Regina v Bayeh [1999] NSWCCA 82

New South Wales Court of Criminal Appeal CITATION : Regina v Bayeh [1999] NSWCCA 82 revised - 13/08/99 FILE NUMBER(S) : CCA 60610/97 HEARING DATE(S) : 12 April 1999 JUDGMENT DATE : 20 April 1999

PARTIES : Regina v Louis Bayeh JUDGMENT OF : Grove J at 1; Kirby J at 29

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 95/11/0998 LOWER COURT JUDICIAL OFFICER : Stewart ADCJ

COUNSEL : P. Ingram (Crown) P. Bodor QC (Applicant) SOLICITORS : R. Gray (Crown) Hovan & Co (Applicant) CATCHWORDS : Criminal Law & Procedure - Sentence - Evidence - Use of material by Judge inadmissible against the appellant but tendered on his behalf and of other material tendered in trial but not in sentence proceedings ACTS CITED : Royal Commissions Act 1923 Criminal Appeal Act 1912 DECISION : Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL

60610/97

GROVE J KIRBY J

Tuesday 20 April 1999

REGINA v LOUIS BAYEH

JUDGMENT

1 GROVE J : This is an application for leave to appeal against the severity of sentence imposed by Stewart ADCJ following the conviction of the applicant upon a single count of attempting to pervert the course of justice contrary to s 319 of the Crimes Act. Sentence was imposed on 14 November 1997 and consisted of a total of four years penal servitude divided into minimum and additional term components of two years each, the minimum term commencing on 4 July 1997 and expiring on 3 July 1999. 2 The offence had its origins in an event on 4 January 1990 outside the home of the applicant when a handgun was discharged in the direction of a young man. The applicant was charged in respect of this. He was committed for trial from Local Court to the Parramatta District Court. Ten days before the scheduled trial date he made an application to vacate the trial date and for the grant of commission to take evidence overseas from an intended witness. In support of those applications he swore an affidavit annexing a statement purportedly signed by one Bazzi admitting that it was Bazzi and not the applicant who had fired the weapon. Investigations showed that Bazzi was not in Australia on 4 January 1990. The application to take evidence on commission was withdrawn and the applicant pleaded guilty to the firearm offence on 30 September 1993. 3 The falsity of the material contained in the affidavit in support of the application to vacate the trial date and take evidence on commission was the basis of the present charge. Upon arraignment the applicant pleaded not guilty and the trial proceeded before Stewart ADCJ and a jury. At the conclusion of the Crown case the applicant's then counsel made an application that a verdict of acquittal be directed. That motion failed. An adjournment was then sought so that further instructions could be sought from the applicant by his legal advisers. Upon resumption the Court was informed that the applicant wished to plead guilty. The jury was returned to Court and the applicant pleaded guilty upon re-arraignment in their presence. The jury found the applicant guilty in accordance with this plea. 4 The applicant was remanded in custody upon conviction on 4 July 1997 but the sentencing proceedings were prolonged substantially to enable the applicant to advance matters which he sought to rely upon in mitigation of sentence. These included matters of assistance to authorities along the lines for which "discounts" from sentence might be obtained: Crimes Act s 442B; R v Cartwright 1989 17 NSWLR 243; R v Gallagher 1991 23 NSWLR 220. 5 In his remarks on sentence on 14 November Stewart ADCJ included these observations: "It is clear that the prisoner cunningly organised this conspiracy himself, albeit with the acquiescence of Bazzi; but the prisoner made a fatal mistake. Bazzi could not have committed the crime or have had anything to do with it. He could not have been present when the crime was committed as was falsely sworn and could not have done what he said he did, because on the night the hand gun was fired by Bayeh, Bazzi was in Lebanon. That this is so is without doubt. Department of Immigration records including documents in Bazzi's own handwriting clearly shows he left Australia on 6 December 1989 and did not return until 17 January 1990. When these facts are analysed it is easily discernible that this is no spur of the moment or haphazard crime. Every step of the way was planned. It was an on-going attempt to pervert the course of justice and work the system to the prisoner's advantage; but this time unfortunately for the prisoner the system itself worked, and to his disadvantage." 6 It was not suggested that those remarks by his Honour were unjustified. 7 The application for leave to appeal against sentence was listed for hearing in this Court on Friday 3 April 1998 which, it can be observed, is a little over three months after the conclusion of the sentencing proceedings. That hearing date was vacated by the Registrar on the motion of the applicant in order to permit, it appears, the collation and presentation of assertedly relevant material to justify further "discount" by reason of assistance to authority of which the sentencing judge had not been made aware. The application was relisted before this Court (differently constituted) on Friday 29 May 1998. In connection with that scheduled hearing affidavits were filed by the applicant and others evidencing that the applicant had not told his then legal representatives of his approaches to the New South Wales Crime Commission or the Independent Commission Against Corruption. He has explained that upon making those approaches he was advised that he should maintain secrecy. At the hearing on 29 May it appeared to the Court that there had been developments since the applicant appeared for sentence and there was produced to the Court a letter of that date from the Independent Commission Against Corruption which concluded with the paragraph: "The Commission has not yet completed its investigation nor prepared a report pursuant to s 74 of the Act in relation to the investigation and as such the Commission is unable to comment on (the applicant's) allegations at this stage." 8 Thereupon senior counsel then appearing for the applicant sought further adjournment. The Crown did not oppose that application. 9 The matter was relisted before this Court (coincidentally constituted as at present) on Friday 18 September 1998. The foreshadowed report by the Independent Commission Against Corruption had not been made. The applicant through senior counsel again applied for an adjournment. This was opposed by the Crown. The adjournment was granted for reasons then given which it is unnecessary to repeat in entirety. 10 On that occasion the observation was made that "in essence, the applicant wishes to claim that assistance that he has given to law enforcement bodies about which the sentencing judge was not informed, alternatively, was not fully informed, has been such that he is entitled to some reduction of sentence. Important amongst the matters which the applicant wishes to ventilate is assistance which he claims to have given to an inquiry presently being conducted by the Independent Commission Against Corruption". 11 The application was relisted before this Court on Monday 12 April 1999. Under cover of a letter dated 17 December 1998 the Independent Commission Against Corruption sent to the Registrar of this Court a letter accompanied by an extract of a chapter in a report by a commissioner relating to investigations into allegations made by the applicant concerning a Member of Parliament. The letter stated that there was a recommendation that the content of the report be drawn to the attention of this Court in circumstances where the Commission had previously provided a letter referring to the applicant having provided information to the Commission. That letter is obviously the one referred to the Court on 29 May 1998. 12 It should be recorded that neither senior counsel for the applicant today (who did not appear when the matter was before the Court in May and September last) nor the Crown Prosecutor sought to tender or otherwise put before the Court the content of the chapter which had been forwarded to the Registrar. 13 As is apparent from the foregoing record, the substantial delay in the matter coming on for hearing is a result of the applicant's own motions for adjournment. 14 No written submissions supplementary to those filed in respect of the scheduled hearing for 3 April 1998 were presented and senior counsel adopted those advanced by his predecessor in several respects. Extracted from those submissions the following grounds were relied upon in each instance asserting that the sentencing judge fell into error by: (iii) Giving undue weight to his criticism of good character references which were not relied upon by the applicant in the proceedings; (iv) Giving insufficient weight to sentencing statistics issued by the Judicial Commission. (v) Giving undue weight to the applicant's past life style and character as evidenced by transcript from the Wood Royal Commission. (vii) Giving insufficient weight to the applicant's assistance to the authorities, and in the event that the Court came to resentence: (vi) Giving insufficient weight to the applicant's medical condition. Other numbered grounds were not pressed. 15 The first matter raised on behalf of the applicant concerned sentencing statistics. In his remarks on sentence Stewart ADCJ had observed: "I am of the view that what was said by Badgery-Parker J in Taouk's case, about sentencing trends and patterns is still the case. No sentencing pattern in these cases has yet emerged. I say this in the light of statistics on sentence from the Judicial Commission of New South Wales 1996 for both perverting the course of justice and attempting to do so. These statistics indicate what percentage of prisoners were sent to prison, what percentage were given recognizances under s 558 of the Crimes Act and so forth, but without knowing the facts both objective and subjective in the cases themselves mentioned in the statistics, I do not find this raw data to be of great assistance in the sentencing process." 16 The challenge to this observation was sought to be supported by some remarks of Levine J in R v Karageorge CCA Unreported 17 July 1998 where his Honour had said (although the decision of the Court was to quash the conviction and send the matter back for a new trial and not to intervene on sentence) that "……….. the passage of time from the decision in Taouk has permitted the gathering of data that in some way can be of useful reference." Thereafter his Honour recorded some imprisonment, percentage, case numbers and other statistics. He went on to hypothesize what he would have regarded as an appropriate sentence in the appeal then under consideration. 17 It needs to be observed that what Levine J postulated was that there were some data that could be of useful reference in some way. His Honour by no means suggested that there was a definitive gathering of material either for obligation or guidance of sentencing judges. No doubt the gathering of data does provide a resource for more useful guidance than its absence but his Honour's remarks do not demonstrate that Stewart ADCJ fell into error. An attempt was made to elaborate the raw data by extracting some detail of the cases upon which the Judicial Commission statistics had been based. It is not necessary to recite the material that was collated and handed to the Court and it suffices to say that the differences, which might readily be expected between circumstances of offence and offender, are such that they do not in my view lead to any conclusion that the assessment reached in the exercise of discretion by Stewart ADCJ is tainted by error. 18 The next matter argued on behalf of the applicant involved reference to testimonials which were sought to be categorized as "not relied upon" in the proceedings. These testimonials were in evidence before his Honour having been tendered as exhibits in the Crown case in the trial. It is accurate that they were not specifically tendered by the applicant to be relied upon in the sentencing proceedings. Nevertheless, they were before his Honour and there was no legal impediment to his making use of them. His Honour made observations which indicated that he regarded these glowing testimonials as unreliable and it was not suggested that he could not so find given the state of the evidence. In respect of one of them Stewart ADCJ remarked that the reference was really "of little assistance" to him as the sentencing judge. It is plain that his Honour did not use these testimonials to enhance the culpability of the applicant or to increase his sentence. His remarks show that, in the possibly mistaken impression that the applicant might have wished to rely upon these fulsome testimonials, he did not accept them as providing a basis for mitigating sentence. Nothing in his Honour's dealings with these references gives rise to intervention by this Court. 19 In the remarks on sentence reference was made to the applicant's prior life style. It was said that the applicant worked for a number of years as a doorman at clubs and discos and his Honour commented that that description was euphemistic and that whilst he worked for a number of years as a doorman at such establishments "it went a lot further than that". Complaint was therefore made that his Honour was essentially taking into account material which led him to take an inappropriately cynical view of the applicant. That approach is said to be particularly evident in the transcript of proceedings held in camera at the request of the applicant and by consent of the Crown. The reason for this related to matters which were then of current confidentiality and no criticism of the procedure adopted was made. His Honour's knowledge of these matters of the applicant's background was extracted from a reading of certain transcript of evidence given by the applicant in the Royal Commission into the NSW Police Service by Wood J (as he then was). The purpose of inviting Stewart ADCJ to read this material was to support the applicant's claim for "discount" for assistance to authorities. It was said without challenge that that evidence was given in the light of the knowledge that s 17 of the Royal Commissions Act 1923 applied. It provides: "17 (2) An answer made, or document or other thing produced by a witness to or before the commission shall not, except as otherwise provided in this section, be admissible in evidence against that person in any civil or criminal proceedings." 20 The exceptions scheduled in s17(3) are not applicable. 21 Counsel referred to Hartmann v Commissioner of Police 1997 91 A Crim R 141 which was a case essentially dealing with the scope of s 17(2) to include disciplinary proceedings before the Government and Related Employees Appeal Tribunal. In such a tribunal proceedings although disciplinary in nature are manifestly brought "against" a respondent. 22 In the present case no tender of the answers given by the applicant (evidenced by the transcript) was made "against the applicant". His own counsel tendered the transcript. The argument advanced was that in those circumstances the presiding judge was limited to using the material for the purpose of the applicant and that it was erroneous for him to rely on it for any other purpose. In short, as I understood the submission, although the material was notionally tendered as a result of the invitation by senior counsel for the applicant to the presiding judge to read that material, he could only use the content to support the claim for discount of sentence and could not use it for the purpose of making an assessment of the background of the applicant. 23 This argument effectively raised a point of principle and the Court constituted pursuant to s 6AA of the Criminal Appeal Act is unsuitable for the resolution of a disputed issue of general principle. I recognize that the words of prohibition in the statute are "admissible in evidence against" and not "tendered against". It is, I apprehend, somewhat unusual for any litigant to place before a court material which is expressly inadmissible against that litigant but if it is chosen to tender such material then we were referred to no authority for the proposition that that litigant could impose restrictions upon its use. The argument of restricted utility now advanced was not foreshadowed by any specific reference in written submissions or otherwise. The Court raised the absence with senior counsel. It was recognized that, as a result of the adjournments which the applicant had sought, the minimum term component of his sentence is scheduled to expire in less than three months time. The applicant through senior counsel indicated that he did not wish further adjournment of the appeal to enable a full bench to be constituted unless bail was granted in the meantime. It would not be appropriate for the Court in effect to enter into negotiations as to the terms of adjournment. It was specified that the applicant expressly did not abandon the argument on this point and counsel was invited to continue his submissions to their conclusion. The situation is less than satisfactory, however this application has been adjourned for over a year and, despite the circumstance that that is a consequence of the applicant's own doing, the impending expiry of the minimum term component of sentence should not be ignored. The balance of justice would be served by proceeding even though it would have been desirable that the Crown have an opportunity to consider this unforeshadowed issue. 24 I am unpersuaded that the mere fact that the material was before his Honour for one purpose intended by the applicant placed any restriction upon his Honour's use of the material. Unless special rules apply, evidence generally which is before a tribunal is available for all legitimate purposes. Further I find that in the particular circumstances no breach of s 17(2) of the Royal Commissions Act 1923 is manifest and this Court should not intervene in respect of the use by Stewart ADCJ of the material that he was expressly invited to read. 25 Once it is recognized that the material was available to be used by his Honour, there is abundant justification for his findings and observations about the applicant. In no way do they manifest any cynicism which I took to be an expression by counsel as a euphemism for bias or prejudice. I would reject this ground. 26 This brings me finally to the assertion concerning the weight to be given to the applicant's assistance to authorities. As the record of adjournments which I have chronicled shows the multiple adjournments were sought in order to enable the applicant to rely upon material which he had given to the Independent Commission Against Corruption. In the event nothing was put before the Court in order to enable any assessment of whether any such information was either of value or not. So far as other matters of asserted assistance by the applicant, I see no error in the way in which they were assessed by the learned sentencing judge. 27 As the criminality of the applicant which is manifest in the remarks which I have earlier recited demonstrates this was a serious offence within its category. The sentence was not, in my view manifestly excessive. 28 I propose that application for leave to appeal be granted but the appeal dismissed and sentence confirmed. 29 KIRBY J: I agree with the order proposed and the reasons given for that order. **********