Scaffidi-Gennarino v The Queen
[2002] WASCA 46
•13 MARCH 2002
SCAFFIDI-GENNARINO -v- THE QUEEN [2002] WASCA 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 46 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:145/2001 | 13 FEBRUARY 2002 | |
| Coram: | MALCOLM CJ ANDERSON J WHEELER J | 13/03/02 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | VINCENZO SCAFFIDI-GENNARINO THE QUEEN |
Catchwords: | Criminal law Perjury False statement in affidavit sworn by solicitor in support of application for stay of warrant of execution Whether false testimony material to a question in the judicial proceeding Criminal law Direction to jury Character evidence |
Legislation: | Criminal Code, s 124 |
Case References: | Nil BRK & Ors [2001] WASCA 161 Christianos v R, unreported; CCA SCt of WA; Library No 9217; 17 December 1991 Eaton v The Queen, unreported; CCA SCt of WA; Library No 930056; 8 February 1993 MacKenzie v R (1996) 190 CLR 348 Melbourne v R (1999) 198 CLR 1 Menner v R, unreported; CCA SCt of WA; Library No 970702; 15 December 1997 Policy Nominees Pty Ltd v Stuart McDougall & Anor, unreported; SCt of WA; Library No 8768; 12 March 1991 Wedd v R (2000) 115 A Crim R 205 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : SCAFFIDI-GENNARINO -v- THE QUEEN [2002] WASCA 46 CORAM : MALCOLM CJ
- ANDERSON J
WHEELER J
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Perjury - False statement in affidavit sworn by solicitor in support of application for stay of warrant of execution - Whether false testimony material to a question in the judicial proceeding
Criminal law - Direction to jury - Character evidence
Legislation:
Criminal Code, s 124
(Page 2)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr M T Trowell QC & Mr W J Chesnutt
Respondent : Mr R E Cock QC
Solicitors:
Appellant : Mark Andrews & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
BRK & Ors [2001] WASCA 161
Christianos v R, unreported; CCA SCt of WA; Library No 9217; 17 December 1991
Eaton v The Queen, unreported; CCA SCt of WA; Library No 930056; 8 February 1993
MacKenzie v R (1996) 190 CLR 348
Melbourne v R (1999) 198 CLR 1
Menner v R, unreported; CCA SCt of WA; Library No 970702; 15 December 1997
Policy Nominees Pty Ltd v Stuart McDougall & Anor, unreported; SCt of WA; Library No 8768; 12 March 1991
Wedd v R (2000) 115 A Crim R 205
(Page 3)
1 MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Anderson J with which I am in entire agreement.
2 ANDERSON J: On 4 October 2001, the appellant was convicted after trial of four counts of perjury in affidavits which he swore in Local Court proceedings in February 1998 in his capacity as solicitor for a party engaged in litigation in that court. He appeals against the convictions on two grounds which allege errors of law on the part of the trial Judge, firstly in directing the jury on the elements of the offence of perjury and, secondly in directing them on the way they could use evidence of the appellant's good character.
3 The facts giving rise to the charges in the indictment are as follows.
4 On 25 September 1995, a Mr David Taylor was involved in a motor vehicle accident when another vehicle ran into the back of his vehicle. Nearly two years later, in June 1997, he received a solicitor's letter of demand for payment of the cost of repairs to the other vehicle. He wished to resist this claim and his companion, a Ms Cross, telephoned the law firm of D'Angelo & Partners and spoke to a law clerk, as a result of which on 4 August 1997 the firm was retained to act for Mr Taylor on payment of a retainer of $500, for which a receipt was issued. D'Angelo & Partners promptly wrote to the other solicitors denying liability and intimating a counterclaim. However, it seems they did nothing more and on 16 September 1997, Mr Taylor received a visit from the Local Court bailiff who served a Local Court summons upon him claiming to recover damages in the form of repair costs amounting to $2,597.63. Mr Taylor telephoned D'Angelo & Partners and there was a conversation, following which Mr Taylor drove to the offices of D'Angelo & Partners, and gave the summons to the same law clerk. Of course, it was the firm's duty to enter an appearance on behalf of Mr Taylor, and take the necessary steps to ensure that a defence and counterclaim was filed in good time. The firm did not do so and Mr Taylor received notification from the Local Court of an appointment fixed for 16 December 1997 to have damages assessed. He delivered this notification to D'Angelo & Partners.
5 The assessment of damages came on before Ms Barbara Lane SM on 16 December 1997 and the appellant, who was a solicitor employed by D'Angelo & Partners, appeared and informed her Worship that he had been instructed in the matter only the day before, and had not had time to prepare the appropriate documents or obtain detailed instructions, but that Mr Taylor wished to defend the claim. The Magistrate pointed out that
(Page 4)
- the time within which a defence might be filed had long expired. She adjourned the matter until 31 December 1997, and advised the appellant, in effect, that if Mr Taylor wished to apply for leave to defend the claim out of time, affidavits should be filed explaining the delay.
6 The matter came before Ms Lane SM again on 31 December 1997, as arranged. There was still no entry of appearance and no affidavits had been filed. The appellant appeared and informed the Magistrate that he was "not in much better position than last time that I appeared I'm afraid" and that "we haven't been given any instructions". The Magistrate told the appellant that, as he had not been instructed in the matter, he had no right to be heard and she proceeded to assess damages at $2,593.67, and ordered that judgment be entered against Mr Taylor with costs to be taxed.
7 Mr Taylor had heard nothing since he had delivered the notification of the appointment for assessment of damages to D'Angelo & Partners, and he was not informed of the outcome of the proceedings of 31 December. The next he knew of the matter was on 2 February 1998, when the bailiff again attended, this time to levy execution by warrant of execution. Mr Taylor telephoned D'Angelo & Partners in the bailiff's presence and there was a discussion between the firm and Mr Taylor and between the firm and the bailiff. The bailiff agreed to postpone the levy of execution for a short time.
8 D'Angelo & Partners then took steps to attempt to remedy their dereliction of duty. They filed an application for an order that the assessment of damages be set aside (it should have been an application to set aside default judgment), for an order that Mr Taylor be granted unconditional leave to defend and counterclaim and for an order that the warrant of execution be stayed. The form of application is not in evidence, but it seems that it was made returnable on 24 February 1998. As well, D'Angelo & Partners made an urgent application for an interim order for a stay of the warrant of execution returnable before the Deputy Chief Stipendiary Magistrate, Ms Elizabeth Woods SM, on 11 February 1998. To support the interim application for a stay of the warrant of execution, the appellant swore two affidavits, one on 6 February 1998 and a supplementary affidavit on 10 February 1998. In the principal affidavit of 6 February 1998, the appellant made three false statements, or, more accurately, two false statements, the second of which was made twice. He deposed in par 11 of the affidavit to the effect that Mr Taylor had given the appellant formal instructions on 30 December 1997 to act as his solicitor in the matter. In truth, the appellant had not spoken to Mr Taylor
(Page 5)
- on 30 December 1997. The firm had received instructions to act for Mr Taylor many weeks before. In par 13, he deposed to the effect that on 31 December 1997, when he had appeared before Ms Lane SM, he had informed her that he had received formal instructions from Mr Taylor to act as his solicitor, but the Magistrate did not accept that he had been properly instructed. In truth, he had told Ms Lane SM that he did not have instructions - that he had not been given instructions and was appearing without instructions. This false statement was repeated in par 14 of the same affidavit.
9 It is these falsely sworn statements in this affidavit which are the subject of the first three counts on the indictment. The fourth count of perjury arises from the supplementary affidavit sworn on 10 February 1998 in which by par 8 the appellant purported to refer to and repeat "paragraphs 13, 14 and 15 of my original affidavit" and thereby repeated the false statement made in pars 13 and 14 of that affidavit.
10 The application for an interim order staying the warrant of execution was refused by Ms Woods SM on 11 February. The substantive application to set aside the assessment of damages (really to set aside the default judgment), and for leave to defend, and for a permanent stay of the warrant of execution, came on before Ms Lane SM on 24 February 1998 and it was dismissed.
11 The charges against the appellant were preferred pursuant to s 124 of the Code which creates the offence of perjury in the following terms (emphasis supplied):
"Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised in that proceeding, is guilty of a crime which is called perjury."
12 In each of the counts in the indictment, the "judicial proceeding" is identified as "an application to stay a warrant of execution". It is as well to set out count 1 by way of example (with emphasis supplied):
"On 6 February 1998 at Perth Vincenzo Scaffidi-Gennarino having been duly sworn, made an affidavit for the purpose of instituting a judicial proceeding between David Allan Taylor and Gearhart Australia Ltd, namely an application to stay a warrant of execution, and at paragraph 11 in the said affidavit
(Page 6)
- wilfully swore falsely to the effect that on 30 December 1997 David Allan Taylor had advised Vincenzo Scaffidi-Gennarino that he should inform the Court that he was now instructed to act on behalf of David Allan Taylor: And that the said false statement was material to a question intended to be raised in the said proceeding."
13 The trial Judge, Williams DCJ, gave the jury a correct direction in standard terms on the elements of the offence of perjury, including what is meant in s 124 by "material to any question then depending in that proceeding". It was, of course, necessary that he clearly identify for the jury the judicial proceeding in which the Crown alleged the false statements were made in order that the jury might properly consider the materiality of the false statements. As to that, his instruction was in the following terms (with emphasis added):
"The testimony about which the crown complains is the affidavits. They are exhibits 7 and 8. I have taken you to the paragraphs in relation to those affidavits: in count 1 they complain about paragraph 11; in count 2, paragraph 13; in count 3, paragraph 14; and in count 4 which is the affidavit of 10 February, paragraph 8. You can see that from the indictment. It is stated in the indictment.
The crown says that the accused was duly sworn and that he made an affidavit for the purpose of instituting a judicial proceeding, namely, an application to stay a warrant of execution, so that's the proceeding about which the crown is talking about; the affidavit is made on those dates, it's in respect to proceedings on 24 February, but the crown says the perjury occurs when the accused swears the affidavit."
14 His Honour made several other references to the nature of the proceedings and to the date of them in which he described the proceedings as the application to stay the warrant of execution and the date of them as being 24 February.
15 On behalf of the appellant, it was submitted to us that the "judicial proceeding" in which the false testimony was given was really the proceeding to set aside judgment rather than the proceeding to stay the warrant; so that the "question then depending" within the meaning of s 124 of the Code was any question arising in the application to set aside judgment. Hence, it was argued, the false statements had to be material to
(Page 7)
- such a question, and the trial Judge should have so directed the jury and he did not. He wrongly directed the jury that the judicial proceedings with which they were concerned was the application to stay the warrant.
16 In my opinion, it is quite clear that the two affidavits in question were sworn in proceedings which included an application to stay the warrant of execution and that was one of the matters before the Court on 24 February 1998. This clearly appears from the transcript of the hearing before Ms Lane SM on that date (see appeal book vol 2 page 299). It also clearly appears from the same transcript that the affidavits were relied on generally in those proceedings.
17 Insofar as this ground of appeal depends on the proposition that the jury was misdirected as to the identity of the "judicial proceeding" and should have been directed that the "judicial proceeding" with which they were concerned was the application to set aside the default judgment, the ground of appeal fails.
18 As I understood his submission, senior counsel for the appellant put an alternative argument. He submitted that even if the judicial proceeding in which the false statements were made included the application to stay the warrant, realistically and in substance, this was ancillary to the process of having the judgment set aside and the element of materiality was to be judged by reference to the main proceedings; the question being whether the false testimony was material to a question arising in the proceedings to set judgment aside. It was submitted that none of the false statements charged in the indictment was capable of being material to any question arising in the application to set aside judgment and the case should not therefore have gone to the jury.
19 Insofar as this submission depends on the proposition that the false statements were not material to a question arising in the application to set aside the default judgment, it must be rejected. They were highly material to a question arising in that application, in my opinion. By his affidavits, the appellant was seeking to persuade first Ms Wood SM on 11 February and then Ms Lane SM on 24 February that default judgment had been entered on 31 December 1997 because at the hearing on that date Ms Lane SM wrongly refused to accept that the appellant had been properly instructed by Mr Taylor, and wrongly refused to hear the appellant on behalf of Mr Taylor. The appellant's authority to appear on behalf of Mr Taylor before Ms Lane SM on 31 December 1997 and what he had told her Worship at that hearing about his authority to appear were central to his submission that Ms Lane SM was wrong to proceed with the
(Page 8)
- assessment as if Mr Taylor had simply failed to appear. It is those material matters to which the false testimony directly related.
20 I would not uphold the first ground of appeal. Before leaving it, however, I should perhaps add that senior counsel for the appellant also submitted, although not very enthusiastically, that there was an absence of materiality because Ms Lane SM knew the appellant's affidavits were false. I am not persuaded that the materiality of false testimony depends in any way on whether or not it is believed by the judicial tribunal.
21 By ground 2 of his appeal, the appellant pleads that:
"The learned trial Judge erred in law in directing the jury as to the use it might make of good character evidence by suggesting that such evidence could not prevail against evidence of guilt which the jury found to be 'convincing' when that was not the appropriate standard of proof to be applied."
22 Evidence of good character was called on behalf of the appellant and the direction given by the trial Judge as to this evidence was in the following terms:
"You should bear in mind the accused's previous good character when considering whether you are prepared to draw from the evidence the conclusion of the accused's guilt. You should bear it in mind as a factor affecting the likelihood of the accused committing the offences with which he is charged; and you should consider the accused's previous good character in assessing the credibility of any explanations given by him and his credibility as a witness, but I do need to remind you that persons do commit offences for the first time and that evidence of previous good character cannot prevail against evidence of guilt which you find to be convincing, notwithstanding the accused's previous good character."
23 I have supplied the emphasis in order to highlight the passage from this direction to which the appellant takes exception.
24 Senior counsel for the appellant submitted that the use of the word "convincing" in this part of the summing up invited the jury to apply to the evidence of guilt a standard of proof which was less than proof beyond reasonable doubt. He submitted, in effect (although perhaps not in so many words), that the direction should have been along the following lines:
(Page 9)
- "Evidence of previous good character cannot prevail against evidence of guilt which satisfies you beyond reasonable doubt of guilt."
25 The problem with such a direction is that it is circular and it directs the jury to proceed in two stages in that they should first consider whether they are satisfied beyond reasonable doubt of the defendant's guilt leaving the good character evidence out of account, and then consider whether the evidence of good character creates a reasonable doubt. With due respect, this cannot be the correct approach. The single question for the jury in every criminal trial is whether they are satisfied on the whole of the evidence (including character evidence) of the guilt of the accused, and so satisfied beyond a reasonable doubt. The Judge made it very clear to the jury on a number of occasions during his summing up and at the conclusion of it that they could not bring in a verdict of guilty unless they found every element of the Crown case proven beyond reasonable doubt. I am not persuaded that the form of words used in the charge with respect to evidence of good character watered-down that very clear direction, or would have been understood by the jury to do so.
26 I would not uphold the second ground of appeal and it follows that I would dismiss the appeal.
27 WHEELER J: I have read in draft the reasons for decision of Anderson J. I agree with them and have nothing to add.
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