Citation: Finnie v Regina and Regina v Finnie [2007] NSWCCA 38
Court: NSW Court of Criminal Appeal
Date: 22 February 2007
Judges: Sully J (primary judgment), Simpson J, Latham J (both agreeing)
Background
The appellant was in custody awaiting sentence on fraud matters in late 2000. He applied for bail, telling the sentencing judge he suffered from prostate cancer and needed specialist treatment. The judge indicated bail would likely be granted if evidence of the cancer diagnosis could be produced. Shortly after, a medical report purportedly authored by a named doctor was faxed to the Director of Public Prosecutions by the appellant's legal representatives. Police investigations subsequently revealed the report to be false.
The appellant did not have prostate cancer and had never been treated for it at the hospital named in the report. At trial in the District Court, a jury convicted him on one count of perverting the course of justice (Count 1) under section 319 of the Crimes Act 1900 (NSW), but acquitted him on a second perverting the course of justice count (Count 2) and a perjury count (Count 3). He was sentenced to 18 months' imprisonment with a nine-month non-parole period.
The appellant appealed against conviction and sought leave to appeal against sentence. Separately, the Crown appealed against the sentence as manifestly inadequate.
Legal Issues
- Whether Count 1 of the indictment was bad in law for failing to disclose a known offence
- Whether the trial judge's directions on "tendency to pervert" the course of justice were ambiguous or misleading
- Whether evidence from the appellant's own solicitor was wrongly admitted to establish elements of the prosecution case
- Whether the conviction on Count 1 was unreasonable or against the weight of evidence
- Whether the conviction on Count 1 was inconsistent with the acquittals on Counts 2 and 3 (the principal ground pressed on appeal)
- Whether the trial judge erred in excluding evidence from committal proceedings relating to the appellant's belief about his medical condition
- Whether the sentence of 18 months was manifestly excessive, or alternatively manifestly inadequate
Decision
The Court dismissed the appeal against conviction on all grounds. The ground pressed most strongly at the hearing was the alleged inconsistency between the guilty verdict on Count 1 and the acquittals on Counts 2 and 3. The Court rejected this argument, finding that the jury's verdicts were reconcilable on the evidence and did not reveal any logical or legal contradiction that would warrant setting aside the conviction.
On the question of admitting evidence from the appellant's solicitor, the Court found no error in the trial judge's ruling permitting that evidence. The remaining conviction grounds, including the adequacy of the jury directions and the exclusion of committal evidence, were also dismissed.
Leave to appeal against sentence was granted but the appeal was dismissed. The Court found no error in the sentencing judge's approach that would justify interference. The Crown's cross-appeal, contending the sentence was manifestly inadequate, was also dismissed. Sully J noted that even had he been inclined to take a different view of the sentence, he would still have dismissed the Crown's appeal in the exercise of the Court's discretion, given what he characterised as extreme and unjustified delay in bringing that appeal.
Orders Made
- Extension of time granted to permit prosecution of the appeal against conviction and the application for leave to appeal against sentence
- Appeal against conviction dismissed
- Leave granted to appeal against sentence
- Appeal against sentence dismissed
- Crown appeal against sentence dismissed
- Recommendation appended to the orders addressed to the Commissioner of Corrective Services that, to the fullest extent consistent with prison administration and discipline, the appellant upon being taken into custody: (1) be classified with maximum expedition to separate him from hardened criminals; (2) be afforded privacy appropriate to his medical condition; and (3) be constantly monitored and appropriately treated for that condition
Key Takeaways
- A conviction for perverting the course of justice under section 319 of the Crimes Act 1900 (NSW) was upheld where the evidence established that a false medical report was submitted to the prosecution to influence a bail application before a sentencing judge.
- Inconsistent jury verdicts will not automatically invalidate a conviction; the Court of Criminal Appeal will examine whether the verdicts are reasonably reconcilable on the evidence before concluding that any inconsistency is legally fatal.
- Admission of evidence from a defendant's own solicitor to prove elements of the prosecution case did not constitute error in the circumstances considered here, though the judgment does not state a broad rule on solicitor-client privilege beyond the facts of this case.
- In dismissing the Crown's sentence appeal, the Court indicated that significant and unjustified delay in bringing such an appeal may independently justify the exercise of discretion to dismiss it, even where the Court might otherwise have been open to the Crown's argument.
- The Court of Criminal Appeal has power to append recommendations to formal orders addressing the welfare and appropriate classification of an appellant in custody, as occurred here regarding the appellant's medical condition.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- The Queen v Chai (2002) 128 A Crim R 101
- R v Gulliford (2004) 148 A Crim R 558
- Karageorge (1998) 103 A Crim R 157
- MFA v The Queen (2002) 213 CLR 606
- MacKenzie v The Queen (1996) 190 CLR 348
- Reg v Hallocoglu (1992) 26 NSWLR 67