referred to Mr Tonta having been instilled with 'fear and concern'[78] and to Mr Tonta having been under 'duress'.[79]  The prosecutor did not in his closing address describe the kind of 'pressure' applied to or exerted upon Mr Tonta as 'cajoling'.

   [75] Trial ts 1298, 1311, 1313, 1314, 1316, 1345, 1356, 1364, 1377, 1381.

   [76] Trial ts 1298, 1315, 1328, 1333, 1335, 1344, 1345, 1349, 1350, 1351, 1352, 1355, 1364, 1381.

   [77] Trial ts 1305, 1344, 1351, 1354, 1373.

   [78] Trial ts 1351.

   [79] Trial ts 1382.

2. It is apparent, from our review of the State's case at trial, that the State did not merely allege at trial a conspiratorial agreement between the appellant and his co‑accused to attempt to procure a false statement from Mr Tonta, as pleaded in the count in the indictment.  It is also apparent, from our review of the State's case at trial, that the State did not merely allege at trial that the false statement was to be procured by 'pressuring' Mr Tonta to recant his original statements to police, as particularised in the Particulars Document.  Rather, the State went further, alleging at trial that the 'pressuring' of Mr Tonta involved 'threatening' him, 'cajoling' him, 'intimidating' him, instilling 'fear and concern' in him and putting him under 'duress'.

3. It is a remarkable feature of the manner in which the State ran its case at trial that the State decided to increase the difficulty of proving its case against the appellant and his co‑accused by alleging that the conspiratorial agreement was to procure a false statement from Mr Tonta by pressuring Mr Tonta by means of threatening him, cajoling him, intimidating him, instilling fear and concern in him and putting him under duress.  The charged offence of conspiracy to pervert the course of justice, as pleaded in the count in the indictment as amended, only alleged an agreement to do an unlawful act.  The unlawful act was agreeing to pervert the course of justice upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson 'by attempting to procure a false statement from [Mr Tonta]'.  The charged offence, as pleaded in the count in the indictment as amended, could have been made out without also alleging that the conspiratorial agreement extended to procuring the false statement by threatening Mr Tonta, cajoling him, intimidating him, instilling fear and concern in him and putting him under duress.

Conviction appeal: relevant aspects of the appellant's case at trial

1. At the trial defence counsel for the appellant made an opening statement.  He told the jury that the appellant was a 'very respected lawyer' with an 'unblemished record'.  There was 'nothing untoward' in Mr Tonta visiting the appellant's office on 27 August 2018 to make the statement.  The statement was 'generated and solely the idea of Mr Tonta himself'.  No statement was produced at the meeting on 11 September 2018 between the appellant and Mr Tonta.  The appellant had 'done absolutely nothing' of the kind alleged by the State.[80]

   [80] Trial ts 163 ‑ 165.

2. The appellant did not give or adduce evidence at the trial.[81]  Ms Taylor was the only accused who gave evidence at the trial.

   [81] Trial ts 1259.

3. Defence counsel submitted to the jury in his closing address that 'there [was] not one piece of evidence that [the appellant] did anything with Mr Tonta other than what Mr Tonta instructed him to do'.  What Mr Tonta instructed the appellant to do was 'far from a conspiracy or being part of a conspiracy'.[82]  The appellant 'simply put into effect that which Mr Tonta asked him to put into effect and all of the conduct is consistent with that'.[83]  The appellant had done nothing wrong.[84]

   [82] Trial ts 1467.

   [83] Trial ts 1471.

   [84] Trial ts 1475.

Conviction appeal: relevant aspects of the trial judge's summing up

1. The trial judge summarised the State's case as follows:[85]

   [85] Trial ts 1515.

   The State's case is the four accused have conspired with each other to pressure Jack Tonta to change his story and that he only did so because he felt intimidated and worried about the consequences for himself, and more so, his family if he refused because of veiled and not so veiled threats against him.  That is what the State alleges and that is what the State must prove.  (emphasis added)

2. Later, her Honour said:[86]

   [86] Trial ts 1532.

   The conspiracy alleged by the State … was an agreement to pressure Jack Tonta by means of encouraging, cajoling and threatening him into falsely changing the account he had given to the police about the June 2017 incident at the warehouse in which he had named Luke Noormets, Jessica Atkinson and Steven Taylor as his assailants such that his change in account achieved those three people getting out of gaol.

   It's the State's case the conspiracy began as an agreement between Mr Taylor [and Mr Curry] and then was joined by Ms Taylor and [the appellant].  (emphasis added)

3. The trial judge gave the jury these directions in relation to the offence of conspiracy:[87]

   [87] Trial ts 1534 - 1535.

   The offence is the agreement itself and it is committed once agreement has been reached, although the offence then continues while ever the effect of the agreement remains on foot.  But it's the agreement itself which constitutes the offence.

   For an offence of conspiracy to be proved, it is not necessary that any accused have gone on to commit a single act in furtherance of that agreement in order to achieve what was agreed upon because it is the agreement itself, the act of agreeing, which is the offence, without any further act being required.

   Very often, however, the fact of a conspiracy is only evidenced by the way in which parties to the agreement have acted and the things that they have said and written from which the agreement can be inferred.  So while it is the agreement itself which is the offence and no further act other than that act of agreeing need be proved to constitute the offence, in practical terms, very often the proof of a conspiracy does come down to the acts of the parties and the things they've said, including things they've written, and whether it can be said that the only reasonable explanation for the coincidence in how several people are acting and in the things they've said is that they were acting pursuant to an agreement with each other to pursue some unlawful purpose.

   An agreement might be reached with the intention of carrying it out, but it's not put into action or it's only partly put into action without success or with only limited success.  It is not necessary for the State to prove that the accused you are considering, or any accused, actually did carry out their agreed role successfully or at all.  It's not necessary for the conspirators to even be capable of carrying out their plan.  If they agree upon an unlawful course of action and each intends to play some role in carrying that out, it does not matter if their plan is half baked or doomed to failure.  Remember, the essence of a conspiracy lies in the agreement to do something unlawful, not the actual doing of the unlawful act.

   It is not necessary that each participant in the agreement know all the details of how it is to be carried out or even to know each other participant.  They may not know or have met or spoken to each other participant.  Parties to a conspiracy may not be in direct communication with each other party, and each may join a conspiracy or leave a conspiracy at different times, each having different roles to play.

   So for example, two men may reach an agreement with each other, then each man ropes in a best friend whom he trusts and all four may meet and know that each of the four is involved.

   Alternatively, however, two men may reach an agreement with each other, then each man ropes in his best friend whom he trusts and reaches the same agreement with him to achieve the unlawful purpose.  … [T]he trusted friends may only meet the person who brought them in, but all four people have the same intention and are carrying out their respective roles in the same agreement to carry out an unlawful purpose.

   So the four do not all have to meet, do not all have to communicate, do not have to all know each other's names for there to yet [sic] be an agreement involving all four who each intend to play some role to carry out the same unlawful purpose.

4. Her Honour then restated the State's case as follows:[88]

   [88] Trial ts 1535.

   The State alleges that each accused intended to and entered into an agreement to pervert the course of justice upon the prosecution of Steven Taylor and others, for deprivation of liberty and violent offences, by attempting to procure a false statement from Jack Tonta.  It must prove they agreed to pervert the course of justice, that each intended to play some part in order to negatively interfere with the course of justice. (emphasis added)

5. Next, the trial judge explained the meaning of 'to pervert the course of justice' by reference to the State's case against the appellant and his co‑accused.[89]  Her Honour said that the State alleged that 'the four accused intended and agreed to engage in conduct which had a tendency to negatively interfere with the course of justice in [the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson] by procuring Jack Tonta to make a false statement in which he altered the account about the events in June 2017'.[90]  Her Honour said that the word 'procure' in the indictment means 'attempting to obtain or bring about a false statement from Jack Tonta with the aim that he would alter his account to such an extent that it would weaken the prosecution case against Steven Taylor and his accomplices, with the aim of firstly improving their chances of getting out of prison [on] bail [and] secondly, having the charges dropped altogether'.[91]

   [89] Trial ts 1535 - 1538.

   [90] Trial ts 1536.

   [91] Trial ts 1536.

6. Her Honour then said:[92]

   [92] Trial ts 1537.

   So it [is] the State's case that the accused intended and agreed to pursue the unlawful purpose of obtaining a false statement by Mr Tonta by threatening, cajoling and intimidating him.  And the State alleges that they did that both in the knowledge that the statement would be false, because it would falsely exculpate the accused [Mr Taylor] and others from most or all of the allegations against them … [a]nd with the intention that the false statement would be used by the defence and the prosecution in some way in an attempt to influence a decision made by a court on bail, and possibly the path of the [prosecution] itself, so that the prosecutors and the court would be provided with false information upon which to base decisions. (emphasis added)

7. The trial judge directed the jury that the State had to prove beyond reasonable doubt against, relevantly, the appellant that:[93]

   [93] Trial ts 1538 - 1539, 1544, 1550.

   (a)The appellant entered into an agreement with at least one other accused to engage in unlawful conduct, namely conduct which had a tendency to negatively interfere with the proper administration of the course of justice, that being 'the threatening, cajoling or intimidation' of Mr Tonta to get him to make a false statement.

   (b)The appellant intended, in so agreeing, that the proper administration of the course of justice would be negatively interfered with; that is, that the false statement would be used to influence the decision of a court and/or the prosecution.

   (c)The appellant intended to play some part or some role in carrying out that agreed unlawful purpose.

8. In her summing up, her Honour referred to the appellant and his co‑accused having allegedly agreed to procure a false statement from Mr Tonta by these means:

   (a)'pressuring, cajoling and threatening';[94]

   [94] Trial ts 1515.

   (b)'pressured, cajoled and threatened';[95]

   [95] Trial ts 1516.

   (c)'encouraging, cajoling and threatening him';[96]

   [96] Trial ts 1532, 1644.

   (d)'threatening, cajoling and intimidating him';[97]

   [97] Trial ts 1537.

   (e)'threaten, cajole and intimidate';[98]

   [98] Trial ts 1537.

   (f)'threatening, cajoling or intimidation';[99]

   [99] Trial ts 1538, 1543, 1544.

   (g)'threats or persuasion';[100]

   [100] Trial ts 1539.

   (h)'threatening or cajoling or intimidation';[101]

   [101] Trial ts 1550.

   (i)'pressure or intimidate or cajole';[102]

   [102] Trial ts 1662.

   (j)'encouraging, cajoling or threatening';[103] and

   [103] Trial ts 1644.

   (k)'threatened, pressured and cajoled'.[104]

   [104] Trial ts 1645.

9. The trial judge's directions to the jury in relation to the alleged conspiratorial agreement, including the alleged means by which the appellant and his co‑accused had allegedly agreed to pressure Mr Tonta to falsely change his statements to police, must be considered by taking the directions (and the summing up) as a whole. They must be considered from the perspective of a jury listening to those directions (and the summing up) as a whole and how the jury might understand them, and not upon a subtle examination of the transcript or by giving undue prominence to any individual parts.  See R v Dookheea.[105]

   [105] R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle & Edelman JJ).

10. In our opinion, having regard to:

    (a)the manner in which the State pleaded the charged offence in the indictment, as amended;

    (b)the manner in which the State particularised the charged offence in the Particulars Document;

    (c)the manner in which the prosecutor put the State's case in his opening address;

    (d)the manner in which the prosecutor put the State's case in his closing address; and

    (e)her Honour's summing up as a whole,

    her Honour's directions conveyed to the jury, in substance, that the conspiracy alleged by the State was an agreement to pervert the course of justice, upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson for deprivation of liberty and violent offences, by pressuring Mr Tonta, by means of threatening, cajoling and intimidating him, to falsely change his statements to police.

11. The formulation 'threatening, cajoling and intimidating' embodied three separate and distinct means that were conjunctive, not disjunctive.

12. Her Honour directed the jury that the State's case against the appellant and his co‑accused depended upon the jury accepting that Mr Tonta's evidence was honest and reliable in its essential details.[106]  Her Honour referred to a number of matters that could adversely affect the jury's assessment of the honesty and reliability of Mr Tonta's evidence.  However, her Honour said that the jury was entitled to act upon Mr Tonta's evidence if, having scrutinised his evidence carefully and having regard to the warning her Honour had given, the jury was satisfied that Mr Tonta was a truthful and accurate witness about the matters with which the trial was concerned and that Mr Tonta had told the truth about the essential aspects of his evidence upon which the State relied.[107]

    [106] Trial ts 1516.

    [107] Trial ts 1520 ‑ 1521.

13. Neither the prosecutor nor any of the defence counsel sought any redirection or additional direction from the trial judge in relation to any issue of fact or law.[108]

    [108] Trial ts 1667, 1671 ‑ 1672.

Conviction appeal: the proof of the alleged conspiratorial agreement and the parties to the agreement

1. We are satisfied, on our review of the trial record (in particular, having regard to the evidence set out or referred to in Mitchell JA's reasons), that the State proved beyond reasonable doubt that between 9 May 2018 and 9 June 2018 Mr Taylor and Mr Curry agreed to pervert the course of justice, upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson for deprivation of liberty and violent offences, by pressuring Mr Tonta, by means of threatening, cajoling and intimidating him, to falsely change his statements to police.

2. It is unnecessary to decide whether the State proved beyond reasonable doubt that, after the agreement was formed initially by Mr Taylor and Mr Curry and before the appellant was recruited, Ms Taylor joined the conspiratorial agreement.

3. The crucial issue, in the context of the appellant's conviction appeal, is whether the only reasonable inference open on the whole of the evidence admissible against the appellant, in the relevant context, is that the appellant joined the conspiratorial agreement.  In particular, did the appellant join the conspiratorial agreement by agreeing with, at least, Mr Curry to pervert the course of justice, upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson for deprivation of liberty and violent offences, by pressuring Mr Tonta, by means of threatening, cajoling and intimidating him, to falsely change his statements to police?  It is necessary to evaluate and weigh the whole of the evidence admissible against the appellant, in the relevant context, for the purpose of determining whether that was the only reasonable inference.

4. It is significant, in examining the relevant evidence, that:

   (a)the trial judge directed the jury, in substance, that the alleged conspiracy was an agreement to pervert the course of justice by pressuring Mr Tonta, by means of 'threatening, cajoling and intimidating' him, to falsely change his statements to police; and

   (b)the formulation 'threatening, cajoling and intimidating' embodied three separate and distinct means that were conjunctive.

5. The concept of 'cajoling' is materially different from 'threatening' and 'intimidating'.  The word 'cajoling' means, relevantly, coaxing or persuading someone to do something, including by gentle coaxing or persuasion.  The ordinary and natural meaning of 'cajoling' does not include coaxing or persuading the person by threats or intimidation.

6. The concept of 'threatening' means, relevantly, making express or implied threats for the purpose of inducing someone to do something.

7. The concept of 'intimidating' means, relevantly, inducing someone to do something by threatening the person or otherwise causing fear in the person as to the consequences if the person does not do the thing.

8. We turn to examine the relevant evidence, in the relevant context, as to whether the appellant joined the conspiracy.

Conviction appeal: relevant evidence as to whether the appellant joined the conspiracy

1. The relevant evidence as to whether the appellant joined the conspiracy is set out or summarised in Mitchell JA's reasons.  We will not repeat the relevant evidence, as set out or summarised in Mitchell JA's reasons, except to the extent necessary to explain our reasons.

1. Between 12.45 pm and 2.24 pm on 11 August 2018, iMessages were exchanged between the appellant and a mobile telephone number ending in 994 (994 Number).  The appellant's mobile telephone listed the 994 Number as belonging to Mr Curry.[109]  On this occasion it was Mr Curry's partner or girlfriend, Vanessa Houng, who was communicating with the appellant.[110]  The communications were as follows:[111]

   [109] Trial ts 865 - 867.

   [110] Trial ts 1548 - 1549.

   [111] Exhibit 36 (Blue/Green AB 228 - 229).

   994 NO:  Hey Gary my partner said the guy said he can't come today coz community corrections said he can't go on weekends so is it possible to have him write the statement at his hse [sic] or he said he be able to come on Tuesday?

   MR RODGERS:  Yes that's fine

   994 NO:  Which one the house or after weekend

   MR RODGERS:  Where the house?

   994 NO: It's bassendean

   MR RODGERS: I might be able to get there tomorrow arvo what's the address but if I can't then Tuesday would be fine

   994 NO: It's [address] but if you can let me know as my partner would like to speak with you first. Thanks

   MR RODGERS:  No worries I'll let you know tomorrow lunchtime if I can make it[.]

1. The appellant's response 'Yes that's fine' to the question whether it was 'possible to have him write the statement at his [house]' clearly indicates that the appellant already knew with whom he would be meeting and why he would be meeting with him and taking the statement.

2. The only reasonable inferences are that by 11 August 2018:

   (a)the appellant had agreed with Mr Curry that the appellant would meet with Mr Tonta and take a statement from Mr Tonta; and

   (b)the appellant knew why he would be meeting with Mr Tonta and why he would be taking the statement.

3. Another feature of the iMessages exchanged between the appellant and the 994 Number on 11 August 2018 is that Mr Curry wanted to speak with the appellant before the appellant met with Mr Tonta.  A further feature of those communications is that they are inconsistent with the ordinary and natural expectation that if Mr Tonta had wanted to give a statement to or consult with the appellant then Mr Tonta would have contacted and made arrangements with the appellant.

4. It is apparent from the meetings and communications which occurred later between the appellant and Mr Tonta that as at 11 August 2018 the appellant had not met, spoken to or communicated with Mr Tonta.

5. The only reasonable inferences, from the communications summarised at [197] ‑ [203], [206] ‑ [217], [219] ‑ [224] and [226] of Mitchell JA's reasons and from the matters we have referred to at [88] ‑ [91] above, are that:

   (a)Mr Curry had retained the appellant;

   (b)Mr Curry was arranging the meeting between Mr Tonta and the appellant;

   (c)the appellant was reporting to Mr Curry;

   (d)Mr Curry was paying the appellant's fees;

   (e)the appellant was not Mr Tonta's lawyer; and

   (f)the appellant told Alvin Emelien (who was Mr Tonta's community corrections officer) a lie (that went solely to the appellant's credit) when he said to him on 27 August 2018 that he was Mr Tonta's new lawyer.

6. The statement signed by Mr Tonta at his meeting with the appellant on 27 August 2018, which is set out at [227] of Mitchell JA's reasons, exculpated Mr Noormets, but implicated Mr Taylor and Ms Atkinson in the alleged offending.

7. The only reasonable inferences from the content of the statement signed by Mr Tonta on 27 August 2018, in the context of the meeting on 27 August 2018 between the appellant and Mr Tonta, the communications summarised at [202], [206], [210], [213] ‑ [217], [223] ‑ [224], [226], [229] and [233] ‑ [235] of Mitchell JA's reasons and the matters we have referred to at [88] ‑ [92] above, are that as at 27 August 2018:

   (a)the appellant knew that Mr Taylor (being the Steve Taylor referred to in the statement), Mr Noormets (being the Luke referred to in the statement) and Ms Atkinson (being the Jess, who was Steve Taylor's partner, referred to in the statement) had been charged with serious offences involving deprivation of liberty and violence in relation to Mr Tonta; and

   (b)the appellant knew that the purpose of Mr Tonta meeting with him was for the appellant to prepare and for Mr Tonta to sign a statement in which Mr Tonta recanted his complaint to police about at least Mr Noormets' involvement in the offending with which Mr Taylor, Mr Noormets and Ms Atkinson had been charged.

8. Between 3.15 pm and 3.17 pm on 27 August 2018, the following exchange occurred between Mr Curry's mobile telephone number ending in 788 (788 Number) and the appellant:[112]

   [112] Exhibit 37 (Blue/Green AB 231).

   MR RODGERS:  He just left

   MR CURRY:  Ok thanks

   MR CURRY:  Everything all good?

   MR RODGERS:  Yep might need another visit though to tidy it up as he doesn't get much time out

   MR CURRY:  Ok I'll call you once I drop him off[.]

9. A feature of that communication is that the appellant was reporting to Mr Curry that '[e]verything [was] all good'.  The only reasonable inference, in the circumstances, is that 'all [was] good' because Mr Tonta had signed the statement which the appellant had prepared and in the statement Mr Tonta had recanted his complaint to police about Mr Noormets.  Another feature of that communication is that the appellant did not consider that his meeting and conversations with Mr Tonta were private or confidential as between the appellant and Mr Tonta.  Rather, the appellant considered that he was entitled to reveal to Mr Curry anything and everything that had happened at the meeting.

10. The only reasonable inference, having regard to the previous communications between Mr Tonta and the appellant, the previous communications between Mr Curry and the appellant and the meeting between Mr Tonta and the appellant on 27 August 2018 (including Mr Tonta's evidence at trial about that meeting), is that the appellant knew, at least by 27 August 2018, that Mr Curry had not retained the appellant to obtain a truthful statement from Mr Tonta.  Rather, the appellant knew that Mr Curry had retained him to obtain a statement in which Mr Tonta recanted his complaint to police and exculpated at least Mr Noormets, irrespective of the truth.

11. Also, the only reasonable inference, having regard to the appellant's status as an experienced criminal lawyer, the previous communications between Mr Tonta and the appellant, the previous communications between Mr Curry and the appellant and the meeting between Mr Tonta and the appellant on 27 August 2018 (including Mr Tonta's evidence at trial about that meeting), is that the appellant knew, on 27 August 2018, that the statement signed by Mr Tonta at the meeting on 27 August 2018 contained materially false statements; that the materially false statements exculpated Mr Noormets; and that the materially false statements would significantly impact upon Mr Tonta's credibility in relation to his complaint against Mr Taylor and Ms Atkinson.

12. On about 30 August 2018, the appellant went to Mr Manera's office.  The appellant said, in effect, to Mr Manera, 'Here [is] a statement from the victim in the [Luke] Noormets matter'.  The appellant then gave Mr Manera the handwritten statement which Mr Tonta had signed on 27 August 2018.[113]

    [113] Trial ts 651 - 652.

13. It is apparent, having regard to the context and the evidence as a whole, that, in giving Mr Tonta's statement to Mr Manera, the appellant was acting in accordance with instructions from Mr Curry.  Mr Tonta did not authorise the appellant to give Mr Tonta's statement to Mr Manera.  Indeed, at the material time, Mr Tonta did not know that the appellant proposed to give or had given the statement to Mr Manera.

14. From 6 to 11 September 2018 there were a series of communications between Mr Curry's 788 Number and the appellant and between Mr Tonta and the appellant.  The relevant substance of those communications is set out at [250] ‑ [251], [253] ‑ [254], [256], [258], [260] and [262] of Mitchell JA's reasons.

1. It is apparent from the communications between Mr Curry and the appellant at 2.10 pm, 2.14 pm and 2.15 pm on 7 September 2018, having regard to the context and the evidence as a whole, that it was unnecessary for the appellant to enquire of Mr Curry as to the identity of 'the boys' who were 'stressing about it' because the appellant knew that 'the boys' included Mr Taylor.  Also, it is apparent from those communications that the appellant was acting in accordance with Mr Curry's instructions and not Mr Tonta's instructions.  Further, the only reasonable inference from those communications, in the context of the previous communications between Mr Curry and the appellant and between Mr Tonta and the appellant and the meeting between Mr Tonta and the appellant on 27 August 2018 (including Mr Tonta's evidence at trial about that meeting), is that by 7 September 2018 the appellant knew that at least Mr Taylor and Mr Curry wanted him to take another statement from Mr Tonta which exculpated Mr Taylor and Ms Atkinson (in addition to Mr Noormets) and that at least Mr Taylor and Mr Curry wanted Mr Tonta to make another statement as soon as possible.

2. The only reasonable inference, having regard to the communications between Mr Curry and the appellant and between Mr Tonta and the appellant from 29 August 2018 to 11 September 2018, in the context of the previous communications between Mr Curry and the appellant and between Mr Tonta and the appellant and the meeting between Mr Tonta and the appellant on 27 August 2018 (including Mr Tonta's evidence at trial about that meeting), is that before the appellant's meeting with Mr Tonta on 11 September 2018 the appellant knew that Mr Curry was pestering Mr Tonta to meet with the appellant as soon as possible for the purpose of giving the appellant another statement that would exculpate Mr Taylor and Ms Atkinson (in addition to Mr Noormets).

3. Mr Tonta met with the appellant in his office on 11 September 2018.  Mr Tonta wore a covert recording device.  Relevant passages from the transcript of the recording are set out at [264] ‑ [273] of Mitchell JA's reasons.

4. It is apparent from the interaction between the appellant and Mr Tonta at the meeting on 11 September 2018 that:

   (a)Mr Tonta told the appellant that Mr Curry had said that he 'needed to … change [some] things' in the statement Mr Tonta had signed on 27 August 2018;

   (b)Mr Tonta told the appellant that Mr Curry had said 'something along the lines of … to get [Mr Taylor] and [Ms Atkinson] off the hook';

   (c)the appellant told Mr Tonta that he was 'not going to put [Mr Tonta] in a corner' and he was not going to 'force [Mr Tonta]' so that Mr Tonta should 'just say what [he wanted] to say';

   (d)Mr Tonta told the appellant that he did not 'really want to say anything' but 'what [Mr Curry's] wanting is different to what I want';

   (e)Mr Tonta told the appellant that Mr Curry had said to him that 'things had to get changed in [the previous statement] to get [Mr Taylor] and [Ms Atkinson] off the hook';

   (f)Mr Tonta told the appellant that Mr Curry had said that 'basically [the previous statement] needs to get re‑worded so [Mr Taylor] and [Ms Atkinson] are …';

   (g)Mr Tonta told the appellant that 'if I don't want to … change [the previous statement] to where [Mr Taylor] and [Ms Atkinson] are off the hook, … what's [Mr Curry] going to …';

   (h)Mr Tonta told the appellant that 'there's not much more like I want to say' but 'I think [Mr Curry is] pushing me to say more';

   (i)the appellant suggested to Mr Tonta that Mr Tonta might be in another place, for example he 'might go to Hong Kong', when the trial of Mr Taylor, Mr Noormets and Ms Atkinson was held; and

   (j)the appellant told Mr Tonta that a witness statement was merely a piece of paper of no significance and that at the trial Mr Tonta could avoid implicating Mr Taylor, Mr Noormets and Ms Atkinson by saying whatever he wanted, whether his evidence was in the statements he had given to police or not.

5. The appellant's statements to Mr Tonta at the 11 September 2018 meeting that the appellant was 'not going to put [Mr Tonta] in a corner' and that the appellant was not going to 'force [Mr Tonta]' so that Mr Tonta should 'just say what [he wanted] to say' were made after Mr Tonta had told the appellant that Mr Curry had informed Mr Tonta that Mr Tonta 'needed to … change things' in the statement Mr Tonta had given to the appellant on 27 August 2018 so that 'Tails [that is, Mr Taylor] and Jess [that is, Ms Atkinson] [were] off the hook'.  The only reasonable inference from that statement by the appellant to Mr Tonta, in the context of the previous communications between Mr Tonta and the appellant and between Mr Curry and the appellant and the meetings between Mr Tonta and the appellant on 27 August 2018 and 11 September 2018 (including Mr Tonta's evidence at trial about those meetings), is that the appellant knew, at least by 11 September 2018, that Mr Curry had applied pressure to or exerted pressure upon Mr Tonta to give a statement to the appellant in which Mr Tonta recanted his complaint to police and exculpated Mr Taylor, Mr Noormets and Ms Atkinson.

6. When Mr Tonta referred to Mr Curry at the 11 September 2018 meeting, the appellant did not ask Mr Tonta who Mr Curry was, why Mr Curry was concerned with the statement Mr Tonta had signed on 27 August 2018 or why Mr Curry wanted Mr Tonta to 'get [Mr Taylor] and [Ms Atkinson] off the hook'.  The only reasonable inference, in the circumstances, is that the appellant already knew about all of those matters.

7. When Mr Tonta asked the appellant at the 11 September 2018 meeting, 'what if I don't want to say, if I don't want to … change it to where [Mr Taylor] and [Ms Atkinson] are off the hook, … what's [Mr Curry] going to, is he', the appellant replied, relevantly, 'I don't know', 'Its entirely a matter for you' and 'All I'm here for is for you to tell me what you want to say'.  The appellant did not advise Mr Tonta that if he was being pressured by Mr Curry then he should complain to the police.  The only reasonable inference, having regard to the previous communications between Mr Tonta and the appellant and between Mr Curry and the appellant and the meetings between Mr Tonta and the appellant on 27 August 2018 and 11 September 2018 (including Mr Tonta's evidence at trial about those meetings), is that the appellant knew, at least by 11 September 2018, that Mr Tonta felt under pressure from Mr Curry to give a statement in which Mr Tonta recanted his complaint to police and exculpated Mr Taylor and Ms Atkinson (in addition to Mr Noormets), and the appellant was unconcerned about that matter.  Also, the appellant did not advise Mr Tonta that he should not sign any statement that is untruthful.  The only reasonable inference, having regard to the previous communications between Mr Tonta and the appellant and between Mr Curry and the appellant and the meetings between Mr Tonta and the appellant on 27 August 2018 and 11 September 2018 (including Mr Tonta's evidence at the trial about those meetings), is that the appellant knew, at least by 11 September 2018, that Mr Curry had retained him to obtain a statement in which Mr Tonta recanted his complaint to police and exculpated Mr Taylor and Ms Atkinson (in addition to Mr Noormets), irrespective of the truth.

1. On 7 November 2018, police executed a search warrant at the appellant's office.  Relevant passages from the transcript of the recording of the execution of the search warrant are set out at [284] ‑ [292] of Mitchell JA's reasons.

2. It is apparent that the appellant told a number of deliberate lies when the police executed the search warrant at his office.  All but one of the lies were relevant only to the appellant's credibility.  The lies that went solely to the appellant's credibility were of significance in evaluating the weight, if any, to be given to his exculpatory assertions to police.

3. The appellant also told a deliberate lie by saying to police that the first time Mr Curry had contacted him was in connection with an application by Mr Curry for bail.  That application for bail related to Mr Curry's arrest on 4 October 2018 for an unrelated matter.  The appellant became involved in the bail application at that time.  The truth was that Mr Curry and the appellant had been in contact with each other in connection with Mr Tonta and Mr Tonta's complaint about offending against him by Mr Taylor, Mr Noormets and Ms Atkinson since, at the latest, 11 August 2018.  At the trial the State relied upon that lie as a 'consciousness of guilt' lie.

4. There was a proper basis in the evidence for the jury to find that the appellant's deliberate lie, as to the first time Mr Curry had contacted him, was told out of a consciousness of guilt.  In particular, the lie revealed knowledge by the appellant of at least an aspect of the charged offence and the appellant knew that had he told the truth he would have implicated himself as a party to an unlawful agreement with at least Mr Curry to procure a false statement from Mr Tonta that exculpated Mr Taylor, Mr Noormets and Ms Atkinson.

5. At the trial Mr Tonta gave evidence about his meeting with the appellant on 27 August 2018.  Relevant passages from the transcript of Mr Tonta's evidence are set out at [303] ‑ [310] of Mitchell JA's reasons.

6. Mr Tonta gave evidence that material parts of the statement he signed on 27 August 2018 were false.[114]

   [114] Trial ts 252 - 255.

7. The jury had the significant advantage of evaluating the credibility and reliability of Mr Tonta's evidence and of receiving and considering the whole of the evidence as it was adduced during the trial.  That advantage is not shared equally by this court reading the transcript.  However, we are satisfied, on our review of the trial record and having regard, in particular, to the objective evidence obtained from telecommunications records and electronic recordings, that there was a proper basis for the jury to find that Mr Tonta's evidence was truthful and reliable in relation to the facts and circumstances of the alleged offence.

Conviction appeal:  its merits

1. As we have mentioned:

   (a)Although the offence of conspiracy is complete upon the making of the agreement, the conspiracy continues while the agreement is being performed.  The offence does not come to an end once the agreement has been made.  The conspiracy continues until the criminal purpose has been achieved or the agreement has been terminated.  A consequence of the offence of conspiracy being complete upon the making of the agreement is that repentance, lack of opportunity and failure are irrelevant, and withdrawal is relevant to mitigation only.

   (b)After a conspiracy is formed, another person may agree with the original conspirators that he or she will join the conspiracy.

   (c)The acts done by the alleged conspirators do not constitute the conspiracy.  Rather, the acts done are merely the evidence from which the agreement may be inferred.

   (d)An accused may become criminally responsible as a conspirator merely by becoming a party to the agreement.  It is not essential that the accused personally perform the acts that are necessary to achieve the criminal purpose.

   (e)It is not essential that all of the parties to a conspiracy communicate directly with each other.  For example, there may be one conspirator at the centre who communicates with each of the other conspirators individually and, by that means, establishes an agreement by all of the conspirators to achieve the same criminal purpose.

   (f)The existence of a conspiracy must invariably be proved by circumstantial evidence; that is, by inference from the conduct of the alleged conspirators and other facts.

2. In the present case, as we have mentioned, the trial judge's directions conveyed to the jury, in substance, that the conspiracy alleged by the State was an agreement to pervert the course of justice, upon the prosecution of Mr Taylor, Mr Noormets and Ms Atkinson for deprivation of liberty and violent offences, by pressuring Mr Tonta, by means of threatening, cajoling and intimidating him, to falsely change his statements to police.

3. We are satisfied, on our review of the trial record, that the State proved beyond reasonable doubt that the role of the appellant and his co‑accused in relation to Mr Tonta was as follows:

   (a)Mr Taylor's role involved the instigation of the original conspiratorial agreement he made with Mr Curry.

   (b)Mr Curry's role was, first, to pressure Mr Tonta, by threatening, cajoling and intimidating him as necessary, to falsely change his original statements to police; secondly, to recruit the appellant to meet with Mr Tonta for the purpose of taking a statement or statements from Mr Tonta in which Mr Tonta falsely changed his original statements to police for the purpose of exculpating Mr Taylor, Mr Noormets and Ms Atkinson; and, thirdly, to report to Ms Taylor on progress.

   (c)Ms Taylor's role was to act as an intermediary between Mr Taylor, who remained in custody, and Mr Curry, who was no longer in custody; and to ensure that Mr Curry performed his role.

   (d)The appellant's role was, first, in his capacity as a lawyer, to take instructions from Mr Curry; secondly, in his capacity as a lawyer, to meet with Mr Tonta for the purpose of taking a statement or statements from Mr Tonta in which Mr Tonta falsely changed his original statements to police for the purpose of exculpating Mr Taylor, Mr Noormets and Ms Atkinson; and, thirdly, in his capacity as a lawyer, to use Mr Tonta's false statement or statements to achieve the purpose of exculpating Mr Taylor, Mr Noormets and Ms Atkinson.

1. In addition, evidence of statements or acts of alleged co‑conspirators may also be admitted for purposes which do not involve proving the truth of any assertion or implied assertion contained in the statements or declarations.  Those statements or acts may rather be led as circumstantial evidence supporting an inference that a conspiratorial agreement exists.  The coincidence of statements or acts of different people may be such as to give rise to an inference that they are the outcome of a conspiratorial agreement or are themselves a manifestation of mutual consent to carry out a common purpose.  Evidence led for this purpose does not infringe the hearsay rule and admission of evidence for this purpose does not require implied authority making the acts and words of one person the acts and words of another.[358]

   [358] Ahern (93 - 94).

Credibility and reliability of Mr Tonta's evidence

1. As was recognised at trial, acceptance of the credibility and reliability of the essential parts of Mr Tonta's evidence was critical to acceptance of the prosecution case.  Of particular importance for the State's case against the appellant was Mr Tonta's account of his discussions with the appellant on 27 August 2018 (see [303] - [310] above).

2. There were good reasons for the jury to approach Mr Tonta's evidence with caution.  Plainly he was not a person of good character.  He had an extensive criminal record, including offences involving lying to police.  When sentenced for other offences, Mr Tonta received a discount for future cooperation in giving evidence against the four alleged co‑conspirators in the appellant's trial (see [319] - [320] above).  Further, there was a significant risk of misunderstanding or faulty recollection in Mr Tonta's descriptions of conversations, of which there were no reliable contemporaneous records.

3. However, notwithstanding these reasons for caution, it was open to the jury to accept the essential aspects of Mr Tonta's evidence, including his account of discussions with the appellant on 27 August 2018, as credible and reliable.  There was nothing inherently improbable in Mr Tonta's account.  He was not demonstrated to have lied to the court in any respect.  There was no challenge to his evidence of the assault and detention committed by Mr Taylor, Mr Noormets and Ms Atkinson on 12 June 2017. 

4. Further, Mr Tonta's account of events was generally corroborated by records of telephone conversations and text messages, and covert recordings of in-person conversations.  Those records and recordings demonstrated Mr Tonta's evidence to be a generally reliable.  Such discrepancies that existed concerned relatively minor matters and were mistakes that would not be unexpected of an honest and generally reliable witness.  The principal examples are Mr Tonta's failure to recall that he telephoned the appellant and Mr Emilien on the morning of 27 August 2018 (see [213] - [214], [297] and [322] above).

5. The Facebook messages sent by Mr Tonta to Ms Lyall (see [316] ‑ [318] above) were consistent with Mr Tonta's evidence that he had thought about changing his statement for Ms Lyall's benefit and that of her child, but that he was acting under coercion when he actually did so.  While the messages suggested a desire of Mr Tonta to change his statement of his own volition, there was a large body of other evidence that it was Mr Curry rather than Mr Tonta who was pressing for the statement to be made.  No doubt the first of Mr Tonta's messages to Ms Lyall, when it came to Mr Taylor's attention, was the genesis for what followed.  But the evidence independent of Mr Tonta's uncorroborated oral testimony shows that Mr Curry was pressuring a reluctant Mr Tonta to sign a changed statement which exonerated Mr Taylor, Mr Noormets and Ms Atkinson.

6. To have found the appellant guilty, in accordance with the trial judge's directions (see [327] - [328] above), the jury must have been satisfied that Mr Tonta had told the truth about the essential aspects of his evidence on which the State relied.  For the reasons explained above, it was open to the jury to do so.  This court's assessment of the State's case must proceed on the basis that the essential aspects of Mr Tonta's evidence were properly assessed by the jury to be credible and reliable.

Proving the existence of the alleged conspiracy

1. In my view, once Mr Tonta's evidence is assessed to be credible and reliable in its critical aspects, there is ample evidence to support an inference that Mr Taylor, Ms Taylor and Mr Curry agreed that Mr Curry would threaten and intimidate Mr Tonta to get him to make a false statement.  Further, in my view, that is the only reasonable inference open on the evidence considered as a whole.  I see no other reasonable explanation for Mr Curry's conduct in pressuring Mr Tonta to sign a changed statement and for the recorded communications between Mr Taylor, Ms Taylor and Mr Curry.

2. The real question in this appeal is whether the evidence established, beyond reasonable doubt, that the appellant joined in this agreement.

Proving the appellant agreed to procure a false statement from Mr Tonta

1. I am also of the view that, once Mr Tonta's evidence of the conversation with the appellant on 27 August 2018 is accepted, it was open to the jury to find that the only reasonable inference to be drawn from all the evidence was that the appellant agreed with at least Mr Curry to procure a false statement from Mr Tonta.

2. The appellant's participation in that agreement is, in my view, the only reasonable explanation for the appellant's approach to the 27 August 2018 meeting.  The appellant did not say anything to Mr Tonta about his need to be truthful.  He rather started the meeting by explaining that Mr Tonta was there to 're-explain' his account so that the main two charges against Mr Taylor and others were dropped (see [303] above).  The appellant would 'reword' what Mr Tonta told him as the appellant was preparing the statement, so that it was not Mr Tonta's true account of the events (see [305] above).  The appellant prepared a statement which was materially false and told Mr Tonta to sign the statement without Mr Tonta having read the notes (see [306] above).  The meeting ended with the appellant telling Mr Tonta not to identify anyone when the matter went to trial (see [310] above). 

3. The conduct described in the previous paragraph is only consistent with the appellant seeking to obtain a false statement from Mr Tonta.  Recorded communications made it clear that the appellant was taking his instructions from Mr Curry rather than Mr Tonta.  In these circumstances, the irresistible inference is that the appellant agreed with at least Mr Curry that a false statement would be obtained from Mr Tonta to exculpate Mr Taylor, Mr Noormets and Ms Atkinson.

4. Other objective evidence also supported the inference that the appellant agreed to procure a false statement from Mr Tonta with the intention of perverting the course of justice, and tended to exclude any other reasonable explanation:

   1.The appellant's conduct in passing the statement to Mr Noormets' lawyer, without Mr Tonta asking him to do so, indicates that the appellant intended that the statement would be used to derail the prosecution of Mr Taylor and others.

   2.The clear lies that the appellant told Mr Emilien and Ms Austin as to the purpose of his meetings with Mr Tonta (see [215] and [261] above) indicate the appellant's intended subterfuge.  While these lies were not left to the jury as an implied admission of guilt, the appellant's conduct was part of the circumstantial evidence from which an agreement to procure a false statement, to be used to exculpate Mr Taylor, Mr Noormets and Ms Atkinson, could be inferred.

   3.The appellant gave advice to Mr Tonta at the second meeting, which took place on 11 September 2018, as to how Mr Tonta could avoid implicating Mr Taylor, Mr Noormets and Ms Atkinson if he gave evidence at trial (see [271] - [273] above).  That advice was consistent only with an intention to procure false statements in Mr Tonta's oral evidence.

   4.The appellant's clear lie to police as to when he first met Mr Curry (see [288] above) was an implied admission that the appellant had attempted to procure a false statement from Mr Tonta at Mr Curry's direction.  If the plan was simply to obtain a true statement from Mr Tonta, then there would be no reason for the appellant to lie to police about the instructions he received from Mr Curry.  This was properly seen as a lie, which an innocent person would not tell, being told because the appellant appreciated that the truth would implicate him in an agreement with Mr Curry to obtain a false exculpatory statement from Mr Tonta.

5. At trial, the appellant relied on the fact that the statement obtained from Mr Tonta on 27 August 2018 did not exonerate Mr Taylor or Ms Atkinson.  Reliance was also placed on the fact that, in the recorded conversation on 11 September 2018 where Mr Tonta expected to be presented with a statement to sign, the appellant did not prepare a statement for Mr Tonta.  In my view, these aspects of the evidence were not inconsistent with the prosecution case.  It was apparent that the appellant was not prepared simply to write an account he had invented for Mr Tonta to sign, but rather required Mr Tonta to provide the account, which he would write down.  It was understandable that the appellant would take that approach, so that he could say that he prepared the statement based on what Mr Tonta had told him.  It might also be thought that a plan which involved Mr Tonta signing a statement into which he had no input would quickly unravel when authorities asked questions of Mr Tonta about the statement.  Further, even though the statement obtained on 27 August 2018 did not exonerate Mr Taylor, a radical change in Mr Tonta's account would (as a criminal lawyer would appreciate) impact on his credibility in a manner that could well lead the prosecuting authorities to conclude they could not rely on his evidence.

6. For the above reasons, once the critical aspects of Mr Tonta's evidence were accepted to be credible and reliable, a jury could be satisfied (and I am satisfied) that the only reasonable inference open on the evidence considered as a whole is that the appellant agreed with at least Mr Curry to procure a false statement from Mr Tonta.

Proving the appellant agreed that Mr Tonta would be pressured

1. In my view, the point at which the State's case necessarily fails is in proving that the appellant agreed that Mr Tonta would be pressured (in the sense of threatened, cajoled or intimidated) to provide a false statement.  In my view, it was not open for the jury to conclude that was the only reasonable inference supported by the evidence considered as a whole.

2. The references to cajolery in the prosecutor's submissions and the trial judge's directions was problematic if the term 'cajole' is given its ordinary dictionary meaning.  The primary definition of the term 'cajole' in the Macquarie Dictionary is to 'persuade by flattery or promises' or to 'coax'.  If that is the intended meaning, then it is difficult to see how pressure might be placed on a person by cajolery.  Further, the concept of cajolery would seem to be quite different from threats or intimidation. 

3. However, for present purposes the issue is not the adequacy of the direction but whether the verdict was supported by the evidence.  There was no evidence that anyone sought to persuade Mr Tonta to do anything by flattery or promises.  Nor did the State point to any evidence from which the existence of an agreement to persuade Mr Tonta by flattery or promises could be inferred.  In my view, the jury could not be satisfied beyond reasonable doubt that there was a conspiracy to persuade Mr Tonta to give a false statement by cajolery (if that term is used in its ordinary sense).

4. The question is then whether the evidence was capable of proving, beyond reasonable doubt, that the appellant was a party to the agreement that Mr Curry would threaten or intimidate Mr Tonta to get him to make a false statement.

5. It was not suggested at trial that the appellant ever did anything himself to threaten or intimidate Mr Tonta into giving a false statement.  Nor was there any direct evidence at trial that the appellant was aware that Mr Curry was doing so.

6. The evidence did show that the appellant knew that:

   1.Mr Tonta had been subjected to a serious assault and that persons had been charged in relation to the offence.

   2.Mr Tonta's appointments with the appellant were being arranged by Mr Curry rather than Mr Tonta.

   3.Mr Curry drove Mr Tonta to and from the appointment on 27 August 2018.

   4.The iMessage sent by Mr Curry to the appellant on 7 September 2018 indicated that 'the boys are stressing about' the appellant going to see Mr Tonta (see [250] above).

   5.The appellant never asked Mr Tonta why he wanted to change his statement.

7. These facts may have made a person in the appellant's position suspicious about why Mr Tonta wanted to change his statement.  However, they do not appear to me to be a secure foundation for being satisfied that the appellant necessarily knew that Mr Curry was threatening or intimidating Mr Tonta.

8. The high point of the State's case seems to me to be that the appellant did not appear to react when Mr Tonta told him, at the meeting on 11 September 2018, that Mr Curry had said Mr Tonta needed to change his statement.  The appellant's initial response, as I hear parts transcribed as indistinct, is:

   MR RODGERS: Well, clarify a bit or something on there.  Um, I don't know what this [indistinct] but issues they've got with it but basically they want some clarification or something, about things.

   When Mr Tonta intimates that he is concerned about what Mr Curry will do, the appellant responds 'I don't know.  I don't know.  It's entirely a matter for you' (see [268] above).  

9. This evidence is capable of supporting an inference that the appellant was aware that Mr Tonta was under pressure from Mr Curry to change his statement so as to exonerate Mr Taylor and Ms Atkinson.  However, the evidence does not appear to me to be sufficient to lead to the conclusion that the only reasonable inference was that the appellant knew that Mr Tonta was being pressured by threats or intimidation.  In that regard, it is significant that the appellant repeatedly tells Mr Tonta at this meeting that whether he changes his account is a matter for him.  Having listened to the recording of the conversation on 11 September 2018, I am unable to conclude that there was any implied threat in the appellant's statements that was apparent from the manner in which they were made.

10. The State was unable in argument to point to much more than the inferences that might be drawn by a solicitor taking a statement from the victim of violent offending.  Accordingly, it was argued that, where that victim was put into contact with the solicitor by a third party in order to change his statement and absolve those who were initially accused by the victim, there is a clear inference that the victim was acting under threats of further violence.

11. There is no doubt that inference was open.  The difficulty with that way of viewing the case is that other inferences were also open, including that the victim may have been acting out of self-interest (because the victim no longer wished to be involved in those criminal proceedings) or the victim may well have been acting as a result of an inducement (for example, because of a bribe).  Those alternatives are equally open on the evidence in the present case, considered as a whole.

12. In any event, it was not sufficient for the State to prove that the appellant knew or suspected that Mr Tonta was being pressured by threats or intimidation to change his statement.  The critical fact for the State to establish was that the appellant agreed, with at least Mr Curry, that Mr Tonta would be threatened or intimidated into making a false statement.  In my view, the evidence considered as a whole was not capable of excluding the reasonable inference that the appellant, while agreeing to help procure a false statement from Mr Tonta, did not agree that Mr Tonta would be threatened or intimidated for that purpose.

13. In my view, the co-conspirator's evidence rule does not materially assist the State in proving this aspect of the agreement.  Mr Taylor, Ms Taylor and Mr Curry did not make any express or implied statements to the effect that the appellant was aware of, or agreed to, the pressure to be placed on Mr Tonta.  I note that the statement of Mr Curry to Ms Taylor on 17 September 2018, to the effect that the appellant had been told by 'Robbie' to 'get it done' (see [281] above), was not relied on by the State in its case against the appellant.[359]

    [359] Trial ts 1261.

14. This is not a case where a reasonable doubt experienced by this court on its review of the trial record can be assuaged by the jury's advantage in seeing and hearing the evidence as it was given.  I have proceeded on the basis that the jury correctly accepted the critical aspects of Mr Tonta's evidence to be credible and reliable.  Once that assumption is made, the question concerns the inferences to be drawn from primary facts largely established by uncontroversial evidence.  This court is not in a substantially inferior position in determining the inferences open on the evidence.  Indeed, the lack of reference in the parties' addresses to the jury as to the content of the agreement that the State had to prove the appellant entered into places this court at an advantage, in that it is in a better position to focus its attention on the critical issue.

Conclusion

1. For the above reasons, the evidence before the jury was not capable of establishing, beyond reasonable doubt, that the appellant entered into the agreement alleged by the State at trial, which was said to constitute a conspiracy to pervert the course of justice.  That is, it was not open to the jury to conclude that the only reasonable inference open on all of the evidence was that the appellant was a party to an agreement to threaten, cajole or intimidate Mr Tonta to give a false statement.

2. The evidence was capable of establishing, beyond reasonable doubt, that the appellant entered into the different agreement initially charged in the indictment.  That was simply an agreement to procure a false statement from Mr Tonta.  Such an agreement would also be an agreement to pervert the course of justice.  Given the trial judge's direction, which identified an agreement to threaten, cajole or intimidate Mr Tonta into giving a false statement, the jury must have been satisfied that the appellant entered into an agreement which had the procurement of a false statement as an element. 

3. However, in my view it would be unfair to the appellant for this court to uphold his conviction on the basis that the evidence was capable of establishing an agreement to procure a false statement from Mr Tonta.  The appellant was entitled to defend the charge on the basis that the agreement alleged by the State in particulars was an agreement to threaten, cajole or intimidate Mr Tonta into giving a false statement.  He was entitled to make decisions (such as how to cross-examine witnesses and whether to give or adduce evidence) based on the case put by the State. 

4. Further, the trial judge sentenced the appellant on the basis that he agreed that Mr Tonta would be threatened, cajoled or intimidated into giving a false statement.  Her Honour was required to sentence the appellant on that factual basis because, given the way in which the jury had been directed, the finding that the appellant agreed that Mr Tonta would be threatened, cajoled or intimidated was inherent in the jury's verdict.[360]  That was undoubtably an aggravating feature of the offending.  If this court upheld the guilty verdict on a basis which was different from the way the State framed its case at trial, it would involve the appellant being punished by reference to an aggravating factor that was not established by the evidence.  This illustrates the unfairness that would be involved in this court permitting the State to depart from the case it presented at trial.  Counsel for the State on appeal properly did not seek to do so.  She conceded that the State had to prove that the appellant agreed that a false statement would be procured from Mr Tonta by way of threats, cajoling or intimidation (see [347] above).

   [360] See Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].

1. The State is bound by the forensic choice it made at trial, which was to allege that the appellant agreed that Mr Tonta would be pressured (in the sense of being threatened, cajoled or intimidated) into giving a false statement.  That was the agreement which the State ultimately alleged.  The State had to prove that the appellant entered into that agreement and the appellant was entitled to be acquitted if the evidence could not establish entry into that agreement.

2. Where the prosecution alleges a conspiracy to achieve multiple unlawful purposes and fails to prove only one of those purposes, then an accused may still be convicted so long as the proved conspiracy is not substantially different from the alleged conspiracy.[361]  Subject to that qualification, however, the prosecution may choose what agreement it will allege in charging a conspiracy but must prove the agreement alleged.[362]

   [361] R v Lacey (1982) 29 SASR 525, 532; Saffron v The Queen (1988) 17 NSWLR 395, 431 - 433; R v Cox [No 4] [2006] VSC 60; (2006) 165 A Crim R 345 [14] - [26].

   [362] Gerakiteys v The Queen (1984) 153 CLR 317, 320 - 321, 333 - 334; R v Maria [1957] St R Qd 512, 523, 528; Marinovich v The Queen (1990) 46 A Crim R 282, 314 - 315; R v Caldwell [2009] VSCA 41; (2009) 22 VR 93 [54], [71].

3. In the present case, in my view, an agreement to pressure (by threatening, cajoling or intimidating) a witness into giving a false statement is substantially different from an agreement merely to procure a false statement.  Here, the State ultimately chose to allege an agreement to threaten, cajole or intimidate Mr Tonta into giving a false statement.  It had to prove that the appellant entered into that agreement before the appellant could be found guilty.  The State would not prove the appellant's entry into the alleged agreement by proving merely that the appellant entered into an agreement to procure Mr Tonta to give a false statement.

4. It follows that the sole ground of appeal against conviction is established.  An extension of time in which to appeal should be granted on the basis that it is necessary to avoid a miscarriage of justice.  Leave to appeal should be granted.  The appeal against conviction must be allowed, the conviction set aside, and a verdict of acquittal substituted.

Appeal against sentence

1. Given the success of the appellant's appeal against conviction, the appeal against sentence has been rendered otiose.  While I would grant an extension of time in which to appeal, leave to appeal should be refused and the appeal dismissed on that basis.

Orders

1. For the above reasons, the following orders should be made in the appeals:

CACR 149 of 2021: appeal against conviction

1.The appellant's application for an extension of time in which to appeal is granted.

2.Leave to appeal is granted on the sole ground of appeal.

3.The appeal is allowed.

4.The appellant's conviction on the sole count charged in District Court of Western Australia indictment IND 1987 of 2019 is set aside and a judgment of acquittal is substituted.

CACR 148 of 2021: appeal against sentence

1.The appellant's application for an extension of time in which to appeal is granted.

2.Leave to appeal on the sole ground of appeal is refused.

3.The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

EM

Associate to the Honourable Justice Mitchell

12 APRIL 2023