Appeal Outcome: Special leave refused by the High Court - 11 December 2007 New South Wales Court of Criminal Appeal CITATION: Clarkson v Regina [2007] NSWCCA 70 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 12 February 2007 JUDGMENT DATE: 22 March 2007 JUDGMENT OF: Beazley JA at 1; Sully J at 252; Howie J at 253 DECISION: 1. Appeal against conviction dismissed;; 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed. CATCHWORDS: Criminal law – criminal liability – defence – duress and necessity – whether trial judge erred in ruling defences unavailable – whether trial judge erred in not allowing evidence of defence - Criminal law – section 10(1)(b) Passports Act 1938 (Cth) – elements of offence – use of coincidence evidence - Criminal law – section 184 Crimes Act 1900 (NSW) – elements of offence – personation - whether trial judge erred in directing jury in respect of elements of offence - Criminal law – separate trial – whether raising defence would prejudice accused in joint trial – whether trial judge erred in failing to order separate trial - Criminal law – sentence – individual sentence – whether trial judge erred in accumulating offences for overall sentence - Criminal law – sleep apnoea – occasional sleep periods - whether fair trial - Criminal law – sentence – concurrent sentence – whether trial judge erred in failing to impose wholly concurrent sentence - Criminal law – sentence - remissions – whether trial judge erred in failing to take into account sentence to be served in State with no remissions - Criminal law – sentence – factors taken into account – whether trial judge erred in failing to account for time elapsed since offences committed - Criminal law – sentence – factors taken into account - conditions of imprisonment – whether trial judge erred in failing to take into account protective custody - Criminal law – unfitness to be tried – whether unfitness to be tried raised so as to engage Mental Health (Criminal Procedure) Act 1990 (NSW) - physical illness - unfitness to be tried raised before trial - Statutes – application of statute - whether same conduct may be charged under different Acts – irrelevant whether lesser offence exists Crimes Act 1914 (Cth) Pt IB Div 6; ss 16, 16G, 20B, 20BA, 428E(1)(b) Crimes Act 1900 (NSW) s 184 Crimes Act 1928 (Vic) s 426 Crimes Act 1958 (Vic) s 393 Crimes (Administration of Sentences) Act 1999 (NSW) s 265 Criminal Code Act 1995 (Cth) Criminal Appeal Act 1912 (NSW) s 5A Criminal Code (WA) s 631 Criminal Lunatics Act 1800 (UK) LEGISLATION CITED: Criminal Procedure Act 1986 (NSW) s 21(2), 29 Evidence Act 1995 (NSW) s 98, 101(2), 108 Jury Act 1977 (NSW) s 22 Mental Health Act 1990 (NSW) s 3, 4, 10 Mental Health (Criminal Procedure) Act 1990 (NSW) Pt 2; ss 5, 6, 7, 8, 10, 11, 14, 16, 17, 18, 22 Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW) Passports Act 1938 (Cth) ss 10(1)(a), (b) Police Act 1990 (NSW) s 204 Representation of the People Act 1949 (12, 13 and 14 Geo 6, c.68) s 47(2) Voters Act (UK) s 2 Road Transport (Driver Licensing) Act 1998 (NSW) s 22 Constitution of Australia s 80 Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36 Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29 Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62 Johnson v The Queen (2004) 78 ALJR 616 Kesavarajah v The Queen (1994) 181 CLR 230 gatayi v The Queen (1980) 147 CLR 1 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Abusafiah (1991) 24 NSWLR 531 R v Bezan (2004) 147 A Crim R 430 R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61 R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319 CASES CITED: R v Hurley and Murray [1967] VR 526 R v Loughnan [1981] VR 443 R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 R v Mostyn (2004) 145 A Crim R 304 R v Presser [1958] VR 45 R v Pritchard (1836) 173 ER 135 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v Rogers (1996) 86 A Crim R 542 R v Sexton (2000) 116 A Crim R 173; [2000] SASC 276 R v Studenikin (2004) 60 NSWLR 1 R v Todd [1982] 2 NSWLR 517 Re Jayden [2007] NSWCA 35 Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 Verma v R (1987) 30 A Crim R 441 Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 Mark Alfred Clarkson (Appellant) PARTIES: Regina (Commonwealth) (First Respondent) Regina (New South Wales) (Second Respondent) FILE NUMBER(S): CCA 2006/1693 COUNSEL: In person (Appellant) P Roberts SC; L Crowley (Regina) SOLICITORS: Commonwealth Director of Public Prosecutions (Regina) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/0900; 02/11/1109 LOWER COURT JUDICIAL OFFICER: Hosking DCJ LOWER COURT DATE OF DECISION: 26 November 2004 - 86 - IN THE COURT OF CRIMINAL APPEAL 2006/1693 BEAZLEY JA SULLY J HOWIE J 22 March 2007 MARK ALFRED CLARKSON v REGINA Judgment 1 BEAZLEY JA: On 26 November 2004, the appellant was found guilty by a jury of a total of 16 offences, being 5 offences contrary to s 10(1)(a) of the Passports Act 1938 (Cth) (the Passports Act); 7 offences contrary to s 10(1)(b) of the Passports Act; and 4 offences contrary to s 184 of the Crimes Act 1900 (NSW) (the Crimes Act). On 11 April 2005, the appellant was sentenced by his Honour Judge Hosking DCJ to a total period of imprisonment of 2 years and 4 months to commence on 26 November 2004, with the appellant to be released on 25 March 2007. 2 The appellant appeals against conviction and seeks leave to appeal against sentence. The appeal and the application for leave to appeal against sentence were heard at the same time as an application for an order in the nature of certiorari and for orders to quash the convictions and sentences and the warrants signed by Hosking DCJ requiring imprisonment, as well as an order for the issue of a writ of habeas corpus (the prerogative writ application). The prerogative writ application was referred to the Supreme Court by an order of Adams J on 4 December 2006. That application has become matter no CA 40803/06 in the Court of Appeal. 3 In addition, there is before the Court of Appeal in proceedings CA 40803/06 a case in which Hosking DCJ stated eight questions of law for the determination of the Court. There is also application for an Order to Show Cause on remitter from the High Court of Australia pursuant to an order Gummow J made on 14 February 2007. That application, which has been merged with matter no CA 40803/06, raises the same issues as those raised on the stated case. 4 The appellant's Notice of Appeal and Application for Leave to Appeal in the Court of Criminal Appeal contained, in total, 48 grounds. Many of these grounds overlap or are repetitive. The stated case comprises eight questions, all of which are to be found in the grounds of appeal. The appellant filed 114 pages of written submissions in support of the appeal and other applications, as well as a number of supplementary submissions and submissions in reply to the Crown submissions. Again, many of the submissions are repetitive. The appellant also made oral submissions. 5 Notwithstanding the overlap and repetition, a number of issues clearly emerged and these were in effect identified by the appellant in his oral submissions. Accordingly, I propose to deal with the matters that were argued orally in the order in which they were advanced by the appellant. I will then deal with any outstanding issues which emerge from the grounds of appeal and which the appellant did not argue orally. The appellant, in his oral submissions, invited the Court to deal with the criminal appeal first, before determination of the questions raised in the stated case and his application for prerogative relief. This course, to which the Crown agreed, was appropriate, as the questions raised in the stated case were entirely covered by the grounds of appeal against conviction, and the outcome of the stated case is dependent upon one of the major issues on the appeal. Because of the cross-over of issues in the two sets of proceedings, this judgment and the judgment of the Court of Appeal in proceedings CA 40803/06 should be read together. Issue 1: the s 10(1)(b) offences – the third party applications: counts 1 to 4 and 10 to 12: grounds 28 and 29 6 The appellant was charged with seven offences under s 10(1)(b) of the Passports Act. Four of those offences were committed prior to 26 May 2001, at which time s 10(1)(b) provided: "10(1) A person shall not knowingly or recklessly make any false or misleading statement, whether orally or in writing: … (b) in support of an application by another person for an Australian passport or for a renewal or endorsement of an Australian passport." 7 Section 10(1)(b) was amended on 26 May 2001 as part of the harmonisation with the Criminal Code Act 1995 (Cth) (the Criminal Code). In its amended form it provided: "10(1) A person shall not make any false or misleading statement, whether orally or in writing: … (b) in the course of supporting an application by another person for an Australian passport or for a renewal or endorsement of an Australian passport." The amendment did not introduce any substantive difference in the elements of the offence. 8 The maximum penalty for an offence committed under s 10(1)(b) is $5,000 or imprisonment for 2 years. 9 The Crown case in respect of the s 10(1)(b) offences was that, in respect of each offence, the appellant made a false statement in an application for a passport to be issued to another person. The false statement was that the appellant stated on the application form that he had known the person in whose name the application was made for a particular period of time. The persons named on the applications for passports subject of counts 1 to 4 were Virginia Yan (count 1), Kristina Jana Nievens (count 2), Alexanders Ivars Elmas (count 3) and Porsche Francis Lee (count 4). The "identifier" of the applicant on each application was Mark A Clarkson of 10/189 Liverpool Street, Sydney. The individual details in respect of counts 1 to 4 were as follows. 10 Count 1: on 4 April 2000, an application for a passport in the name of Virginia Yan was lodged at Kensington Post Office. It was supported by a birth certificate purportedly issued by the New South Wales Registry of Births, Deaths and Marriages, in the name of Virginia Yan. The birth certificate was false. No such official birth certificate had ever been issued and the details on it were false. 11 Count 2: on 6 April 2001, an application for a passport in the name of Kristina Jana Nievens was lodged at the Broadway Post Office. It, too, was accompanied by a New South Wales birth certificate which had never been issued by the Registry of Births, Deaths and Marriages and the information on which was false. One of the telephone numbers specified on the application was subscribed to by the appellant. The address on the application was a Post Office Box at which during a subsequent search an envelope, addressed to the appellant at that address, was located. 12 Count 3: on 29 May 2000, an application for a passport in the name of Alexanders Ivars Elmas was lodged at the Broadway Post Office. That application was supported by a birth certificate purportedly issued in Victoria, which had never been issued and which recorded false information. The address given for the applicant on the passport application was 4/375 Crown Street, Surry Hills. That address was a Post Office Box, which was rented in the name of Thomas Lacplesis of 10/189 Liverpool Street, Sydney. Thomas Lacplesis was the name used by the appellant in one of the applications which is the subject of one of the offences under s 10(1)(a) of the Passports Act. 13 Count 4: on 7 June 2000, an application for a passport in the name of Porsche Francis Lee was lodged at the Bondi Junction Post Office. It was supported by a birth certificate purportedly issued in Victoria, which had not been issued by the Victorian Registry of Births, Deaths and Marriages and which recorded false information. The appellant, as the identifier of the applicant on this application, gave a telephone number which was subscribed to by a Janis Perkons of 35/63 MacPherson Street, Waverley. This was the address that the applicant Lee nominated as his address on the application. It was also the address that the appellant gave in the applications for passport that he made which are the subject of counts 6 and 7. 14 Counts 1 to 4 were committed prior to the harmonisation of the Passports Act with the Criminal Code on 26 May 2001. 15 The offences alleged in counts 10 to 12 contained the same false statement as in counts 1 to 4, that is, a statement by the appellant that he had known the applicants for a particular period of time. The details of the false statements were as follows: 16 Count 10: on 15 January 2001, an application for a passport in the name of Peter Johan Tango was lodged at the Bondi Junction Plaza Retail Post Office. It was supported by a Victorian birth certificate. The appellant was the applicant's identifier. He specified his address as 10/189 Liverpool Street, Sydney, being the address he nominated on counts 1 to 4. 17 Count 11: on 5 October 2001, an application for a passport in the name of Roman Stinkovoy was lodged at the Camperdown Business Centre Post Office. It was supported by a South Australian birth certificate. The appellant was named as the emergency contact, with a given address of 10/189 Liverpool Street, Sydney. The person who signed as identifier was Jason Edward Papps, which was the name used by the appellant on the passport application the subject of count 9. 18 Count 12: on 4 December 2001, an application for a passport in the name of Jason Eris was lodged at the Punchbowl Licensed Post Office. It was supported by a South Australian birth certificate. The emergency contact and identifier was listed as Stewart Barton. The passport number given for Stewart Barton was the passport number issued pursuant to the matter which is the subject of count 7. 19 The appellant's essential submission in respect of these offences was that the Crown case was fundamentally flawed, in that it had equated the existence of false birth certificates with the appellant having made a false statement. He said that this error was apparent in the Crown's opening to the jury where senior counsel for the Crown explained that the appellant had signed the application of, for example, Virginia Yan, (count 1) stating he had known that person for the specified period. It was the Crown case that that was a false statement because a person with those details, that is Virginia Yan, born on the date stated in the application, did not exist. (Appeal book 226) Later, in the opening, Crown counsel summarised the case in respect of the third party applications in these terms: "… essentially, the allegation in respect of these counts 1 to 4 and count 10 is that the accused made a false statement and the false statement was that he had known the applicant for a particular amount of time and the allegation is that he knew that that was a false statement because no such person with those birth details in fact existed. In terms of counts 11 and 12 … the Crown has to prove that the accused intentionally made a false statement, so the wording has changed, it's intentionally instead of knowingly … and secondly, that the false statement was made in the course of supporting an application by another person for an Australian passport." 20 The Crown's separate reference to counts 11 and 12 was to explain that, notwithstanding the change in the wording of the section, which was due to the harmonisation of the Passports Act with the Criminal Code, the offences were essentially the same. (Appeal book 230-231) 21 Counsel for the appellant at trial applied to have the indictments in respect of the s 10(1)(b) offences quashed. The trial judge rejected the application. His Honour held that what the Crown was seeking to do was to: "… say to the jury that they would be satisfied … that there was no person with the given name of [for example] Virginia Yan born on a particular day specified in a falsified birth certificate in Victoria, and that if the jury is satisfied of that fact beyond reasonable doubt, it follows inevitably that in claiming as alleged that [the appellant] knew that person for a period of 5 years and 6 months that that statement must have been a false statement." (Appeal book 339) 22 The Crown repeated the basis of the case it sought to make under these counts in the closing address to the jury, namely, that the offences had been proved because "no such person with those birth details in fact existed" and his Honour repeated the basis upon which the Crown advanced its case on these counts in his summing-up to the jury. 23 The Crown had relied upon coincidence evidence to prove these charges. It had given notice in writing as required by s 98 of the Evidence Act 1995 (NSW). I have already referred to some of the coincidences in the evidence. In addition, there was evidence that in relation to the birth certificates purportedly issued by the Victorian Registry of Births, Deaths and Marriages, the birth certificate number was not a number format used by that Registry (Appeal book 856). Likewise, in respect of the birth certificates purportedly issued by the Births, Deaths and Marriages Registration Office of South Australia, the evidence was that the number format was not used by that Registration Office (Appeal book 858). In the case of the false New South Wales birth certificates, there was evidence that the registration number shown on the certificate was not a registration number that related to persons by the name of Yan or Nievens (Appeal book 854-855). 24 There was also the coincidence of the use of telephone numbers. For example, in the case of the application in the name of Nievens, the emergency contact was listed as Mark Clarkson of 10/198 Liverpool Street, Sydney, and one of the telephone numbers, namely, 9571 8295, was used in respect of all the passport applications, including those made by the appellant himself, being the subject of counts 5 to 9: s 10(1)(a) offences (Appeal book 855). 25 There was also expert handwriting evidence. The expert document examiner used the passport application form in the name of Lacplesis (count 5) as the base document for his assessment. The expert handwriting evidence established that all of the handwriting on the Lacplesis passport application, except for the "Official Use Only" section, was written by one person. It also established that the author of the Lacplesis passport application was the author of the Clarke, Hardy and Papps applications (Appeal book 859). 26 The expert handwriting evidence further established that the author of the passport application in the name of Lacplesis was the author of the applications for passports in the names of Elmas, Tango, Stinkovoy and Eris, being the offences subject of counts 3, 10, 11 and 12 respectively, as well as being the person who completed the identifier section in the Yan, Nievens and Lee applications, being the subject of counts 1, 2 and 4 respectively. 27 It followed from this evidence that, if accepted, the only inference to be drawn was that the handwriting on the passport application subject of counts 3, 10, 11 and 12 was the appellant's, and that it was the same handwriting on the identifier section of the applications subject of counts 1, 2 and 4 and thus, the handwriting of the appellant. 28 The appellant's case on this issue, both at trial and on appeal, is straightforward. He says that the fact that there were false birth certificates is not conclusive as to whether the appellant had made a false statement contrary to s 10(1)(b). He gave evidence that he knew the persons concerned under those names and had known them for some time (Book 3 p 77). The appellant's counsel addressed the jury to that effect. For example, in relation to the application in the name of Ms Yan, he reminded the jury of the appellant's evidence that Ms Yan had travelled under that name, and on that passport, overseas. The appellant also gave evidence that he had visited the person he knew as Ms Yan, at the Villawood Detention Centre, where she was detained under that name. 29 Counsel for the appellant also pointed out to the jury that, in the case of Ms Nievens, that there was no specific evidence, for example, that she was not in Australia for at least 5 years and 8 months, nor was there evidence as to how long she had called herself Kristina Nievens. Counsel also drew attention to differences in handwriting and the like on the application forms as being indicative of its authenticity. 30 Senior counsel for the Crown conceded that if there had only been one offence involved under s 10(1)(b), it may have been difficult for the Crown to have proved its case. However, when regard was had to the coincidence evidence, the Crown case was not merely that the existence of a false birth certificate established that the appellant had made a false statement. Rather, the coincidence evidence established that the appellant knew that the name on the birth certificate was false, so that he could not have known a person by that name for the stated period of time. Accordingly, there was evidence to support the elements of the offence and the jury had accepted beyond reasonable doubt that the offences had been established. 31 Thus far, I have dealt with this issue on the basis upon which it was argued orally by the appellant. 32 The written submissions in support of these issues had a different focus. That different focus is reflected in the formulation of the grounds themselves. The grounds were expressed in these terms: "28. That the learned Trial Judge erred in law and fact in not discharging the Jury on the Defence Application made after the Crown changed several times the particulars of the False Statement alleged in the Counts preferred pursuant to the Passports Act 1938 [Cth] (Counts 1-12). 29. That the learned Trial Judge erred in law and fact in allowing the Crown to put to the Jury several False Statements to support each count preferred pursuant to the Passports Act 1938 [Cth] (Counts 1-12) every Jury member free to choose one, another or all the False Statements alleged, with no certainty of a unanimous verdict on the False Statement particularised in the Indictment." 33 The appellant argued that the Crown opened to the jury in different terms to the particulars of the charge previously provided to the appellant and then over successive days changed the particulars of the charge. In my opinion, this argument is not correct. Although the Crown did provide particulars in a somewhat expanded form, they were not different in substance. Accordingly, there was no basis for the discharge of the jury as claimed by the appellant. 34 The appellant also complains that he may have been convicted: "… by the Jury finding that the Appellant did not know them by the name they used to apply for the Passport or that he did not know them for the stated period of time or both (but which)." (Appellant's submissions 28.7) The appellant made the same point at para 29.7 of his submissions. 35 The other submissions in support of grounds 28 and 29 are further explications of this central point. To demonstrate this, the appellant made the point that he had known, for example, a Virginia Yan and that it was subsequently ascertained that a person by the name of Kristina Nievens was known to the Commonwealth. 36 However, the Crown case was based on the non-existence of persons named in the passport applications. This has been explained in some detail above. 37 Accordingly, these arguments should also be dismissed. 38 In my opinion, when regard is had to the coincidence evidence, there was sufficient evidence, if accepted by the jury, to establish the elements of these offences. It follows that grounds 28 and 29 should be rejected. Issue 2: s 184 offences: applications for driver licences in false names: counts 13 to 16; grounds 26 and 27 39 Counts 13 to 16 of the indictment alleged that on dates between 13 and 28 June 2000, the appellant pretended to be a named person: namely, Matthew John Clarke – count 13; Thomas Lacplesis – count 14; Michael John Hardy – count 15; and Jason Papps – count 16; with intent to fraudulently obtain property, being a New South Wales driver licence, contrary to the provisions of s 184 of the Crimes Act. 40 Section 184 of the Crimes Act provides: "Whosoever falsely personates, or pretends to be, some other person, with intent fraudulently to obtain any property, shall be liable to imprisonment for seven years." 41 The maximum penalty for an offence under s 184 is a term of imprisonment of 7 years. 42 The formal grounds of appeal that relate to this issue were in these terms: "26. That the learned Trial Judge erred in law and fact in not finding that there was no case to answer in relation to the False Personation Counts (Counts 13-16) in the Indictment and in not directing the Jury to acquit the Appellant on these counts on the Defence application made at the end of the Crown case." 27. That the learned Trial Judge erred in law and fact in directing the Jury as to the elements of the False Personation Counts preferred pursuant to Section 184, of the Crimes Act 1900 (NSW) (Counts 13-16)." 43 The appellant's defence to these grounds was that it is not an offence for the purposes of s 184 to merely apply for a licence in the name of an alias. He contends that when the trial judge rejected his "no case" submission and when directing the jury, in respect of these counts, his Honour erred in law as to the elements of the offence. 44 The evidence in respect of these four charges was that, on the occasions specified in the indictments, the appellant presented himself at a motor registry and applied for a learner driver licence. He filled out an application form in each of the names of Clarke, Lacplesis, Hardy and Papps. The appellant provided a false birth certificate, purportedly issued by the Victorian Registry of Births, Deaths and Marriages in support of each application. Evidence was given that there was no registration of birth in any of the four names and that the birth certificate number on the respective birth certificates was not a number format used by the Victorian Registry. (Appeal book 851) 45 The appellant's contention is that to be guilty of the offence of 'fraudulent personation', the Crown must prove that the person impersonated is an actual person, or at least was once a living person, and not a fictitious person. The appellant had not tried to personate or pretend to be an actual person, but, rather, was adopting an alias when making the applications for the learner driver licence. 46 Following the close of the Crown case, counsel for the appellant at trial applied to his Honour for a verdict by direction on these counts, on the basis that on the evidence, a prima facie case had not been made out. (Appeal book 569) 47 In his judgment on the 'no case' application, the trial judge, having observed that although s 184 had been part of the Crimes Act since its inception, it had not been the subject of any reported decision. His Honour reviewed a body of English authority dealing with personation charges and observed that unless the particular offence referred to a fictitious person: see, for example, the Representation of the People Act 1949 (12, 13 and 14 Geo 6, c.68); s 47(2), it appeared that "ordinarily, personation is limited to the impersonation of someone by a real person living or dead". (Appeal book 572) That, of course, was the appellant's point. He claimed that he had not purported to do so. Rather, he was using an alias. 48 His Honour also referred to modern Australian examples of the offence of personation which restricted the offence to the impersonation of a real person, sometimes to a person of a particular class. He referred to s 204 of the Police Act 1990 (NSW) (now repealed), which provided that it was an offence to impersonate a police officer and s 265 of the Crimes (Administration of Sentences) Act 1999 (NSW) which provides that it is an offence to impersonate a correctional officer. 49 His Honour observed, however, that s 184 of the Crimes Act was in different terms to the offences created by the legislation to which he had referred. Under s 184, the offence was not only falsely personate some other person. Rather, there was an alternative charge provided for in the section, namely, where a person "pretends to be some other person". His Honour considered that the additional words in s 184 must have been intended to serve a purpose and were not included simply as an alternative way of describing the offence of false personation. His Honour considered that the additional words had a similar effect to the provisions of s 2 of the Voters Act (UK) which refers to a person, living, dead or fictitious. His Honour concluded: "In my view, on its proper construction, s 184 creates two separate kinds of offences. One is personation in its historical sense, the other is pretending to be another person who need not have ever existed . It is the latter that the Crown has alleged here to prove the charge that the Crown has brought in each instance." (Emphasis added) (Appeal book 575) 50 His Honour considered that an offence under s 184 comprised three elements; first, that the accused person had pretended to be another person; secondly, that the accused had done so with intent to obtain property; and thirdly, that that had been done fraudulently. His Honour considered that there was sufficient evidence for the Crown to be able to prove each of those elements and thus dismissed the application. His Honour repeated these three elements when directing the jury in respect of these offences (although in doing so he encapsulated the elements of the relevant intent, done fraudulently, together) (Appeal book 810). 51 The appellant also submitted that in his summing-up, the trial judge made a further error, when describing to the jury the first element of the offence. His Honour said that the Crown had to prove, beyond reasonable doubt "that the accused pretended to be another person". It was submitted that his Honour left out the word "falsely", which was an essential ingredient of the offence and, secondly, had substituted the phrase "another person" for "some other person". The last point can be dealt with quickly. There is no difference in meaning between "another person" and "some other person". In each case, the word or phrase simply means a person who is not the person making the application. 52 That leaves the question whether his Honour erred in omitting the word "falsely" when he identified the first element in the offence. The word "pretend" is defined in the Australian Concise Oxford Dictionary to mean "claim or assert falsely so as to deceive". The definition in the Macquarie Dictionary is: "… to put forward a false appearance of … to venture or attempt falsely (to do something)…" 53 It is apparent that the ordinary meaning of the word "pretend" includes the notion that the claim is false. It follows that his Honour would have been engaging in tautology to have used the word "falsely" as the appellant contended was required. It follows that his Honour's direction in his summing-up was not erroneous as alleged. 54 Accordingly, no basis to interfere with the conviction has been established on this issue. 55 Before leaving this particular matter, however, reference should be made to one further submission made by the appellant, namely, that the offence which the appellant had in fact committed, but with which he had not been charged, was an offence under s 22 of the Road Transport (Driver Licensing) Act 1998 (NSW) which provides: "(1) A person must not: (a) by a false statement or any misrepresentation or other dishonest means, obtain or attempt to obtain a driver licence or the renewal of a driver licence, or (b) without lawful authority or excuse, possess a driver licence obtained or renewed using those means. Maximum penalty: 20 penalty units. (2) A driver licence so obtained or renewed is void, and the Authority may alter the driver licence register accordingly. (3) Subsection (1) does not apply to a driver licence receipt issued by another jurisdiction." 56 As I understand the submission, it was that it was apparent from the terms of s 22 that the making of a false statement, such as making a claim in the name of an alias, was captured by the provisions of s 22. This demonstrated that s 184 was directed to different conduct, that is, impersonation of a real person. I have already dealt with this submission above. Further, as the Crown submits, the same conduct may constitute an offence under different Acts, or under different provisions of the same Act. Provided there is evidence that the person has committed the offence charged, then it is open to the Crown to prefer such charge notwithstanding that there is some other: see Butler v Attorney General for the State of Victoria (1961) 106 CLR 268; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. 57 The appellant did not submit that s 22 had repealed s 184 of the Crimes Act nor, in my opinion, was there any implied repeal: see generally Butler v Attorney General for the State of Victoria per Fullagar J at 275 –276. 58 The appellant also pointed out that the penalty provided for by s 22 was a maximum penalty of 20 penalty units, being a penalty of $2,200, as compared to a maximum penalty of 7 years imprisonment in respect of an offence under s 184. The appellant had mistakenly said the maximum penalty under s 22 was 12 months imprisonment. However, that does not detract from the point of the submission, which was to reinforce the earlier submission that the appellant had been charged with the wrong offence and that the seriousness of the criminality of the offence which he had committed was much less than that with which he had been charged. This also indicated that the appellant must have been charged under the wrong offence. 59 However, as I have already indicated, it is possible that the same conduct may constitute an offence under more than one provision of an Act, or under different Acts. Provided that the offence charged has been proved beyond reasonable doubt, it is irrelevant that there may have been some other lesser offence with which the accused person could have been charged. My comments in this regard relate to an appeal on conviction only. The existence of a provision with a lesser penalty may have some relevance in respect of sentence, which is dealt with later in these reasons. Issue 3: availability of defences to the charges in counts 5 to 9: the s 10(1)(a) offences and counts 13 to 16: grounds 11, 13, 16, 17, 18, 19, 20, 21, 22 and 23 60 This issue relates to grounds 11, 13, 16, 17, 18, 19 and 20. The resolution of this issue will also resolve grounds 21, 22 and 23. 61 The appellant contended that although he had admitted most, if not all, of the facts adduced by the Crown in support of counts 5 to 9 (the s 10(1)(a) passport application offences) and counts 13 to 16 (the s 184 application for driver licence offences), he had defences to those charges of self-defence, duress of circumstance and necessity, but that the trial judge had ruled that those defences were not available. His Honour had also ruled that evidence that the appellant sought to adduce in support of those defences was not admissible. 62 It is necessary in the first instance to determine whether the defences as claimed were available, either as a matter of law or fact, in respect of the offences charged. 63 The appellant gave evidence of his background and work history in Melbourne. In the course of that, he identified the existence of two groups or "crews", namely, the "Carlton crew" and the "Williams crew". He gave evidence that he became associated with the "Carlton crew" (Appeal book 607, 628). He then gave evidence of connections to or with certain notorious persons who were or became known criminals, such as Christopher Dale Flannery, who had subsequently disappeared. He also gave evidence about murders and disappearances of persons with whom he was connected in a number of different merchant banking or finance companies. These events related to the 1980s. 64 The appellant then gave evidence of his activities during the 1990s. In the course of giving this evidence, he referred to other notorious Melbourne criminals, including Jason Moran and the killings of and by various notorious criminals. 65 The appellant next gave evidence about events in 2000. At that time, he was living in Sydney, but said he visited Melbourne regularly. He gave evidence that a Frank Benevenuto, regarded in Melbourne as the boss of the "Carlton crew", was killed, and then, a Richard Maladnavic, a person whom the appellant described as a close associate, and who "was watching [the appellant's] back in Melbourne, was very publicly executed" (Appeal book 628). The appellant said that, at that stage, he felt that "someone was trying to send [me] a message". The appellant said that thereafter, he was stalked, and received a number of telephone calls which he said indicated to him that "[I] was not long for this world, that in effect, [I] was next" (Appeal book 629-631). The appellant said that after the death of Maladnavic, and having been stalked, he took precautions. He also referred to Mark Moran, a notorious Victorian underworld figure, being killed, and said, "I knew that the war was going to – the Morans were never going to take that lying down" (Appeal book 636). It appears that Mark Moran, according to the appellant's evidence, was killed on 15 June 2000. The appellant said that Mark Moran was loosely associated with the "Carlton crew" (Appeal book 637). 66 The appellant gave evidence that he attended the RTA in Sydney on 13 June 2000 and applied for a licence in the name of Matthew John Clarke. He then gave this evidence: "Q: Why did you go to the RTA that day to obtain such a licence in an assumed name? A: It was part of a scheme by me to lay a grid, to lay if you like, a maze, that people would get lost in. If they were looking for me, I had made a conscious decision at that time not to get one drivers licence but to get five and five passports. I did them all in very quick succession and it was all part of a deliberate scheme by me to in effect create a swamp that people looking for me would get led into and get lost in." (Appeal book 636) 67 The appellant admitted that, thereafter, he made the applications for passports and licences subject of the charges. Having identified the various applications he made up until the last one, dated 28 June 2000, he was asked: "Q: Since the last date, 28 June 2000, a number of individuals have died, either from the Carlton crew, or the Williams crew, to your knowledge? A: That's so, a fairly large number." 68 Objection was taken to the next question, in which the appellant was asked to identify who had died, on the basis that matters occurring after the date of the charges were irrelevant. 69 The appellant said that he could not go to the police, because he considered that there were corrupt "rogue" elements in the police, some of whom would like to kill him (Appeal book 646). 70 The appellant submitted that, to prove his defences of duress, necessity or self-defence, it was sufficient for him to establish that he had an honest, well-founded belief as to the matters about which he gave evidence and in respect of which he had intended to call other evidence, including evidence of facts and circumstances that arose after the dates of the offence. 71 The evidence that the appellant contends he should have been allowed to give was set out in an affidavit of the appellant sworn 31 May 2006, filed on the appeal. The Crown did not take any objection to the Court reading this material. The appellant contends that his affidavit sets out his honest and well-founded belief as to the fear that he held for his life. The affidavit comprises some 184 paragraphs, as well as two further paragraphs in which he seeks certain orders on the appeal. 72 Besides the historical information as to the appellant's personal life, the affidavit sets out in more discursive form the evidence which the appellant gave at trial as well as the evidence which he indicated he wished to give in respect of events after the date of the offences. That evidence is of the same type to that which his Honour, correctly, held was inadmissible. Further, much of the evidence was in inadmissible form and other evidence was merely argumentative. 73 At trial, the appellant's counsel described the defence that the appellant wished to raise as being "duress by virtue of circumstances" (Appeal book 644). On the appeal, the appellant relied upon the decision of the Full Court of the Supreme Court of Victoria in R v Hurley and Murray [1967] VR 526 in relation to the defence of duress, and the decision of the Full Court of the Victorian Supreme Court in R v Loughnan [1981] VR 443 in relation to the defence of necessity. 74 In Hurley and Murray, the accused were convicted on 2 counts of having been accessories after the fact to the felony of escape. Two armed escapees had taken shelter in Hurley's home. Hurley and Murray assisted the escapees by purchasing clothing for them and going to Sydney to purchase a car, Hurley's de facto wife being held as a hostage during the absences of Hurley and Murray from the house. They alleged at trial that at the time of rendering assistance, their purpose was not to help the escapees to avoid arrest, but that they acted in order to protect themselves and others. Hurley alleged that he acted under duress from a fear of death or injury to himself or his de facto wife. Murray relied upon the defence of duress based upon a fear for the safety of Hurley, Hurley's de facto, and the elderly boarder who lived in Hurley's home. 75 The trial judge had ruled that Murray was not entitled to rely on the last matter as a defence, because fear for the safety of such persons could not in law amount to duress upon him. Winneke CJ and Pape J held at 533 that: "… a person who without threat of death or serious violence voluntarily makes himself a party to a criminal enterprise cannot excuse his criminal conduct in participating in that enterprise by showing that after he had embraced the cause he was subjected to threats of violence at the hands of the other parties to ensure that he did not resile from the bargain he had voluntarily entered into." 76 Their Honours held that on the facts, Murray, having voluntarily agreed to the arrangement upon being approached by Hurley to do so, could not rely on a defence of duress. The position with Hurley was different. Their Honours accepted that the defence of duress was open to him, at least insofar as there were continuing threats to his de facto wife. The issue in relation to Hurley was whether his evidence in that regard should have been accepted. 77 The appellant relies not upon the decision of the majority in Hurley and Murray, but upon the judgment of Smith J, particularly at 537. However, Smith J was not setting out the elements of the defence of duress at that point in his judgment. Rather, his Honour was recounting Hurley's evidence. At 541, his Honour referred to the trial judge's direction as to the defence of duress, which was in these terms and which Smith J considered was correct: "… a defence of duress could arise from a threat of ' immediate death or serious personal violence'; and a little later he said that it could arise from a threat of ' imminent death or grave physical violence' [including threats against the person's de facto wife]" (Original emphasis) 78 In R v Loughnan, the Victorian Full Court accepted that there was a defence of necessity to a criminal charge. Young CJ and King J at 447 indicated that they accepted a general proposition to the effect that the law, in some cases, does recognise a defence of necessity. At 448, their Honours stated that there were three elements involved in the defence. They described the first element in these terms: "… the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect." Their Honours observed that the limits of the first element were ill-defined, but clearly included a threat of death. 79 Their Honours identified the other two elements by the labels of "immediate peril and proportion". They described the first of these two elements to mean: "[t]hat the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril." As to the element of proportion, their Honours stated: "[It] simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?" 80 The defence of necessity was considered by this Court in R v Rogers (1996) 86 A Crim R 542. Gleeson CJ (Clarke JA and Ireland J agreeing) observed that the defences of necessity and self-defence were closely related. 81 This had been a matter adverted to in Loughnan, where Young CJ and King J said at 449: "… the general description of a defence of necessity, is at least analogous to [the defence of self defence] …" Their Honours considered that the defences involved two common elements: "First, an urgent situation of imminent peril must exist in which the accused must honestly believe on reasonable grounds that it is necessary for him to do the acts which are alleged to constitute the offence in order to avoid the threatened danger. Secondly, those acts must not be disproportionate to the threatened danger." 82 In Rogers, Gleeson CJ noted that since the High Court decision in Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645, juries were instructed that the ultimate question to be determined when a defence of self-defence was raised, was whether "the accused believed upon reasonable grounds that it was necessary in self-defence to what he did". However, as Gleeson CJ pointed out at 545: "The imminence and seriousness of the threat to which the accused was supposedly responding are important, and often critical, factual considerations going to the accused's supposed belief, and the reasonableness of his belief." 83 At 546, Gleeson CJ agreed with the proposition advanced on behalf of the appellant in that case, that "the elements" of the defence of necessity were not to be approached in a categorical way: "The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed. This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant's submission that, consistently with the approach to self-defence taken by the High Court in Zecevic , it is now more appropriate to treat those "requirements", not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person's belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response." 84 His Honour concluded at 547: "The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka , the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law. In United States v Bailey 444 US 394 at 410 (1979) Rehnquist J, speaking for the majority in the Supreme Court of the United States, said: 'Clearly, in the context of a prison escape, the escapee is not entitled to claim a defence by duress or necessity unless and until he demonstrates that, given the imminence of the threat, (escape) was his only reasonable alternative.' In that context the word 'demonstrate' is to be understood as a reference to an evidentiary, not a legal onus, as is made clear by the term 'showing' which is used in the paragraph immediately following that which has been quoted." 85 Gleeson CJ added, however: "Reasonableness is not designed to allow people to choose for themselves whether to obey the law …" and at 548, the Chief Justice stated that the imminence of the threat was a matter of evidentiary significance, as was the question of whether there were any possible alternative courses of action available, a matter which his Honour described as being " of central factual importance ". 86 The Crown submits that the appellant's case, if based upon duress, has not been made out. There was no evidence that the appellant was required to commit the offences under threat if he failed to do so: see Hurley and Murray at 541; see also R v Abusafiah (1991) 24 NSWLR 531. This submission is clearly correct. 87 The Crown accepts that the "defence of duress of circumstance" that trial counsel for the appellant relied upon was intended to raise the defence of necessity. The Crown submits that this defence was not made out, as there was nothing in the circumstances in which the appellant found himself, accepting those circumstances to exist, that required him to obtain passports and licences in false names. As senior counsel for the Crown submitted: "You can call yourself whatever you want, but it doesn't entail getting a false passport. It has no logical connection with attempting to avoid detection by unknown persons from the Victorian underworld." (Appeal transcript 44) 88 The Crown's submission is clearly correct. The appellant's argument, that he needed a passport to book into backpacker hostels so as to mask his existence with a chameleon-like tapestry of false identities, begs the question as to whether he had no reasonable alternative but to obtain the false documentation to protect himself from some perceived danger. Even assuming it was reasonable for the appellant to frequently change his place of abode, and even to do so under an alias, that did not necessitate his obtaining false documents. The appellant's conduct in doing so does not answer the description of necessity, as explained by Gleeson CJ in the passage set out above. 89 This disposes of grounds 11, 13 and 16. 90 Further, there was no evidence of imminent threat. The appellant did not contend that he was part of the underworld in which the killings in which he gave evidence were occurring. Rather, he only gave evidence of some association with it. He did not give evidence of why he might have been a target, other than for those associations. I have already referred to the connection which the authorities have recognised between the defence of necessity and the defence of self-defence. In Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28, the appellant was charged with possessing in a public place a thing capable of dispensing an irritant contrary to s 545E(1)(a) of the Crimes Act. It was a defence under the section that the person had a reasonable excuse for possessing the offensive material, or possessed it for a lawful purpose. The appellant's case was that she carried a pressurised canister of formaldehyde, being a substance capable of causing bodily harm, in case anybody attacked her. In short, the appellant sought to raise a defence of self-defence. Brennan CJ, Toohey, McHugh and Gummow JJ, pointed out at 5: "No legal right of self-defence arises until there is a reasonable apprehension of attack by the person who is assaulted." It was not sufficient to successfully raise a defence to be carrying the canister in case of attack. The appellant's position here is no different, for the reasons I have already stated. 91 As the appellant's own evidence was not sufficient to raise a defence to go to the jury, no error is disclosed in the trial process in relation to the other evidence that the appellant wished to adduce, particularly that of Detective Senior Sergeant Swindells, an officer of the Victorian Police Force. 92 The appellant's contention in relation to DSS Swindells is formulated in appeal ground 17 in these terms: "That the learned trial judge erred in law and fact in not allowing the Appellant to call DSS Phil Swindells from the Victoria Police to give evidence in support of the defences raised by the Appellant of Self defence, Duress of Circumstance and Necessity." (Appellant's book 3 p 63) 93 The issue in respect of DSS Swindells arose on the ninth day of trial, when it became apparent that the officer was present at court and there was a question as to whether he should be interposed. The appellant's trial counsel informed the trial judge that DSS Swindells was going to give evidence about the deaths and the association of underworld figures in Melbourne to the "Carlton and Williams crew". His Honour indicated that he considered that if that was the "kind of evidence" that was going to be adduced from the police officer, "it fell a long way short of being capable of making out any of [the] defences". His Honour indicated that, in that circumstance, the evidence was irrelevant. The appellant's counsel, Mr Lowe, disagreed, and said the evidence was relevant to the appellant's "state of mind" (Appeal book 681). Counsel also indicated that DSS Swindells would give evidence about the sequence of events up to the time of the date of the offences, but not thereafter, as he considered himself bound by the trial judge's ruling that such evidence would be irrelevant. 94 Discussion then ensued between his Honour and counsel as to the elements of the defence and, in particular, that it was necessary for the evidence "to be capable of showing that [the appellant] had no other choice but to act in the way he did". Counsel agreed that was the law (Appeal book 681). Counsel then indicated the appellant had already given evidence about his reluctance to go to the police, but could not because he was afraid of the Victorian and New South Wales police. His Honour indicated that was not sufficient to establish the defence. His Honour said: "… that does not get within a bull's roar of necessity or duress … let alone self defence. It does not even get within cooee of it." (Appeal book 682) 95 In the discussion which followed, his Honour emphasised that the law required the appellant to have committed the offences because "he had no other choice". It is apparent from counsel's response that he agreed that that represented the law (Appeal book 683). His Honour then said: "Mr Lowe, it appears to me that the evidence that the witness you propose to interpose is going to give is completely and utterly irrelevant to any real issue in this trial. I don't know what you want to do in the light of that ruling. If you want to call him I'll deal with it question by question if you like. It's up to you, but that's my view. Unless you can take me … to a case that shows me that the law that I've just put to you and which has been endorsed by the Crown Prosecutor is wrong, that's the position as far as I'm concerned." (Appeal book 685) 96 Counsel then referred his Honour to Loughnan and Rogers and his Honour indicated that he considered that he should apply the reasoning of the Chief Justice in Rogers. (Appeal book 686) His Honour referred to the statement of the Chief Justice at 547, which I have already set out above, that: "[T]he accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law." 97 Counsel responded that the appellant had already given evidence about that and that it was a jury question. His Honour stated that the evidence was not capable of establishing that, and he was not going to allow the defence to go to the jury. 98 Counsel sought an opportunity to obtain instructions from his client about releasing the witness. His Honour then said: "Yes, unless the evidence is going to be different Mr Lowe. Unless the evidence is going to rise above the evidence that I have before me at the moment because I can tell you Mr Lowe that the criminal law is not a joke and I am not going to allow it to be used for a purpose which will make the criminal law look ludicrous in the eyes of the jury in asking them to consider defences which an intelligent five year old would think were laughable." (Appeal book 687) 99 Appellant's counsel sought instructions and then requested that his Honour release DSS Swindells from his subpoena: "[I]n accordance with your Honour's ruling on the issue of his relevance." 100 It is apparent from the above exchange that ground 17, in terms in which it is framed, is not made out. It was not that his Honour did not allow DSS Swindells to give evidence. Rather, he indicated that having regard to the evidence that it was proposed to adduce from that witness, it was not relevant to the defences sought to be raised, because it fell below what would be required to be proved in respect of any of the constituent elements of those defences, and in particular, of the defence of necessity. Ground 17 should be treated as seeking to challenge that ruling. 101 It is apparent that the evidence that it was intended that DSS Swindells should give was of the same order as the evidence which was given by the appellant himself. In other words, it was evidence which was intended to support the appellant's evidence of the criminal underworld, to which reference is made above. As I have already concluded that the appellant's evidence was insufficient to satisfy any of the elements of the defence of necessity, based on that evidence, the evidence proposed to be adduced from DSS Swindells was also irrelevant. Accordingly, there was no error in his Honour ruling as he did. 102 This conclusion also takes account of ground 18, in which it is alleged that his Honour similarly erred in not receiving evidence from other witnesses in support of the defences. 103 Likewise, if evidence of these activities and connections that occurred and existed prior to the commission of the offences was irrelevant for the purposes of the defences, then similar evidence of events occurring thereafter would also be irrelevant. Accordingly, the evidence relating to persons who had been murdered and the appellant's relationship with them; the fact that certain other underworld persons had been arrested; and the fact that one of these underworld persons was in such fear for his life that he sought to obtain a passport in another name, was irrelevant. In any event, much, if not all, of that evidence would have been in inadmissible form. Accordingly, there was no error in his Honour's ruling that such evidence was irrelevant. That conclusion disposes of grounds 19 and 20. 104 The appellant then contended in appeal ground 21 that his Honour erred in ruling that that evidence was not relevant but allowing the Crown to elicit evidence of the fear held by the appellant in cross-examination as an attack on his credit, and did not allow the defence to revisit the same material to re-establish the credit of the appellant. There were extensions of this ground in grounds 22 and 23, in which the appellant contends that his Honour erred in not allowing the appellant to call DSS Swindells and other witnesses in relation to the veracity of the fear held by the appellant. 105 The appellant had already given evidence of his fear for his personal safety. Although his Honour had indicated to the parties that the evidence was not sufficient to establish the defences, it was open to the Crown to attack his credit, based upon that evidence. For example, the appellant had suggested in his evidence that it was necessary to have the false identities because he feared for his life, yet he went to places where he was well-known. The Crown submits, correctly, in my opinion, that cross-examination of the appellant on these issues was relevant to his credibility. 106 The appellant contends however that he should have been able to give evidence of these matters in re-examination, the matter having been the subject of cross-examination. It was not open to the appellant to merely reiterate his evidence in re-examination so as to establish his state of mind so as to provide a basis for his proposed defence. An examination of the transcript indicates that was what was being attempted. His Honour indicated that was not permissible in re-examination and that he had already given evidence of his state of mind. Contrary to the appellant's assertion that he should have been able to give such evidence so as to re-establish his credit as permitted by s 108 of the Evidence Act 1995 (NSW), his counsel did not seek to adduce evidence for that purpose, nor was this evidence intended to do so. Issue 4: should the appellant have been dealt with under the Mental Health (Criminal Procedure) Act 1990 (NSW)? (Grounds 1-8) 107 The appellant suffers from the condition of sleep apnoea. From time to time, that condition has a significant impact on his health. There was a period of time, during which the appellant was upon remand, when the court accepted that he was not sufficiently well to stand trial. For that reason, the original trial date was vacated by his Honour Justice Blanch Chief Judge of the District Court on 8 May 2003 and the matter was adjourned from time to time until the trial date was finally set for 15 November 2004. On two specific occasions during the period, the appellant made an application that the trial be adjourned for directions on the basis that he was unfit to be tried. 108 The appellant contends that when Blanch CJDC first vacated the hearing date, his Honour made a finding that the appellant was "not fit for trial". That finding having been made, the appellant contends that he should have been dealt with pursuant to Pt IB Div 6 of the Crimes Act 1914 (Cth) (the Crimes Act (Cth)) insofar as the Commonwealth offences were concerned and under the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) (the Mental Health (Criminal Procedure) Act) insofar as the State charges were concerned. These contentions form the bases of grounds of appeal 1 to 6. 109 The Crown disputes that there was ever a finding that the appellant was "not fit for trial" as alleged, but in any event, it contends that "fitness for trial" within the relevant legislative provisions relates to a person's mental capacity to engage in the trial process and at no stage was there evidence to support the appellant's claim that he was "not fit for trial" in that sense. The statutory scheme Commonwealth legislation 110 Section 20B of the Crimes Act (Cth) provides, relevantly: "(3) Where a court: … (b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences; finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned. … (5) Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail. (6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence." Section 20BA provides, relevantly: "(4) Where the court determines that there has been established a prima facie case that the person committed the offence … the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried." (5) A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner." The phrase " unfit to be tried " is not defined in the Commonwealth legislation. However, pursuant to s 16 of the Crimes Act (Cth) , " unfit to be tried " includes " unfit to plead ". State legislation 111 Under the Mental Health (Criminal Procedure) Act, provision is also made for determining questions of unfitness to be tried. The phrase "unfitness to be tried" is not defined in the Act. The question of unfitness may be raised by any party to the proceedings: s 5; the question of a person's unfitness is to be determined on the balance of probabilities: s 6; the question of unfitness should, so far as is practicable, be raised before the person is arraigned, but may be raised at any time: s 7(1). Section 8 (in its form as at the dates relevant to this matter) prescribes the procedure where the question of unfitness is raised before arraignment. It provides: "(1) If the question of a person's unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney-General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The Attorney-General may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted." 112 It should be said that there appears to be an hiatus in the legislation, in the sense that there is no provision directing 'how' the matter gets to the Attorney-General. Such a lacuna is not atypical in modern legislation. Often, legislation appears to be drafted on the basis of assumptions or practices known to those who operate in a particular area. This problem was encountered recently in the Court of Appeal in Re Jayden [2007] NSWCA 35. Presumably, the papers are referred to the Attorney-General by the court with a request that the Attorney-General determine whether an inquiry should be conducted. 113 Sections 10(1)(a) and 10(2) provide: "10(1) If, in respect of an offence: (a) the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted … the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence. (2) The Court must not conduct an inquiry into the question of a person's unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith." 114 Before conducting the inquiry, the court may do a number of things, including adjourning the proceedings and requesting a psychiatric or other report in relation to the accused be obtained: s 10(3). 115 The inquiry referred to in s 10 is governed by s 11. Section 11(1) provides that the question of unfitness is to be tried before a jury constituted for that purpose. 116 The central question which arises on this issue is whether before trial there was a question of the appellant's unfitness to be tried for an offence. This in turn raises the question of the reach of the Mental Health (Criminal Procedure) Act and, in particular, whether it extends to fitness arising from a physical condition which does not involve a "mental illness" or "mental condition". 117 The Mental Health (Criminal Procedure) Act was enacted as part of a tranche of legislation relating to mental health, the other Acts being the Mental Health Act 1990 (NSW) (the Mental Health Act), the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW) (the Miscellaneous Acts (Mental Health) Act). 118 The objects of the Mental Health Act are set out in s 4 of that Act and in broad terms relate to the care, treatment and control of mentally ill and mentally disordered persons. There are no specified objects of the Mental Health (Criminal Procedure) Act. However, it is entitled "An Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions". "Mental condition" is defined in s 3 to mean "a condition of disability of mind not including either mental illness or developmental disability of mind". "Mental illness" is not defined but would bear the same meaning as in the Mental Health Act. The appellant does not contend that he suffers from a mental illness, so it is not necessary to refer to that definition. 119 Part 2 of the Mental Health (Criminal Procedure) Act is headed "Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders". "Mental disorders" is not defined in this Act but is defined in s 10 of the Mental Health Act to mean: "10 A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: (a) for the person's own protection from serious physical harm, or (b) for the protection of others from serious physical harm." 120 If a person is found by the jury to be unfit to be tried, the proceedings brought against the person must not be recommenced or continued, and the court must refer the person to the Mental Health Review Tribunal: s 14(a). 121 The Mental Health Review Tribunal is required to determine whether on the balance of probabilities the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence: s 16(1). If the Tribunal makes such a determination, it must also determine whether or not the person is suffering from a mental illness: s 16(2)(a), or a mental condition for which treatment is available in a hospital: s 16(2)(b). 122 If the Tribunal determines that the person will not become fit to be tried during the succeeding 12 months, then it must notify the Attorney-General: s 16(4). Section 17 then prescribes what orders the court may make if the Tribunal determines that a person will be fit to plead within 12 months. It may, for example, grant bail for a period not exceeding 12 months: s 17(2). If the Tribunal has determined that the person is suffering from a mental illness or mental condition for which treatment is available, the court may order the person to be taken to and detained in a hospital if the person does not object, or otherwise may make an order for the detention of the person in some other place: s 17(3). 123 If the Mental Health Review Tribunal determines that the person will not be fit to be tried within 12 months, then the Attorney-General may direct a special hearing, or advise the Minister for Police that the person will not be further proceeded against: s 18. In a special hearing, a jury or court may deliver a verdict that the person is not guilty of the offence charged: is not guilty on the ground of mental illness; that on the limited evidence available, the accused person committed the offence; or that on the limited evidence, the accused person committed an available alternative to the offence charged: s 22(1). 124 Thereafter, there are procedures for dealing with a person if it is determined the person is suffering from a mental illness or mental condition. It is not necessary to expound upon the details of those provisions. They are to be found at ss 22 to 27. 125 It would be extraordinary if a person suffering from a purely physical condition fell within these provisions. An obvious example may be given. Assume that a person is seriously injured in an accident two days before trial and is expected in the succeeding weeks to undergo major surgery. Assume the person could not eat and was being fed and medicated intravenously. It could readily be said of such a person that that person was unfit to be tried on the date set for trial. It would be nonsense, however, to say that that person should be dealt with under the provisions of Pt 2 of the Mental Health (Criminal Procedure) Act. 126 The position is different, however, if, by reason of a physical or other disability, a person was unable to understand the procedures by which he was to be tried. This is how, "unfitness to be tried" has been interpreted in a range of cases and in respect of which a range of legislation which derived originally from the Criminal Lunatics Act 1800 (UK). 127 In R v Presser [1958] VR 45, the court was concerned with the provisions of s 426 of the Crimes Act 1928 (Vic) which provided that: "… if any person presented for an indictable offence is insane … and is so found by a jury lawfully empanelled for that purpose … that such person cannot be tried upon such presentment …" 128 Smith J, at 48, identified the question to be determined under the section as being: "… whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him … He needs … to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any." 129 This explanation is often referred to as the 'Presser test', or by a phrase such as 'mental unfitness in the Presser sense'. 130 In Ngatayi v The Queen (1980) 147 CLR 1 Gibbs, Mason and Wilson JJ observed that legislation governing "fitness to be tried" had always been interpreted as to raise the question "whether the prisoner has sufficient understanding to comprehend the nature of this trial, so as to make a proper defence to the charge": see R v Pritchard (1836) 173 ER 135 per Alderson B. 131 Ngatayi was a "full-blood aboriginal who did not speak or understand English". He was charged upon indictment with wilful murder. Upon his arraignment an application was made under s 631 of the Criminal Code (WA) which provided: "If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason , whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury … [is] to be empanelled forthwith, who are to be sworn to find whether he is so capable." (Emphasis added) 132 Their Honours, at 8, said that the test "looks to the capacity of the accused to understand the proceedings", but pointed out that complete understanding was not necessary. Their Honours agreed with the approach taken by Smith J in Presser that the test needs to be applied "in a reasonable and commonsense fashion". Their Honours essentially endorsed the statement of Smith J as to the minimum capacity an accused needed before he could be tried without unfairness or injustice. Their Honours noted, however, that the reference to mental capacity in Smith J's judgment was explained by the terms of the statute under consideration by his Honour which spoke of "insanity" and not want of capacity "for any reason" which was the language of the legislation with which the Court was dealing. At 9, their Honours reiterated the test to be applied, namely, whether the accused person "is capable of understanding the proceedings at the trial so as to be able to make a proper defence". 133 The High Court again dealt with the question of fitness to be tried in Kesavarajah v The Queen (1994) 181 CLR 230. In that case, the Court was dealing with the provisions of s 393 of the Crimes Act 1958 (Vic). That was the same provision dealt with by Smith J in Presser. Again, the Court accepted the test to be applied was one that "looks to the capacity of the accused to understand the proceedings". Mason CJ, Toohey and Gaudron JJ in their joint judgment (Dean and Dawson JJ agreeing on this point) remarked that the test did not mean that the accused was required "to have sufficient capacity to make an able defence": see Presser at 48 and Ngatayi at 8. Their Honours then reiterated the "minimum standard" with which an accused had to comply before it could be said that the person could be tried without unfairness or injustice, as elaborated by Smith J in Presser. 134 In Eastman v the Queen (2000) 203 CLR 1; [2000] HCA 29 Eastman, upon an application for special leave to appeal to the High Court, raised for the first time his fitness to plead because of mental illness. In the course of considering that question, Gaudron and Hayne JJ gave consideration to what was involved in the concept of fitness to plead. Gaudron J said at [57] that in general terms, a person was fit to plead if that person "has sufficient understanding to comprehend the nature of [the trial] so as to make a proper defence to the charge". Her Honour adopted these words from Pritchard (see above). Her Honour accepted the Presser test, that there were certain minimal matters that the accused person needed to be able to comprehend. Her Honour also accepted the qualification in Presser and Ngatayi that the person did not need to have the mental capacity to make an "able" defence. 135 At [59] her Honour commented that the question whether a person was fit to plead "may arise for reasons other than mental illness". Her Honour related examples that had arisen in the cases, such as a person being deaf and dumb: see Ebatarinja v Deland (1998) 194 CLR 444; [1998] HCA 62 (also being a matter referred to in Presser); or because of language difficulties: see, for example, Ngatayi. Her Honour also noted that the concept of unfitness was one that derived from the common law, although there were usually statutory provisions which bore upon the determination of the issue. Importantly, for the issue that arises here, her Honour then said: "[62] The significance of the question of a person's fitness to plead is often expressed in terms indicating that, unless a person is fit to plead, there can be no trial. Certainly, that is the position where the issue of fitness to plead is raised before or during a trial. If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead, or, if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity.' To put the matter another way, there is a fundamental failure in the trial process. [63] The question whether there was a fundamental failure in the trial process is different from the question whether there was a miscarriage of justice in the sense that the accused lost a chance of acquittal that was fairly open. If a proceeding is fundamentally flawed because the accused was not fit to plead or if, to use the words in Begum , 'the trial [is] a nullity', the only course open to an appellate court is to set aside the verdict. And that is so regardless of the strength of the case against the accused or of the likely outcome of a further trial according to law. That is the basis upon which this Court proceeded in Kesavarajah v The Queen where the question of fitness to plead should have been but was not submitted to the jury for determination." (Footnotes omitted) 136 At [66], her Honour pointed out that s 428E(1)(b) of the Crimes Act (Cth) was concerned with whether there was a question as to fitness to plead. Her Honour observed that where there was a question of fitness to plead, then that issue had to be left to the jury "unless no reasonable jury properly instructed, could find that the accused was not fit to be tried": see Kesavarajah at 245. 137 In R v Sexton (2000) 116 A Crim R 173; [2000] SASC 276, Gray J (Prior and Williams JJ agreeing) observed that unfitness to be tried at common law was not limited to cases of mental illness. His Honour said at [54]: "There are broader considerations, including one's inability to communicate and participate in the trial process. An inability to communicate or comprehend may be based upon physical disabilities alone, such as hearing and speech impediments. The common law does not require the presence of any psychological or intellectual impairment." 138 The reach and operation of Pt 2 of the Mental Health (Criminal Procedure) Act has been the subject of extensive consideration by this Court. Its statutory history and common law pre-history were considered in R v Mailes 53 (2001) NSWLR 251; [2001] NSWCCA 155. 139 In Mailes, Spigelman CJ, who agreed with Wood CJ at CL's reasons, also observed at [2] that: "This is not a case in which the title of the Act (with its reference to 'mental health') or the heading of the Part (with its reference to 'mental disorders') is of any assistance in the construction of the general words 'unfitness to be tried'". 140 Wood CJ at CL concluded at [213]-[214] that: "It seems to me, in light of the legislative history, and the approach which the common law has consistently taken, concerning the fundamental right for a person placed on trial to have sufficient understanding of the proceedings so as to be able to mount a proper defence, that the Procedure Act should not be read down so as to exclude the developmentally or intellectually disabled … To otherwise construe the Procedure Act would be to depart from the extended meaning given to the expression 'mental illness' in the context of fitness to be tried, that was developed in Pritchard and Dashwood, and confirmed in Presser, Kesavarajah and Eastman; and potentially to negate a fundamental common law principle of fairness that has the authority of recognition over many centuries." 141 Greg James J agreed with the reasons of Wood CJ at CL and with Spigelman CJ's additional reasons. 142 In R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7, the Court (Mason P, Wood CJ at CL and Sully J) held at [279] that the question of fitness to be tried was to be determined by application of the Presser test: "The test for determining fitness to stand trial is whether the accused has a sufficient mental state, and intellect, to comprehend the course of the proceedings involved in the trial, so as to follow those proceedings, and so as to make a proper defence. The factors to be taken account have been accepted as being those developed in R v Presser (supra), an authority which has been consistently followed in this State and elsewhere: see for example R v Mailes , R v Zhang [2000] NSWCCA 344, R v Tier (2001) 121 A Crim R 509, and Kesavarajah v The Queen (1994) 181 CLR 230." 143 In Rivkin, the question of unfitness to be tried arose after conviction when it was established that the appellant had a brain tumour which would have caused frontal lobe dysfunction. Again, the Court referred in some detail to the authorities discussed above, which were adopted as correctly stating the law. The additional consideration in Rivkin was the test to be applied where the question of fitness to be tried is raised after conviction. That is not an issue here. However, their Honours were also considering a question that is relevant here, namely, where a person has a "temporary condition". In that regard, their Honours said at [296]-[298]: "So far as the present case involves a temporary condition, which was amenable to treatment, and which has since been reversed, so that no current question of fitness arises, it does differ from most, if not all, of the other cases which have attracted an application of the requirements in R v Presser . The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser , but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned. … The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness." 144 The Court concluded at [301] that the question of fitness to be tried related to the "essential requirements" as stated in Presser. 145 The history of the appellant seeking to put his fitness to be tried in issue is as follows. On 8 May 2003, the appellant's matter was listed before Blanch CJDC for "mention" (Appeal book 56). It had been adjourned from a previous date, on which occasion the appellant's trial date of 12 May 2003 had been vacated. The purpose of setting the date for mention was in the expectation of obtaining medical reports in respect of the appellant's medical condition. 146 The appellant was examined by Dr Dale Kong at the request of the Commonwealth Director of Public Prosecutions on 2 May 2003. At that examination, the appellant complained of five medical problems: hypertension; sleep apnoea; obesity; right ankle pain and left leg shortening; and multiple cutaneous lipoma. 147 Dr Kong considered that the appellant was "reasonably impaired by his sleep apnoea … reflected in his daytime sleepiness and poor concentration". Dr Kong noted that the appellant was currently undergoing investigation and treatment in respect of the condition. Dr Kong concluded that the severity of the condition was such as to prevent the appellant from being able to fully concentrate over the period of the proposed trial, and concluded that he was not "medically fit" to attend such a trial, as he might "develop recurrent sleep episodes during the period of the trial". 148 Dr Kong did not consider that the other medical conditions would prevent the appellant from court attendance. Having regard to the proposed treatment for the appellant's sleep apnoea, Dr Kong expressed the opinion that he expected the appellant to be fit to attend trial six to eight weeks after commencing successful treatment. (Appeal book 58-62) 149 On 4 April 2003, the appellant's matter was listed before his Honour Blanch CJDC on the appellant's application to vacate the trial date set for 12 May 2003. The appellant supported his application with an affidavit sworn 4 April 2003. In that affidavit, he stated that he suffered from "several conditions that affect my health and impact on my capacity to stand trial on 12 May 2003". The appellant outlined his various health problems, including sleep apnoea. 150 The appellant then referred to correspondence between himself and the Commonwealth Director of Public Prosecutions. In that correspondence, in a letter dated 25 March 2003, he asked that his health concerns be noted and sought consent to the vacation of the trial date of 12 May 2003. The Commonwealth Director of Public Prosecutions responded, stating that it would oppose the vacation of the trial date if it was not provided with a full medical report in advance of the mention on 4 April 2003. The appellant responded by a further letter, setting out details of his health problems and agreeing to consent to the Commonwealth medical officer making material available to the Commonwealth Director of Public Prosecutions. 151 The appellant concluded his affidavit by seeking an order vacating the trial date of 12 May 2003 "and [allowing] the matter to be mentioned again in July 2003 to consider my capacity to stand trial" (Appeal book 55). 152 The matter was listed before Blanch CJDC on 8 May 2003. On that occasion, the appellant informed his Honour that treatment had commenced. Accordingly, on the Crown's application, the matter was adjourned for a further eight weeks, to enable an assessment to be made as to the appellant's condition. The appellant agreed with that proposal (Appeal book 56). 153 In my opinion, the appellant's application on 4 April 2003 did not "put in issue his fitness for trial" in the Presser sense: see appellant's submission 1.6 (Appeal book 3). On 8 May 2003, his Honour made no finding in relation to the appellant's fitness for trial. Rather, he acceded to an application for adjournment in circumstances where he was informed that the appellant had a medical condition in respect of which he had commenced treatment. 154 Accordingly, grounds 1 and 2 of the Notice of Appeal should be dismissed. 155 The appellant next complains that on 29 January 2004, Solomon DCJ erred in law and fact in not dealing with the offences pursuant to the Mental Health (Criminal Procedure) Act. 156 Following the adjournment on 8 May 2003, the matter was mentioned on several occasions before Blanch CJDC, up to and including 23 January 2004. On that day, the appellant informed his Honour that his treatment had not proved successful and that he remained "unfit for trial". The appellant said he was likely to remain unfit for the foreseeable future. His Honour indicated that he would require further medical reports and the appellant informed his Honour that he was in the process of having those prepared. The appellant said that the Court might be "aided by some submissions from counsel as to what course the matter should now take". He said that he had had difficulty organising that over the holiday period and he was seeking another mention date. His Honour thus stood the matter over to 29 January 2004, which was the occasion on which the matter came before Solomon DCJ. 157 On 28 January 2004, the appellant filed a Notice of Motion, seeking directions for the further conduct of the trial. The Notice of Motion was supported by an affidavit dated 28 January 2004, in which the appellant again raised his medical conditions. He stated at para 5 of his affidavit that the matter had been adjourned by Blanch CJDC on 8 May 2003 because the appellant was "then unfit to be tried". The appellant then stated "I remain unfit to be tried" (Appeal book 73). The appellant set out his various medical conditions. At para 21, he stated that the treatment that he had had at Royal Prince Alfred Hospital's Sleep Disorders Clinic had been ineffective and that his symptoms persisted. He said those symptoms included frequent daytime micro sleeps that would see him "effectively black out for periods as long as 20 minutes". The appellant concluded his affidavit seeking directions as to the future conduct of the proceedings (Appeal book 82). 158 The appellant made written submissions to his Honour on that occasion, in which he raised the provisions of the mental health legislation. In particular, he referred the Court to ss 8 and 10 of the Mental Health (Criminal Procedure) Act. 159 Solomon DCJ observed that he only had one medical report on file, namely, that of Dr Kong of 2 May 2003. Accordingly, his Honour made directions relating to the obtaining of further medical evidence and allocated another mention date on 26 March 2004. The appellant agreed to that. (Appeal book 70-79) 160 Thereafter, there were a number of mentions of the matter. On 6 August 2004, the matter was listed before Hosking DCJ, who set the matter down for a two week trial commencing 15 November 2004. 161 On 5 November 2004, the matter again came before Blanch CJDC, pursuant to an application filed on 28 October 2004 and supported by an affidavit of the appellant's solicitor, who had recently been retained. The Notice of Motion sought the vacation of the hearing date on 15 November 2004 and for the matter to be listed for mention in May or June 2005. An order was also sought that the Notice of Motion be further adjourned sine die to be brought on for hearing on seven days notice. 162 The Notice of Motion was supported by an affidavit of the appellant's solicitor. In her affidavit, the solicitor recorded the history of the matter as she understood it, including that Blanch CJDC had not considered the effect of the mandatory provisions of Pt IB Div 6 of the Crimes Act (Cth) or Pt 2 of the Mental Health (Criminal Procedure) Act when the matter was before him on 8 May 2003. The appellant's solicitor also stated that her instructions were that Solomon DCJ also had not dealt with the application on the basis of those provisions when the matter was before him on 29 January 2004. 163 The solicitor stated that medical appointments had been made for the appellant commencing on 4 November 2004 and concluding on 14 March 2005. Those medical appointments related to a pre-anaesthetic appointment at St Vincent's Hospital on 4 November 2004; surgery on 9 November 2004 by Dr Quain, Orthopaedic Surgeon; examinations on 16 November 2004 and 31 January 2005 by Dr Westmore, Psychiatrist, and Mr Borenstein, Psychologist, respectively; examination on 14 February 2005 by Dr Ong, Endocrine Specialist; surgery on 7 March 2005 by Dr Gallagher, ENT Surgeon, and a post-surgery consultation with Dr Gallagher on 14 March 2005. The appellant's solicitor also said that she had not received the medical reports requested at that stage and, in the absence of the medical evidence and the transcript of prior proceedings to assist in the appellant's defence, she stated that she believed the appellant was not ready to proceed to trial and, therefore, sought the orders made in the Notice of Motion. (Appeal book 135-138) 164 On 5 November 2004, the appellant was represented by Mr Brezniak of counsel, who submitted to his Honour that the question of fitness to stand trial had already been determined and conceded by the prosecution (Appeal book 120). He submitted that his Honour Hosking DCJ erred in setting the matter down for hearing. Mr Brezniak informed his Honour that the matter was not an application for a stay on the basis of unfitness to stand trial, although he acknowledged that that might be a "derivative application" available to the appellant. Rather, it was an application seeking to invoke the regime prescribed by the Mental Health (Criminal Procedure) Act. 165 His Honour rejected the application. Unfortunately, there was a malfunction of the transcript tape, so that there is only a portion of his Honour's reasons available for consideration. In the material that is available, his Honour stated specifically that he had not, when the matter was before him on 8 May 2003, found that "the trial should be delayed because the appellant was unfit to plead or to stand trial in the Presser sense". His Honour then said (Appeal book 140): "… the inquiry which has to be made in these cases is whether or not, in the conventional sense there is any evidence to raise the issue of fitness to plead or fitness to be tried. In support of that proposition I need to quote no more than the authority of Kesavarajah ." 166 His Honour also referred to the decision in Mailes. I have already dealt with that decision above. It was at that point that the tape malfunctioned. 167 In my opinion, a question had not arisen as to the appellant's fitness to be tried, as that concept is properly understood, in any of the applications made prior to the date that the trial was set down for hearing on 15 November 2004. The fact that a person makes an application to the Court in which it is contended that Pt 2 of the Mental Health (Criminal Procedure) Act applies is not necessarily sufficient for the question of a person's fitness to be tried to arise. There has to be a question as to whether the person is able to satisfy the minimum requirements stated in Presser. Up until 15 November 2004, the only evidence before the Court on the applications made by the appellant was that of Dr Kong, who gave evidence of a medical condition from which the appellant was suffering. That evidence is set out above. There is no doubt from that evidence that the appellant had the capacity to understand each and every aspect of the Court proceedings. The only question is whether he was "able to make his defence … by giving any necessary instructions and by letting his counsel know what his version of the facts is …". The Court, by granting an adjournment, must have accepted Dr Kong's opinion as to the appellant's likely inability to concentrate and the likelihood of sleep episodes during the trial. 168 However, that, in my opinion, gives rise, not to questions of "unfitness to be tried" but to the question whether, given a medical condition for which the appellant was then requiring treatment, it would have been fair, in the common law sense of that word, for the trial to proceed at that time. In that regard the position is no different from the man with the broken leg who was being intravenously fed or medicated. 169 There was no indication at that time in the medical evidence that the appellant had any cognitive impairment caused by or as a result of his sleep apnoea. Indeed, Professor Grunstein, a specialist in sleep and respiratory medicine, in his report dated 1 June 2004, said that in order to assess the appellant's "fitness to stand trial", his cognitive impairment would need to be assessed. In a report dated 8 July 2004, Professor Grunstein said he was of the opinion the appellant would be able to stay awake during proceedings. 170 Even if I am wrong in the above and a question had arisen as to the appellant's fitness to stand trial, in the proper meaning of the phrase, as at 8 May 2003, or on 29 January 2004, the fact is, he did not stand trial. This is relevant, because the consequence of a person standing trial where a question of unfitness arises and is not dealt with is a nullity: see Eastman; Maile; Rivkin. But, as I have said, he did not stand trial at that point, so there is no question of any trial being a nullity arising. That is not to say that the appellant was without a remedy. The appellant, during the period in which the Court granted successive adjournments of both the trial and the Notices of Motion, could have sought prerogative relief. He did not do so. 171 As I have said, the trial was set down to commence on 15 November 2004. On that day, the appellant filed a further Notice of Motion seeking a stay of the proceedings. The Notice of Motion was supported by his affidavit of the same date, in which the appellant stated that Dr Gallagher had scheduled surgery for him in March 2005 for his sleep apnoea. The appellant stated that his sleep apnoea manifested itself in micro sleeps frequently and intermittently during the day. He said this had a debilitating effect, including lack of concentration, short periods of functioning, and vague memory. He also said his cognitive reasoning abilities were affected. The appellant said he suffered from poor memory retention and general disorientation. He also said that he experienced sleep episodes involving total paralysis. The appellant also referred to his other medical conditions. 172 At the commencement of proceedings on 15 November 2004, the appellant's counsel, who was then Mr Lowe, moved on the application for a temporary stay (Appeal book 141). Counsel tendered the medical reports of Drs Kong and Grunstein to which I have already referred. In addition, he tendered reports of Dr Westmore, dated 11 November 2004, Mr Borenstein, dated 9 November 2004 and Dr Gallagher, dated 12 November 2004. 173 I have already referred to the opinions and conclusions of Dr Kong and Professor Grunstein. Dr Westmore reported that from a psychiatric perspective, there was nothing to indicate that the appellant was unfit to be tried. He stated that questions of the appellant's capacity to remain alert and attentive were matters for other experts. 174 Mr Borenstein, on the basis of his assessment by way of interview, said that the appellant did not suffer any psychological or psychiatric disorder (Appeal book 193). He noted the appellant's "significant history of hypertension and sleep apnoea", and observed that during his own examination, Mr Clarkson's concentration appeared to be intact. Mr Borenstein expressed concern that the appellant's sleep apnoea and hypertension would interfere with his ability to maintain concentration over an extended trial. He commented, however, that he was not an expert in sleep apnoea and said that to fully appreciate the effects of this condition on the appellant's concentration and cognitive status, more thorough neurological testing would have to be undertaken (Appeal book 194). 175 Dr Gallagher stated that he could see "no reason that the patient is not medically fit for trial". He commented that it was certainly possible that a person with severe sleep apnoea could fall asleep during the day, but added: "I certainly could not comment on the probability of this occurring during a trial. I am in agreement with Professor Ron Grunstein." (Appeal book 196) 176 Dr Gallagher concluded by stating that his overall recommendation was that Mr Clarkson should undergo nasal surgery so as to optimise his nasal airways so he could use the sleep apnoea equipment appropriately. (Appeal book 196) 177 Hosking DCJ reviewed the appellant's affidavit evidence and the medical evidence in detail. He also reviewed an affidavit by Ms Hayes tendered by the Crown, which set out the history of the matter. 178 His Honour also observed: "I understand the Chief Judge's reference [being a note on the Court file relating to the application before the Chief Judge on 5 November 2004] to the refusal of a fitness hearing to mean that his Honour did not agree that there was any reasonable evidence to suggest that the accused would be today unfit to stand his trial. It will be seen, therefore, that the matter has had a protracted history, all due to this question of the accused's sleep apnoea and whether he will either be fit to stand his trial or can receive a trial which is not unfair." (Appeal book 205-206) 179 His Honour then went on to review the law in respect of applications for stays. His Honour concluded by observing that, on the medical evidence, neither Professor Grunstein, nor Dr Gallagher, considered it a probability that the accused would fall asleep during trial. His Honour reiterated that it was Professor Grunstein's opinion that the appellant should be able to maintain appropriate vigilance during court hours and the appellant's own doctor, Dr Gallagher, did not disagree. 180 His Honour refused the application. 181 In my opinion, there was no error in his Honour so doing. The medical evidence available to the Court at that time was all to one effect, namely, that the appellant was fit to stand trial, subject possibly to a suggestion that neurological testing should be undertaken. That suggestion was made by a person not expert in the field of sleep apnoea. That is not sufficient, in the face of relevant expert evidence of fitness, in the Presser sense or under the Mental Health (Criminal Procedure) Act, to raise a question of unfitness to be tried. 182 Before leaving this point, reference should be made to one other matter. The appellant contends that his Honour Judge Hosking also erred because he relied upon the decision of the Chief Judge in his determination on 5 November 2004, that the appellant was not unfit to be tried. I have set out the relevant passage above. In my opinion, Hosking DCJ was merely recording what had happened in the various pre-trial applications that had been made by the appellant, including that of 5 November 2004, that had been determined by the Chief Judge. In my opinion, there is nothing in his Honour's reasons to indicate that his Honour considered that the Chief Judge's determination on that day otherwise precluded his own consideration of the matter. 183 The applications before the Court on 5 and 15 November 2004 were, of course, different. The application on 15 November was for a stay. The appellant's counsel did not raise the question of the appellant's fitness to be tried in the Presser sense, so as to engage the provisions of the Mental Health (Criminal Procedure) Act. Had it been apparent to his Honour that there was such a question, properly understood, he would have been required by the legislation to have dealt with it. However, as I have explained, the appellant's counsel did not raise the matter, nor did that question arise out of the medical evidence that was before Hosking DCJ, except to the extent that it either refuted any question of the appellant's unfitness (see Drs Westmore, Grunstein and Gallagher) or, alternatively, indicated that there was insufficient evidence to know whether that was the case (see Mr Borenstein), with which I have already dealt. 184 It follows, therefore, that grounds 7 and 8 should be rejected. Issue 5: failure to order separate trials in respect of the s 10(1)(b) offences: Ground 9 185 On 15 November 2004, prior to the commencement of the trial, the appellant's counsel made an application for a separate trial of the s 10(1)(b) offences. 186 Section 21(2) of the Criminal Procedure Act 1986 (NSW) (the Criminal Procedure Act) provides: "(2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment." 187 Section 29 is also relevant. It provides for the circumstance where the court may hear more than one offence at the same time. It provides, relevantly: "(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances: … (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character." 188 The appellant did not suggest on his application at trial, or on appeal, that s 29 was not satisfied. Rather, his application was for a separate trial under s 21. 189 The basis upon which the appellant sought to have the s 10(1)(b) passport offences severed from the trial of the s 10(1)(a) offences and the s 184 State offences was that: "… different evidentiary considerations come into play in defences, between the two offence provisions and when I talk about offence provisions I'm talking false impersonation goes with 10(1)a [sic] and 10(1)b in some. The falsity that may be the subject of the Crown case for 10(1)a is not the same sort of falsity that has to be proven in my respectful submission in terms of offending conduct in 10(1)b and it would be an unfair trial. We accept false personation can be readily put there by the Crown and we don't object to that but certainly in terms of the way that the Crown is relying upon conduct in 10(1)a to support either as tendency coincidence falsity in relation to the other remaining counts which are under s 10(1)b we say and submit there's a certain unfairness involved in defending oneself against the whole balance of the indictment when in fact they're talking about different offending conducts." (Appeal book 159) 190 The Crown informed his Honour that it was relying upon coincidence evidence in respect of all offences and that a notice had been served upon the appellant of its intention to do so: see Evidence Act; s 98. The Crown then tendered a document headed "List of Coincidences". The document set out each offence and the details relating to each. It is apparent that the document was prepared as an aide memoir to assist the Crown in the presentation of the case based upon the coincidence evidence. The document was not put before the jury, but was tendered on the application for a separate trial without objection (Appeal book 160). It is not necessary to refer to the details of the coincidence evidence. It has been referred to in part at [*] above and that is sufficient to demonstrate the nature of the coincidence evidence upon which the Crown proposed to rely (and in the event, did rely). 191 The trial judge rejected the appellant's application for separate trials. He accepted the Crown's submission that the coincidence evidence was such that it was admissible in respect of the charges under both ss 10(1)(a) and (b) respectively. His Honour referred to the decision of this Court in Verma v R (1987) 30 A Crim R 441. In that case, the Court was dealing with s 365(2) of the Crimes Act, which relevantly was in the same terms as s 21(2) set out above. Hunt J (Wood and Campbell JJ agreeing) said at 446: "It is, of course, for the accused in each case to demonstrate to the trial judge that there is a risk of impermissible prejudice by reason of a joint trial which cannot sufficiently be cured by a direction to the jury. The prospect that such prejudice may arise is essentially one for the trial judge to consider upon the material which the accused chooses to put before him (and that which the Crown may add to it), and in the light of the requirements of justice in the particular case." 192 The appellant submitted that his Honour erred in rejecting the application. He submitted that his counsel had not made a particularly articulate application for severance and proposed the submission that he said, would have more clearly demonstrated why the s 10(1)(b) offences should be separated. In this reformulated submission, he said he proposed to raise a defence to the s 10(1)(a) counts and the s 184 counts, namely, that he had committed the offences because he was in fear of his life. He said it should have been submitted to his Honour that, in order to properly advance that defence, it would be necessary for the appellant to put his criminal record in evidence and that that would be prejudicial and embarrass him in his defence on the s 10(1)(b) counts if all the matters were tried together. 193 The appellant also submitted that his counsel could have resisted the Crown's argument that the charges should be heard together because of the proposed reliance upon coincidence evidence, by pointing out to his Honour that "the provisions relating to tendency and coincidence evidence do not demand a conjoined trial, they merely permit it". He said that counsel could have informed his Honour of the appropriate test relating to coincidence evidence as formulated in R v Ellis (2003) 58 NSWLR 700; [2003] NSWCCA 319. 194 The use of coincidence evidence in a proceeding is governed by s 101(2) of the Evidence Act 1995 (NSW), which provides: "… coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." 195 In Ellis, Spigelman CJ (Sully and O'Keefe JJ agreeing) stated at [99] that: "… the statutory formulation should operate in accordance with its terms. There is no need for an assumption that all such evidence is 'likely to be highly prejudicial', nor for guidance that the test for admissibility is 'one of very considerable stringency.'" 196 Earlier, at [95], the Chief Justice stated: "… section 101(2) calls for a balancing exercise which can only be conducted on the facts of each case. It requires the Court to make a judgment, rather than to exercise a discretion". See also R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61 at [20] per Sheller JA. 197 It must be remembered that the appellant's application was for separate trials. There was no challenge that the evidence was not coincidence evidence. Nor was there any objection to the admissibility of the evidence based on s 101(2), although in determining whether to order a separate trial, it would be relevant, if the question was raised, to consider whether coincidence evidence upon which it was proposed to rely in a trial in respect of different charges, would have been precluded by the s 101(2) barrier. 198 The appellant's counsel did not take that point on the application. Rather, his focus was on the evidence relating to the defence. But, in any event, I do not consider that the coincidence evidence would or should have been rejected under s 101(2). In the trial proper, no objection was taken to it and no appeal point has been raised in respect of it. 199 No other error has been demonstrated in the manner in which his Honour exercised his discretion. In the first place, the coincidence evidence upon which the Crown proposed to rely was relevant to both sets of charges sufficient to satisfy the requirements of ss 29(1)(b) and (c) of the Criminal Procedure Act. 200 To the extent that the appellant alleged that he was prejudiced in the charges being heard together, it was because of his proposed defence. If that was to be pressed in the terms now suggested by the appellant, his Honour would have been required to assess the availability of the defence. Presumably, that would have been done by testing the evidence intended to be adduced on a voir dire. Alternatively, sufficient details of the defence would have had to have been provided to his Honour to assess whether the defence was such that it would go to the jury and, if so, whether the appellant would be prejudiced in the charges being heard together. At trial, his Honour ruled that the evidence adduced and proposed to be adduced by the appellant was not sufficient for the defences to go to the jury. It must be inferred that the same determination would have been made on the application for separate trials. 201 This ground should be dismissed. 202 In addition to the five principal issues advanced by the appellant and the questions relating to the stated case, there were numerous other grounds of appeal in respect of which the appellant made written submissions. These should not be considered to have been abandoned, but can, in the main, be dealt with briefly. Ground 10: the due process issue 203 The appellant contends that his imprisonment was unlawful, being imprisonment imposed other than pursuant to due process of law. He relies upon a range of legislation and common law principles commencing with the Magna Carta. For the most part, the submissions were discursive and not to the point. 204 However, in para 10.95 of his submissions, the appellant particularised six specific matters in respect of which his conviction fell short of what was required under the "due process of the law". The first three of those issues related to his health, including the fitness for trial issues. These have already been dealt with. The fourth and fifth matters are, on his own submission, separately dealt with under grounds 14 and 12 respectively. They relate to the alleged interference by the trial judge with the orderly presentation of the case and with a general allegation that the appellant did not receive a fair trial. Those issues are dealt with below. 205 The sixth matter of which complaint is made was that the appellant was denied procedural fairness, in that the trial judge made findings adverse to the interests of the appellant, without receiving and considering evidence in relation to the appellant's past, including his trial for murder in 1980; his 10-year period of imprisonment; the disappearance of Chris Flannery; the murder of named underworld figures and alleged attempts on his own life more than a decade ago. These matters were also subject of a separate ground of appeal, ground 13, and have been dealt with. This ground should be rejected. Ground 12: fair trial 206 The appellant contends in this ground that he did not receive a fair trial. Many of the submissions directed to this ground relate to other grounds of the appeal, including grounds 7, 8 and 14, the appellant's contention being that he should not have been forced to trial at a time when his health was such that he was unable to give evidence effectively or be cross-examined. This has already been dealt with. 207 An allegation of bias appears to be raised in para 12.19 of the appellant's submissions. The appellant contends that from 6 August 2004, when his Honour the trial judge first had conduct of the matter, his Honour "appeared to approach the appellant with a preconceived stance, a fixed opinion and a mindset adverse to the appellant". The appellant did not provide any reference to the transcript to support this allegation. In my opinion, this submission, to be made out, would need such references or, alternatively, would need evidence from either the appellant himself, his counsel, or his solicitor. None has been forthcoming. For that reason alone this should be rejected. There are two other reasons this ground of appeal should be rejected. First, a reading of the transcript does not support the allegation. Whilst the transcript does reveal that there were occasions when it was apparent that his Honour was keen for the trial process to be "kept going" and on occasions it appears from a reading of the transcript, his Honour expressed some frustration at counsel's submissions, that is a long way from providing material that would indicate that the appellant did not receive a fair trial. I would only add that to the extent that a similar issue is raised in ground 14, where transcript references are provided, the issue as framed under that ground will be given consideration there. 208 The appellant also contends that from time to time he fell asleep during the trial. He contends that this interfered with a fair trial in a number of respects. First, he says that, having given written instructions to his counsel to make an application for a separate trial of the s 10(1)(b) offences (see appeal ground 9), the appellant says that it is apparent that he then fell asleep and did not hear the terms in which the application was made. The appellant says that the transcript shows that after the application was made, his counsel asked the trial judge for an opportunity to get further instructions (he says that his counsel woke him and informed him the application had been made whilst he was asleep) and counsel then told the trial judge he didn't want to be heard further on the matter. This is supposition. The transcript reveals that after the Crown made its submissions on the application, his Honour asked Mr Lowe whether he wanted to say anything further. Mr Lowe responded: "Yes, I just need to obtain some instructions if your Honour pleases. I don't wish to be heard any further …" 209 There is no indication in the transcript as to whether Mr Lowe spoke to his solicitor or spoke to the appellant. There is no indication as to whether the appellant was asleep. Rather, the transcript of Mr Lowe's submissions to the judge are recorded as I have put them. If the appellant wished to contend that he was asleep during this period, evidence would be necessary to establish that was the case. There is none. 210 The appellant also submits that he was asleep during the Crown address. Mr Lowe raised this with his Honour at the conclusion of the Crown address, and indicated that he just wished to make that statement for the record. However, there is and was no evidence as to the period that the appellant was asleep, or whether counsel otherwise found himself unable to get instructions. 211 The Court has no sense whether the appellant had micro sleeps of a minute more or less or longer sleeps. In the absence of evidence of these matters, it has not been demonstrated that the trial, for this reason, was not fair. 212 The appellant raises other occasions when he was asleep during the trial. On the afternoon of 17 November 2004, counsel informed his Honour that he had noticed on six separate occasions his client had his eyes closed. Counsel said that his instructions were that at that stage of the afternoon it was very difficult for his client and he asked for a short break. The Crown did not object, commenting "I think it's probably difficult for everyone really". His Honour responded by saying the case was "a bit intrinsically soporific anyway" and that he had observed the jury exhibiting signs of tiredness during the afternoon, during the presentation of what had been a largely documentary case. However, his Honour had already indicated that he was proposing to adjourn at that point and informed counsel that thereafter the Court would have a break for five minutes at about 3pm each afternoon (Appeal book 401). 213 The appellant said that there were occasions when he was asleep not only on that day, but on the previous day, the second day of the trial, and the fourth day. It is not apparent from the record how long the appellant was asleep, although on each occasion when the matter was drawn to his Honour's attention, he responded by providing an adjournment. Counsel did not submit to his Honour on these occasions that he was unable to obtain instructions. Rather, on the only day in which he raised the matter of instructions, he did so in terms that he had turned around on two occasions to obtain instructions and his client had been asleep. However, counsel did not complain that he was then unable to get instructions. 214 The appellant further complains that even though the trial judge had informed the jury of the appellant's sleep apnoea and the need for a break every hour or so, his Honour refused to give the appellant a break immediately before his cross-examination commenced (submission 12.08). This is correct, but it must be put in context. It is apparent that the examination in chief finished late in the afternoon. At the end of the examination, appellant's counsel stated "I might … put on the record, that I think it's advisable that a five minute break occur at this stage, but I'm in your Honour's hands." 215 His Honour responded saying they had had a break at a quarter to four and that the appellant looked reasonably alert, and had been answering the questions in an alert way. Cross-examination then commenced. Nothing was raised thereafter that the appellant was having difficulty staying awake. In my opinion, the transcript does not reveal that the continuation of the trial in the circumstances was such that the appellant did not have a fair trial. It does appear that he nodded off from time to time. As his Honour observed, that is not unusual in a courtroom, in any event, particularly when a matter proceeds on largely documentary evidence. The appellant's counsel did not complain to his Honour that he was unable to get instructions at any time in respect of any relevant issue. In my opinion, the transcript does not disclose that the trial was not fair. Further, if it was the appellant's case that he had been asleep with any degree of frequency, or that for any period of time he had not understood what was going on, so as to be in a position to give instructions, then evidence of this should have been adduced, either by himself and/or his legal representatives. In the absence of evidence and in circumstances where it is not apparent from the transcript that the trial was not fair, the appellant has failed to make out this ground of appeal and it should be dismissed. Ground 14: trial judge's interference with the orderly presentation of the case 216 The appellant contends that the trial judge erred in interfering with the orderly presentation of the case for the Crown; in the presence of the jury, his Honour treated any point favourable to the Crown "with benevolence and approval" and, contrastingly, dismissing any applications by the appellant "with derision and scorn" and/or belittling and attacking defence counsel, all in the presence of the jury. The appellant further alleged that the trial judge suborned the role of the jury as the sole arbiter of issues of fact. 217 I have read the instances relied upon by the appellant in paras 14.1 and 14.2 of his submissions, in which it is contended that the trial judge interfered in the manner in which the Crown was conducting its case. With respect, this submission is not made out. These instances indicate occasions when the trial judge himself asked questions of the witness or was otherwise regulating the procedures in his Court. 218 The next point, that the trial judge treated any point favourable to the Crown with benevolence and approval, is also rejected. An examination of a selection of the passages relied upon by the appellant reveal that his Honour did no more than properly regulate the Court for the purposes of the trial. I do not propose to set out any of the passages referred to, other than to state, in general terms, that his Honour at various times explained what an exhibit was at the time it was tendered, or himself sought to clarify a particular answer from a witness. 219 The next allegation relates to the manner in which his Honour treated defence counsel. The allegation is that his Honour belittled and attacked defence counsel in the presence of the jury. An examination of the transcript again reveals that this allegation is not made out. An example might be taken from the first of the transcript passages upon which the appellant relies: "Q. She indicated that she had applied for a passport during that record of conversation -- Crown Prosecutor: Your Honour -- Witness: With respect sir if I could -- Crown Prosecutor: Just stop. I object to this question. His Honour: Yes. Unless you can demonstrate how this evidence is properly admissible Mr Lowe, I reject it. Lowe: Yes. I know it's a little bit early -- His Honour: It's a third party assertion made by a person not in court which can't be tested. I don't see for myself how it is admissible. Lowe: Well it is relevant to – it's an issue that really should be explored in the absence of the jury. His Honour: I don't know about that. Can you tell me in one or two sentences how you say it's admissible? It might be relevant, it doesn't mean it's admissible. It transgresses Mr Lowe, does it not, to hearsay? Lowe: I accept what your Honour says. I might return to it at an appropriate stage if it's convenient to your Honour. His Honour: All right." (Tr 18 November 2004, p167 lines 1-31) (Appeal book 413) 220 The next passage relied upon by the appellant was not in the presence of the jury. There was nothing in that portion of the transcript which would indicate any inappropriate or belittling comment by his Honour. 221 In the next passage relied upon (18 November 2004, p 184 lines 50-56) his Honour made two comments to the appellant's counsel in the presence of the jury after an objection taken by the Crown Prosecutor to a question asked. His Honour said: "I don't quite understand the latter part of that question Mr Lowe in relation to the address." Mr Lowe responded with what appears to be a question. His Honour then said, " I reject it in that form. I understand the e-mail address part ". That does not fit the description of " belittling or attacking defence counsel ". 222 In the next section of transcript, on the same day, at pp 187-189, his Honour again was responding to an objection taken by the Crown Prosecutor. On this occasion, his Honour said to Mr Lowe, "[y]ou can't win on this basis Mr Lowe". That may have been a non-legalistic way of indicating to counsel that these questions were irrelevant. I do not see, however, that comment would so taint the trial that it became unfair. The appellant asked some further questions of the witness and again the Crown interrupted with what appears to be the commencement of an objection. His Honour interposed with the comment, "[t]oo broad Mr Lowe". Mr Lowe responded, "I accept that your Honour". The appellant's counsel asked a further question and his Honour rejected it without any objection being taken, on the basis that it still remained too broad and his Honour thought that whatever the answer that might be given to the question, it would be worthless to the jury. His Honour was engaging in appropriate judicial conduct in ensuring that relevant questions were asked. 223 Another example relied upon was, on 24 November 2004, at Tr 401 (Appeal book 661), where his Honour said: "I'm against you Mr Lowe, I adhere to my earlier ruling. In my view the evidence that you seek to adduce about the later deaths of these people in Victoria is irrelevant." Mr Lowe then made a further submission on the same point, to which his Honour responded: "I'm against you Mr Lowe as I have said twice. Are there any other questions that you want to ask of Mr Clarkson?" His Honour's firmness as it appears from the transcript could not be said to be belittling counsel. 224 I do not propose to continue to analyse the passages relied upon. The matters that I have referred to indicate that there was nothing untoward in the manner in which his Honour conducted the trial. 225 The appellant next contended that his Honour forced his counsel to make submissions on points of law in the presence of the jury and then dismissed some ex tempore with derision and scorn. He relies, amongst other passages, on his Honour's rejection of events that happened after the commission of the offences as being relevant to the appellant's state of mind. Again, one example will demonstrate the types of exchange that occurred between the trial judge and the appellant. On 24 November 2004 at Tr 382 (Appeal book 642), his Honour said: "His Honour: Q. How can things that have happened after be relevant to your client's state of mind at the time he's alleged to have made these false applications. Lowe: There is authority for that. His Honour: What is it, it doesn't seem logical to me. I reject it Mr Lowe." 226 I do not consider this is a comment of "derision or scorn". 227 An examination of his Honour's questioning during the course of the appellant's evidence likewise reveals that his Honour did not inappropriately enter the fray in a manner which would prejudice the conduct of the appellant's defence. For example on 24 November 2004 at Tr 374 (Appeal book 634), the appellant had given an answer in relation to his associations with underworld figures as follows: "A. Bobby Dix was an old style painter and docker. I knew him from A Division when I was in gaol. I was surprised he was involved in the attempt on me but then again I guess nothing really surprises me. His Honour: Q. What was the last part, nothing would surprise you? A. Nothing really surprises me but I wouldn't have thought he would have been involved in an attempt on me but there we are." Counsel then continued the questioning. His Honour then sought some clarification about the answer in relation to Bobby Dix. His Honour asked: "… you say that you were surprised at an attempt on you by Bobby Dix … [a]n attempt to do what?" The appellant replied that he was talking about an attempt on his life. 228 Another example, on the next day of trial, also indicates that his Honour's questions and/or directions were not inappropriate. The appellant was being cross-examined on the passport and driver licence applications in the name of Barton and a drivers licence in the name of Papps. The appellant was asked by the Crown Prosecutor: "Q. And you knew you weren't entitled to get a licence in the name of Jason Papps, given that you had all of these other licences, didn't you? A. Well, that's a complex matter of law." His Honour then intervened: "No, no, it's not a complex matter of law Mr Clarkson, just answer that question will you?" (Tr 25 November 2004, p 439) (Appeal book 699) Again, his Honour was doing no more than ensuring that a witness was kept to the point. He was entitled to do so. 229 The next significant allegation is that his Honour was biased, because he had granted leave to a journalist to have access to the Court exhibits, without reference to either the Crown or the defence. This allegation was put on the basis that "the learned trial judge gave the impression that he had covertly given the exhibits to the reporter". The appellant submitted that the application by the journalist to have access to the exhibits was not heard in open court, "but appeared to be a private adventure alone of Hosking DCJ" such that it raised a reasonable apprehension of bias. 230 On 22 November 2004, in the absence of the jury, counsel raised with his Honour the appellant's concern as to how the photographs on the various applications came to be in the Sydney Morning Herald. His Honour informed the appellant that he had granted leave for the journalist to have copies of the exhibits on the basis that they had been documents tendered publicly, in a public hearing, and his Honour saw no reason to deny access to them. His Honour said, in his understanding, that was commonly done. Mr Lowe responded, "I'm just making sure the due process is followed, your Honour". 231 His Honour responded: "Due process was followed, they made an approach through my associate, there's been a reporter here for most of the trial as I understand it." (Tr 22 November 2004 p 299) It was not suggested that this was not a usual practice of the Court. In my opinion, nothing has been demonstrated that indicates his Honour followed a wrong or inappropriate process. Ground 15: the "five year old child rule" 232 The appellant contends that his Honour erred in law and fact in formulating and then applying as a threshold test a "five year old child rule" in finding that the defences raised by the appellant could only be considered by the jury if the trial judge was satisfied that a five year old child could see there was a defence and in finding, without receiving and considering evidence of the facts, that that defence was available as a matter of law. 233 Towards the conclusion of the submissions relating to the availability of the defences, his Honour requested counsel to provide him with submissions that indicated that the view he had taken earlier as to the application of the law of duress in circumstances such as this did not represent the law. At this point, the appellant's counsel was referring to the case of Loughnan. His Honour then referred to Rogers, at which point the appellant's counsel submitted to his Honour that it was a "jury question". His Honour rejected that submission, stating that the evidence was not capable of establishing the defence. After a further submission, his Honour stated to the appellant's counsel that he was not going to allow the evidence to go to the jury. There was this exchange: "Mr Lowe: I hear what your Honour says and I would ask that I now be able to obtain instructions about releasing this particular witness [DSS Swindells] now that your Honour has indicated that you would be taking all those defences away from the jury. His Honour: Yes, unless the evidence is going to be different Mr Lowe. Unless the evidence is going to rise above the evidence that I have before me at the moment because I can tell you Mr Lowe that the criminal law is not a joke and I am not going to allow it to be used for a purpose which will make the criminal law look ludicrous in the eyes of the jury in asking them to consider defences which an intelligent five year old would think were laughable. How long do you want?" (Appeal book 686-687) 234 The appellant's elevation of this comment to being the basis of a legal principle which his Honour applied, with respect, raises a non-issue, and ought to be dismissed. The other submissions advanced by the appellant in respect of this ground have been considered in relation to issue 3. Ground 24: prohibiting the appellant from referring to his notes while giving evidence and being cross-examined 235 At the beginning of the appellant's examination, when being asked introductory questions as to his name, date of birth, schooling and other educational and professional background details, the appellant asked whether he could refer to his notes. The Crown stated that at that stage, there was no particular objection (Appeal book 583). 236 At a much later time in his examination, when the appellant was giving evidence of his association with different persons, the Crown objected to his using notes. No objection was taken by counsel at that point. Indeed, counsel indicated to the Court that the examination in this area would not go on much longer. The appellant contends that his evidence then deteriorated, became confused, vague and unresponsive. A reading of the transcript does not support the submission, except to the extent that when asked about when a particular attempt on his life was made, the appellant responded by saying that he did not have his notes. When asked when, roughly, it was, he responded "Roughly 93-94 and I think [another person named] died in 97". 237 It is not usual to allow a person to refer to notes in the course of giving evidence. No objection was made and, as I have stated, the appellant's evidence remained cogent even though there were some matters about which he did not have specific recall, but those matters were not of any critical importance in his defence. I would reject this ground. Ground 25: diminished responsibility 238 The appellant contends that the jury should have been directed that the appellant's conduct was severely affected by his mental condition, which substantially impaired his capacity to understand events and control his actions. As I understand this ground, the diminished responsibility related both to the appellant's alleged mental condition that he attempted to raise by way of a defence, in that he was under such duress that he had a defence to the s 10(1)(a) and s 184 offences and also to his other health conditions which were the subject of his applications that he was unfit to be tried. Diminished responsibility is a defence that relates to homicide offences only. This ground of appeal is irrelevant and is dismissed. I have otherwise dealt with the allegations that relate to his allegations of unfitness to plead and the defences. Ground 30: jury of 12 239 The appellant contends that as a matter of law he was entitled to a jury of 12 persons to hear and determine the Commonwealth appeal. 240 During the course of the appeal a juror became ill and was discharged and the trial continued with 11 jurors. In this regard, s 22 of the Jury Act 1977 (NSW) (the Jury Act) provides: "22 Continuation of trial or inquest on death or discharge of juror Where in the course of any trial or coronial inquest any member of the jury dies or is discharged by the court or coroner whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial or inquest properly constituted if: (a) in the case of criminal proceedings, the number of its members: (i) is not reduced below 10, (ii) is reduced below 10 but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or (iii) is reduced below 10 but not below 8 and the trial has been in progress for at least 2 months, (b) in the case of civil proceedings, the number of its members is not reduced, in the case of a jury of 4, below 3 or, in the case of a jury of 12, below 8, or (c) in the case of a coronial inquest, the number of its members is not reduced below 4, and if the court or the coroner, as the case may be, so orders." 241 The appellant contends that Commonwealth law demands that the trial of Federal offences be by a jury of 12. Whilst acknowledging that s 68 of the Judiciary Act provides that the practice and procedure of the State where a person is tried are to apply, he says that generally, Commonwealth law is not overridden: see the Constitution s 80. It followed, on his argument, that a provision such as s 22 of the Jury Act did not override the provisions of the Constitution. Section 80 provides: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." 242 The question whether a trial which continued with 10 jurors after the exercise of the discretion otherwise conferred by s 22 contravened the Constitutional safeguard of trial by jury provided for in s 80 was considered by the High Court in Brownlee v The Queen (2001) 207 CLR 278; [2001] HCA 36. Gleeson CJ and McHugh J held at [23]: "Neither history, nor principle, nor authority warrants a conclusion that the meaning of "trial … by jury" in s 80 of the Constitution is inconsistent with the provisions of s 22(a)(i) of the Jury Act ." See also Gaudron, Gummow & Hayne JJ at [71]-[73]. 243 It follows that this argument should be rejected. 244 Finally, the appellant contends his Honour erred in the exercise of his discretion under s 22. No error has been demonstrated. The trial was well advanced by that stage. There was no error in taking into account the fact that the charges were "old". Indeed, that was a relevant consideration in having the trial continue with 11 jurors. 245 It follows that ground 30 should be dismissed. Conclusion on the appeal against conviction 246 It follows from the above that the appeal against conviction should be dismissed. 247 I have had the opportunity to read in draft the reasons of Howie J relating to the application for leave to appeal against sentence. I agree with his Honour's reasons and proposed orders. Application for stated case 248 As indicated above, there are related proceedings in the Court of Appeal proceedings CA 40803/06 including a stated case. Associated with the stated case was a question relating to a stated case in respect of the s 184 charges. According to correspondence between the appellant and the Commonwealth DPP, the appellant proposed to add a ninth question to the case to be stated case relating to the charges under s 184 of the Crimes Act. The terms of the proposed question were: "Did I err in law in not finding that there was no case to answer in relation to the False Personation Counts in the Indictment preferred pursuant to section 184, Of the Crimes Act 1900 (NSW) and in not directing the jury to acquit the appellant on these counts on the defence application made at the end of the Crown case." 249 Section 5A of the Criminal Appeal Act provides that a judge before whom a person is tried and convicted on indictment may submit a question of law relating to the trial or conviction to the Court of Criminal Appeal for determination. Any question so submitted is to be dealt with as if it were an appeal under s 5. 250 This question was not submitted to the Court in the case stated by his Honour. It is not clear whether this was by oversight, but in any event, this question was raised in precisely the same terms as ground 26 on the appeal and has been dealt with on that basis. 251 Having regard to my conclusions in respect of the grounds of appeal and my agreement with Howie J in respect of the application for leave to appeal against sentence, the orders I propose are as follows: 1. Appeal against conviction dismissed. 2. Application for leave to appeal against sentence allowed but appeal against sentence dismissed. 252 SULLY J: I agree with Beazley JA and with Howie J. 253 HOWIE J: I have the benefit of reading the judgment of Beazley JA in draft and agree for the reasons given by her Honour that the appeal against conviction should be dismissed. 254 The appellant was convicted of five offences contrary to s 10(1)(a) and seven offences contrary to s 10(1)(b) of the Passports Act (Cth) and four offences contrary to s 184 of the Crimes Act (NSW). Judge Hosking sentenced the appellant to a total term of imprisonment of 2 years and 4 months. In effect he was sentenced for the Commonwealth offences to 19 months and for the State offences to a cumulative 9 months. The Judge did not impose a non-parole period or a recognisance release order. 255 The maximum penalty for the offences in contravention of the Passports Act was relevantly imprisonment for 2 years and for the offences against s184 imprisonment for 7 years. 256 The appellant was born in 1950. He had convictions in Victoria for offences of dishonesty in 1985 and again in 1987 for which he received a gaol sentence involving a minimum period in custody of 8 years. A pre-sentence report revealed that the appellant was released to parole in Victoria in 1991 and completed the parole period in 1995. The Judge took into account that there was some question unresolved about some of the Victorian convictions and that there might be an inquiry regarding them. 257 The appellant had come to Australia from New Zealand in 1973 on the break up of his first marriage. He remarried but that ended in divorce in 1980 without children. He is a lawyer and worked initially with the Bank of New Zealand. He hopes to complete a master's degree in law. He was on a disability pension as a result of health problems including sleep apnoea and hypertension. 258 He told the officer preparing the report that he felt justified in committing the offences as without having done so he would be dead. He was described as an intelligent person who had used his abilities for illegal purposes. He was assessed as not benefiting from supervision by the Probation and Parole Service. He had been in custody prior to being sentenced since he was convicted on 26 November 2004. 259 He was sentenced on 11 April 2005. The Judge found that helping persons to obtain passports had the potential to assist them in committing other offences. He described the offences as involving a scheme of "some sophistication and involved elaborate planning". The Judge found that the passport offences stood towards the upper range of the seriousness of such offences and the licence offences of "slightly lesser seriousness". He held the general deterrence should be reflected in the sentence as well as specific deterrence in light of the absence of any remorse shown by the appellant for his offending. 260 The appellant has raised a number of grounds of appeal in relation to the sentences imposed. He has filed lengthy written submissions in relation to each ground of appeal and did not speak to them orally at the hearing. The first of the grounds relating to sentence, Ground 31, asserts that the sentence is manifestly excessive. The appellant's written submissions in support of this ground contains a completely unfounded assertion that the Judge found the task of sentencing the appellant more pleasant than he should have done. This allegation is based largely upon the appellant's complaints of bias on the part of the Judge during the trial, an allegation that Beazley JA has rejected. 261 It is also submitted that the Judge sentenced the appellant more harshly by reason of the lies that he believed the appellant had told in explanation for the offences. There is nothing to suggest that he did punish the appellant in this way. The Judge was fully entitled, in my view, to indicate that the appellant's explanation for the offending was "bordering on the farcical". The fact that the Judge may have disbelieved the appellant's version of events meant that there was no remorse for his offending and might also have raised doubts about the appellant's rehabilitation. To that extent the appellant's lack of honesty in his evidence could have legitimately resulted in a longer sentence than might otherwise have been the case. 262 It was also submitted that the Judge failed to follow Johnson v The Queen (2004) 78 ALJR 616 and Pearce v The Queen (1998) 194 CLR 610 but I can see nothing that indicates that the Judge wrongly determined the individual sentences or the manner in which they should be accumulated to give the overall sentence. The appellant seems to believe that it is significant that the Judge was Senior Counsel before the High Court in Pearce. Even if that were so, I do not see that it has the slightest relevance to any of the grounds of appeal or the correctness or otherwise of the sentences imposed upon the appellant. 263 The appellant set out a table purporting to show that, after taking into account remissions and a discount of a third for the fact that he was serving his sentence under a more strict custodial regime, the sentence imposed would have been the equivalent of a head term of 7 years. In my view these calculations are misguided because there is no discount for remissions applicable and no set discount to be applied according to the nature of the custody being served. 264 Ground 32 complains that the Judge erred in not imposing wholly concurrent sentences because the offences fell within what the appellant described as "one multi-faceted course of conduct". It has been held repeatedly in this Court that a sentencing judge has a discretion whether to order that sentences for multiple offences be concurrent or cumulative. Generally, however, the overall sentence must reflect the overall criminality reflected in the offences for which sentence is being imposed and the issue of totality of criminality will determine how the sentences are to be structured. It has been made clear that concurrent sentences are not required simply because the offences form part of a single act of criminality or arise from a single course of criminal conduct. Here there were separate acts of dishonesty in relation to each of the offences and in my opinion there was no error in the decision of the Judge to cumulate some of the sentences. This ground should be rejected. 265 Ground 33 complains that the Judge did not take into account that the sentences were to be served in this State where there are no remissions available. Section 16G of the Crimes Act (Cth) use to require that a court sentencing for Commonwealth offences take into account the absence of remissions in the jurisdiction where the sentence was to be served. The result was that in this State sentences for Commonwealth offences were usually reduced by about one third to compensate for the absence of remissions. The appellant claims that he should have received that discount. However s 16G was repealed and ceased to operate from 16 January 2003. The effect of the repeal of that provision was considered in a number of decisions of this Court starting with R v Studenikin (2004) 60 NSWLR 1 through to R v Bezan (2004) 147 A Crim R 430. In effect those decisions hold that there is no longer any reduction of sentences because of the absence of remissions but that sentences to be imposed after the repeal of s 16G were not to increase automatically by a third. In the present case there was no reason for the Judge to take any different approach in sentencing the appellant simply because the offences occurred before the section was repealed. The ground must be rejected. 266 Ground 34 is to the effect that the Judge erred in failing to take into account the period of time that had elapsed since the offences were committed. The appellant refers to the well-known principle set out in R v Todd [1982] 2 NSWLR 517 about the relevance of delay in sentencing. However I do not believe that the offences should be treated as "stale crimes" as that expression is used in Todd. Much of the delay was no doubt due to the fact that the appellant was pleading not guilty and some of it as a result of the appellant seeking adjournments on medical grounds. Although the appellant was not to be punished for causing any delay, there was no reason why it should have resulted in any great leniency. The appellant was on bail throughout the period before he was convicted, but the conditions of his bail were not so rigorous that any account should have been taken of them. There was no material to suggest that the appellant had been prejudiced in any way by the delay nor was there anything to suggest that the delay had any other impact upon the sentences to be imposed for the offences. The effect of any rehabilitation that the appellant might have achieved in that time was diminished substantially by his lack of remorse for the offences and his belief in his justification for his conduct. The ground should be rejected. 267 Ground 35 complains that the Judge did not take into account sufficiently the appellant's health problems at the time of the commission of the offences. The Judge indicated explicitly that he did take that matter into account but the appellant submits that his Honour should be seen as being "disingenuous" in stating that he did so. It was suggested that the Judge's statements and conduct throughout the trial indicated that he did not believe that the applicant was seriously affected by health disorders. I do not believe that there is any basis for this criticism and I do not see why the Judge should not be taken at his word. 268 In any event the commission of the offences were unconnected to his health problems and his ill health did not explain or mitigate the criminality involved in the offences. There was no evidence that the health of the applicant was a matter that would result in imprisonment being significantly harsher for him. In any event there is little mitigation to be found in poor health that existed at the time of the commission of offences. It has frequently been stated that ill health is not a licence to commit crime. Contrary to the appellant's submissions there was no reason to diminish the impact of deterrence by reason of the applicant's health problems. The ground has no substance. 269 Ground 36 complain that the Judge did not order that part of the sentence be served by some means other than full-time custody, such as periodic detention or parole. It was submitted that the Judge failed to fix a period of parole because he found it too difficult to do so. This impertinent submission overlooks the fact that it is not unusual for Judges of the District Court to impose sentences for both Commonwealth and State offences on the one offender and appear to be able to do so with little difficulty in understanding and applying the different provisions. The Judge determined that the minimum time in custody that the appellant should serve for these offences was the sentence imposed. He gave as a reason for not fixing a parole period or a release order the manner in which he was structuring the sentences that is by a series of short overlapping sentences. It can be assumed that the Judge saw no purpose in requiring the appellant to serve a period on parole or under a recognisance. In light of the appellant's age, criminal record and the lack of any perceived benefit to be received from supervision, the Judge was entitled to impose what was in effect a fixed term of imprisonment. In my view it was an entirely appropriate method of dealing with the appellant. If this Court were to intervene to specify a period on parole, it could only do so by increasing the overall sentence to be served by the appellant, a course that this Court would not adopt on an appellant's appeal. The ground fails. 270 Ground 37 raises an error by the Judge in referring to the fact that the appellant was to be sentenced for seven offences under s 10(1)(a) of the Passports Act when there were only five offences under that section. It is clear that this was a mere slip on the part of the sentencing judge who was aware that there were twelve offences under that Act. The offences each carried the same maximum penalty regardless of the section breached. The error could not in my view have resulted in a harsher sentence than would have been appropriate for the offences of which the appellant was convicted particularly having regard to the manner in which the Judge sentenced the respondent, each of the sentences for the passport offences being identical. This ground fails. 271 Ground 38 complains that the Judge sentenced the appellant on the basis the he was "a very dishonest man" because of the sentences imposed in 1985. As has been noted the appellant was sentenced to a total minimum of 8 years imprisonment in Victoria for offences of dishonesty. The offences before his Honour were also dishonest offences involving as they did false statements and misrepresentations of facts. The appellant complains that the criminal record placed before his Honour erroneously showed that he had a conviction for perjury that he denies. He states that he instructed his legal representative that this was so but no point was taken at the hearing. In light of the other offences for which he was convicted and sentenced in 1985, the additional perjury conviction, even if it were an error, would not have made the slightest difference to an assessment of the appellant as a dishonest person. The Judge was clearly entitled to take into account the appellant's criminal record. In my opinion there was no miscarriage of justice arising from his criminal record or the Judge's comments upon it. This ground should be rejected. 272 Ground 39 complains that the Judge erred in remarking that only one of the appellant's passports had been detected when a number had been recovered. This was hardly a matter of such moment that, had the Judge been in error, it would have resulted in this Court holding that his discretion had so miscarried as to warrant this Court's intervention. But in any case the evidence was that only one passport had been recovered, that for Virginia Yan. 273 Ground 40 concerns the fact that the appellant had served his period in custody prior to sentencing as a "SMAP inmate". It was submitted that the Judge should have taken into account that he had served a period of custody under harsher conditions and also that he may be required to serve the balance of his sentence under such conditions in the future. It has been noted by this Court that, just because a person is serving a sentence in some form of protective custody, it does not necessarily follow that those conditions would be harsher than the conditions for prisoners in the normal prison population: R v Mostyn (2004) 145 A Crim R 304. This Court has emphasised that, if an offender wishes to receive some mitigation of sentence by reason of the conditions of imprisonment, it is for the offender to lead evidence of what those conditions entail. There was no evidence before the sentencing Judge of the conditions of the appellant's imprisonment and none before this Court. There is merely a bald assertion that the conditions of his imprisonment were more onerous. The appellant does point to the fact that his legal representative was intending to obtain a letter from the gaol authorities as to the conditions of the appellant's imprisonment but that was not forthcoming by the time he was sentenced. Contrary to the appellant's assertion, there was no requirement for the Judge to postpone passing sentence until that information was placed before him. In any event there is no material before this Court to justify any reduction in the sentences and this ground should be rejected. 274 Ground 41 asserts that the Judge erred in not finding that the appellant had good prospects of rehabilitation. This was a question of fact for his Honour to determine on the material before him. The Judge was aware and expressly mentioned the fact that the appellant was undertaking further studies and hoped to obtain a Master's degree. Other than that there was little evidence to support a positive finding that the appellant had good prospects of rehabilitation. The appellant in his submissions relies upon his progress in dealing with his health issues, but that does not seem to me to advance the matter. There was, however, evidence against the appellant's rehabilitation and that was his attitude to his offending. I would not be prepared to find that he had good prospects of rehabilitation if it were necessary for this Court to resentence him. At best the evidence is neutral: at worst his sense of justification for what he did suggests that the appellant will take any action that he thinks is necessary even if it means planning and committing criminal offences. 275 Grounds 42 to 46 relate to an assertion by the appellant that the Judge in effect refused to allow the appellant to give or call evidence at the sentencing proceedings. The appellant asserts that he wished to give and call evidence as to the background to the offending including the defences raised during the trial. He also asserts that he wished to call witnesses to give evidence as to the appellant's character and lifestyle and the effect on him of the period he served in custody in Victoria. 276 Notwithstanding that the Judge had refused to permit the accused to rely upon self-defence, duress, or necessity during the trial, both defence counsel and the Judge accepted that evidence of those matters could be relevant to the sentences to be imposed. The difficulty for the appellant was that the Judge did not accept his explanation. On 1 April 2005 in the proceedings after conviction the following took place: Defence Counsel :………I should advise your Honour that the issue of duress, you may [remember] that during the occurrence of the trial a defence of duress of circumstances was raised and taken away by your Honour from the jury's consideration, that nonetheless my client's belief such as it was as to why it was necessary to commit these offences is a relevant fact on sentence. HIS HONOUR: Well if I accept he had that belief…sometimes it was a bit hard to accept. DEFENCE COUNSEL: There is a, I do have a witness I think outside the Court who has known Mr Clarkson for a period of years and will testify as to issues of his evasiveness in relation to disclosing where he lives et cetera. If your Honour wishes to hear that evidence I can call that-- HIS HONOUR: Well -- DEFENCE COUNSEL: But it goes to the issue very much of the duress of circumstances that he did this because he was afraid of what would happen in terms of what was happening in the Victorian underworld in those years up to 2000. Those are my instructions your Honour. HIS HONOUR: Well look it is a matter for you… whether you want to call that evidence or not. All I direct your attention to is this fact that some of the evidence that your client gave before the jury seemed to be bordering on the bizarre to me. There then followed a discussion between defence counsel and the Judge as to the relevance of the material that the appellant had raised during the trial. 277 The appellant did not give evidence at the sentencing proceedings and no further application was made by the appellant or his legal representative to call witnesses. There was nothing that the Judge had done during the trial that prevented the appellant giving or calling evidence at the sentencing hearing and it is clear that counsel did not believe he was precluded from calling such evidence. The Judge, however, had the evidence given by the appellant during the trial as to the background to the offences but was not prepared to accept it as being in any way mitigating of the offences. The Judge said during the sentencing remarks that he regarded the evidence "with great suspicion" and that the appellant's account of needing the passports to secure accommodation as "highly improbable". The appellant had the onus of proving his account on the balance of probabilities so far as the sentencing proceedings were concerned if it was to be used to mitigate the seriousness of the offending. The Judge was perfectly entitled to reject the account or at least to find that it did not mitigate the seriousness of the offences given his view that they involved some sophistication and elaborate planning. 278 The appellant in his written submissions stated that named persons were present at the hearing and could have given evidence on his behalf. Presumably these include the person to whom defence counsel referred in the passage just quoted. However, no witnesses were called before the Judge and no application was made to call them before this Court. There is no material from the appellant's legal representatives explaining why they were not called on sentence. It seems counsel decided against taking that course. But it is clear that defence counsel did not think that anything that had occurred in the trial precluded him from calling witnesses on the issue of the accused's explanation for the offences. There was no reason for not calling other witnesses that might be relevant to the appellant's rehabilitation after release from custody if those witnesses were available. The appellant complains that the Judge was obliged to hear such evidence but there was no attempt made to call it and no reason has been given for not having done so. 279 The appellant further complains that he wanted to give and call evidence as to the effect upon him of other criminal proceedings in Victoria and the sentences he served in that State in what he described as "filth and squalor" as a result of what he says was a corrupt criminal justice system. The impact of the past prosecutions or sentences served by the appellant was not a matter raised during the sentencing hearing and he cannot now complain that the Judge did not hear evidence on that topic. These grounds should be rejected. 280 Ground 47 complains that the Judge took into account irrelevant material and failed to give weight to relevant considerations. In particular it is said that the Judge gave improper weight to the appellant's criminal antecedents, the sophistication in the methodology in the commission of the offences, the effect upon the "protocols for the issuing of Australian passports" and the "danger posed to the National Security of Australia and other countries". The appellant refers to the fact that the Judge said that he would "factor in" that some of the convictions in Victoria might be subject to an inquiry. The appellant complains that it is not clear what the Judge meant by that remark and that in some way he might have used it to his disadvantage. With respect I am not sure what the Judge meant either but it is impossible to see how it was to be taken other than in the appellant's favour. In any event the appellant's record had limited value and merely showed that his dishonesty in committing these offences was not an aberration. There is no merit in the complaint that the Judge increased the sentences by reason of the earlier record or that he used the record to override the fact that the appellant had successfully completed his period on parole without further offending. 281 The appellant notes that, although the scheme employed to obtain the passports and license was "sophisticated and complex", they would inevitably have led back to him if they were investigated. He points out that the offences occurred prior to the 9/11 attack upon the United States and that since that event the "landscape had changed". He points out that the passport laws have now been tightened. Similarly the danger to Australia had been reduced by the change of laws and protocols for obtaining passports. He submits that the seriousness of the offences should be considered at the time of the offending and not by current circumstances. 282 However the only relevant statement made by the Judge was: "It is clearly contrary to Australia's interests and perhaps even security for people to make false passport applications or to assist others in doing so. I cannot see how that statement overestimated the seriousness of the appellant's offending or gives rise to the complaint being made by the appellant. It seems to me to be a relatively uncontroversial statement and applicable whatever be the "landscape" at the time of offending. There has been no miscarriage of the Judge's discretion by taking into account irrelevant considerations. 283 Ground 48 complains that the Judge erred in not receiving relevant facts including: that the appellant was not the principal offender in the passport offences or involved in offences committed by persons holding the passports; the appellant held an Australian passport; the appellant held a NSW driver's licence; the offences were inexorably linked to him and would have inevitably been detected; the appellant did not use the passport for travel; the appellant did not use the driver's licences to drive; he did not use the passports or licences to commit other offences. 284 The appellant asserts that the s10(1)(b) offences were less serious than the s10(1)(a) offences and yet he was given the same penalty. He submits that there was no evidence that he was involved in the criminal purpose of the persons using the passports. Both offences carried the same maximum penalty and it is clear that the Judge treated them as being part of the same criminal enterprise whatever that was. Because the appellant's explanation was not accepted there was no evidence of what his criminal purpose was for making the false statements. The Judge was not required to assume that criminality involved in one type of offence was any less serious than in the other type. In any event the sentence for each offence was only 9 months as against a maximum penalty of two years so it could not be said that the penalties for any of the offences was excessive. 285 The appellant under this ground also asserts that the Judge must have taken into account an allegation, said to be erroneous, in the Crown submissions on sentence that the respondent committed the offence in Count 12 while on bail. The appellant accepts that there was no reference to this fact made by the Judge during the sentencing proceedings or in his remarks, yet asserts that the Judge was referring to this fact in the following passage in the sentencing remarks in the phrase underlined: "…………Far from being remorseful, the whole tenor of the offender's evidence during the trial, was that he considers that he acted perfectly reasonably in the circumstances. Whether he is self-delusional or whether he considers that the laws prohibiting what he did somehow did not apply to him , I do not know. However, it is necessary to impose sentences which will make it plain to the offender that what he did represented serious breaches of the criminal law" It is clear considering the whole passage that the Judge was referring to the applicant's attitude in his explanation for the offending rather than referring to the allegation that he committed one of the offences on bail. 286 The fact that the appellant might have been entitled to hold a passport and did hold one or that he was entitled to hold a driver's licence and did hold one is completely irrelevant in my opinion as a matter of mitigation. Nor is the fact that he did not use the passport for travel or the licences to drive a matter of any significance. Although the appellant rightly submits that the offences involving the licences were not in the worst category of an offence under s 184, the Judge did not say they were and the sentence of 6 months on each as against a maximum penalty of 7 years does not suggest that he treated them as being of the most serious nature. Although it is not asserted that the appellant was using the passports to commit crimes, he was not sentenced on the basis that he was. He was sentenced for the criminality involved in obtaining or assisting others to obtain passports. The fact that the offences might have been linked to the appellant and traced to him is not a matter of mitigation particularly when the appellant accepts that there was a degree of sophistication and planning involved in the offences. 287 In my opinion there is no error shown in the exercise of the Judge's sentencing discretion. The sentences were in my view moderate having regard to the totality of the appellant's criminality and considering that they were imposed after trial and in light of the appellant's lack of remorse. I propose that the application for leave to appeal be granted but the appeal dismissed. ********** 26/03/2007 - Typographical error - Paragraph(s) [198] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.