Citation: Regina v Christine Gay Fish and John Gordon Swan [2002] NSWCCA 196
Court: NSW Court of Criminal Appeal
Date: 14 June 2002
Judges: Ipp AJA, Dunford J, Bell J
Background
In the early hours of 23 July 1990, a group of young men celebrating a birthday encountered a group of off-duty police officers near Kings Cross. A brawl broke out, and the young men were later detained. Evidence emerged that some officers had assaulted those detained and subsequently gave false testimony in court proceedings arising from those events.
Two of the officers involved, Christine Gay Fish and John Gordon Swan, were charged with a range of offences including affray, assault, perverting the course of justice, and perjury. The charges related to conduct during the brawl itself and to false statements made under oath in later Local Court and District Court proceedings concerning one of the young men, Cory Brown.
At trial in the Sydney District Court before Stewart DCJ, Fish was convicted of one count of perjury and Swan was convicted of two counts of perjury. Both appellants appealed to the Court of Criminal Appeal against their convictions and sought leave to appeal against the severity of their sentences.
Legal Issues
- Whether the convictions for perjury were sound and should be upheld on appeal
- Whether the sentences imposed in the District Court were manifestly excessive or otherwise infected by error
- Whether, in Swan's case, the principle of totality in sentencing required greater concurrence between the two consecutive sentences
Decision
The Court of Criminal Appeal unanimously dismissed both appeals against conviction. The court found no basis to disturb the jury's verdicts on the perjury counts. Both appellants had given false evidence under oath in proceedings concerning Cory Brown, knowing their statements to be false and on matters material to those proceedings.
On sentence, the court granted both appellants leave to appeal but allowed the appeals only to a limited extent. The court confirmed the head sentences of twenty months imprisonment in each instance, finding that the length of the sentences remained appropriate for perjury offences of this kind committed by serving police officers.
For Fish, the court reduced the non-parole period from twelve months to six months, directing her release on parole at that point. The overall head sentence of twenty months was retained.
For Swan, who faced two consecutive sentences, the court accepted that the totality principle required some adjustment. The second sentence was varied so that it commenced two months after the first, rather than running fully consecutively from the expiry of the first non-parole period. The individual non-parole periods of twelve months on each count were otherwise confirmed.
Orders Made
In the appeal of Christine Gay Fish:
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal allowed
- Head sentence of twenty months imprisonment confirmed (17 December 2001 to 16 August 2003)
- Non-parole period reduced to six months, expiring 16 June 2002; directed release on parole at expiry
In the appeal of John Gordon Swan:
- Appeal against conviction dismissed
- Leave to appeal against sentence granted; appeal allowed
- First conviction: twenty months imprisonment (17 December 2001 to 16 August 2003) with non-parole period of twelve months expiring 16 December 2002, confirmed
- Second conviction: twenty months imprisonment varied to commence 17 February 2002 and expire 16 October 2003, with non-parole period of twelve months expiring 16 February 2003; directed release on parole at expiry
Key Takeaways
- Perjury under s 327(1) of the Crimes Act 1900 carries a maximum of ten years imprisonment; sentences of twenty months were upheld as appropriate where serving police officers knowingly gave false evidence in criminal proceedings on material matters.
- In dismissing the conviction appeals, the Court of Criminal Appeal found no error in the jury's verdicts and confirmed that the evidence at trial was sufficient to support the perjury findings.
- The totality principle in sentencing requires a court to consider whether the cumulative effect of consecutive sentences is disproportionate to the overall criminality, even where each individual sentence is appropriate in isolation.
- Where two perjury offences arise from the same underlying set of circumstances, a court may provide for a substantial measure of concurrence between consecutive sentences to give effect to totality, without necessarily reducing the individual sentence lengths.
- Affidavit evidence of circumstances arising after sentencing, such as the absence of medical attention in custody, may be placed before the Court of Criminal Appeal on a sentence appeal, but does not automatically warrant a reduction in the sentence imposed.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 93C (affray) and 327(1) (perjury)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Independent Commission Against Corruption Act 1988 (NSW)
Cases:
- M v The Queen (1994) 181 CLR 487
- R v Aristodemou (unreported, NSWCCA, 30 June 1994)
- R v Bird [1891] Criminal Law Cases 387
- R v L (unreported, NSWCCA, 17 June 1996)
- R v Linehan [1921] VLR 582
- R v Markuleski [2001] NSWCCA 290
- R v Yilmaz (unreported, NSWCCA, 4 March 1991)
- Regina v Bulliman (unreported, NSWCCA, 25 February 1993)
- Regina v Chapman (unreported, NSWCCA, 21 May 1998)
- Regina v Salesi Fifita (unreported, NSWCCA, 26 November 1992)
- Regina v Traino (1987) 27 A Crim R 271