Citation: Mainwaring v Regina [2009] NSWCCA 207
Court: New South Wales Court of Criminal Appeal
Date: 20 August 2009
Judges: Allsop P; Price J; Harrison J
Background
The appellant had shared a prison cell with a man facing murder charges while both were on remand. During the murder investigation, police removed shoes from the cell for forensic analysis, as a shoe left at the crime scene was central to the prosecution's case. The appellant testified at the murder trial that the shoes were his, not his cellmate's. The cellmate was acquitted.
After the murder trials concluded, an undercover police operative covertly recorded the appellant saying that he had claimed ownership of the shoes without actually knowing whose they were. The appellant was then charged with perjury under s 327 of the Crimes Act 1900 (NSW).
At a judge-alone trial in the District Court, the appellant was acquitted of two counts of perjury with intent to procure an acquittal on a murder charge, but convicted of two alternative counts of perjury. He was sentenced to an overall head sentence of five years and four months, with a non-parole period of four years. He appealed against both the conviction and the sentence.
Legal Issues
- Whether it was open to the trial judge to conclude, on the evidence, that the appellant's testimony at the murder trial was objectively false
- Whether the trial judge erred by failing to direct himself on the possibility that the appellant was mistaken, rather than deliberately lying
- Whether the verdict was unreasonable or inconsistent with the evidence
- Whether the sentencing judge failed to account for relevant mitigating factors, rendering the sentence manifestly excessive
Decision
Conviction appeal. Allsop P (with Price and Harrison JJ agreeing) dismissed the conviction appeal on all three grounds. The covert recording amounted to an admission that the shoes were not the appellant's. Taken as a whole, the recorded conversation conveyed that the appellant had knowingly given false evidence, not that he had made an innocent error.
No expert evidence was required to prove beyond reasonable doubt that the shoes did not belong to the appellant. The admission itself, once accepted as genuine, was sufficient to establish the falsity of the testimony given at the murder trial.
On the misdirection ground, the Court found that once the trial judge accepted the recording as a true admission and rejected the appellant's explanation at his own trial that he had merely been "big-noting" himself to the undercover operative, the possibility of honest mistake simply did not arise. The trial judge's findings were plainly open on the evidence, and a finding of guilt beyond reasonable doubt on the perjury counts was available.
Sentence appeal. Leave to appeal was granted, but the majority (Allsop P and Price J) dismissed the sentence appeal. The majority emphasised that perjury is a grave offence striking at the heart of the administration of justice. The sentencing judge had correctly assessed both the gravity of the particular conduct and the appellant's subjective circumstances, and it was not appropriate to calibrate the sentence by comparing it with sentences imposed in other cases. The sentences fell well within the sentencing judge's discretion and were not manifestly excessive.
Harrison J dissented on sentence, taking the view that the absence of personal motivation and the limited need for specific deterrence warranted a substantially lesser penalty. In Harrison J's view, a combined sentence producing 18 months of full-time custody would have been appropriate and proportionate to the objective criminality involved.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed (by majority)
Key Takeaways
- A covert recording in which an accused person concedes giving testimony without knowing its truth can constitute a sufficient admission of deliberate falsity for a perjury conviction under s 327 of the Crimes Act 1900 (NSW), without any need for supporting expert evidence.
- Where a trial judge finds that an admission is genuine and disbelieves an innocent explanation for it, the possibility of honest mistake does not independently require separate consideration as a live issue.
- Perjury is treated as a serious offence against the administration of justice; the Court of Criminal Appeal confirmed that its gravity justifies significant custodial sentences.
- In dismissing the sentence appeal, the majority reiterated that comparative sentencing, that is, measuring one sentence against another imposed in a different case, is not a relevant consideration when assessing manifest excess.
- Harrison J's dissent illustrates that the weight to be given to absence of personal motivation and limited deterrence value remains a matter on which reasonable judicial minds can differ in the perjury sentencing context.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 327
- Criminal Procedure Act 1986 (NSW), s 132
Cases:
- Fleming v R [1998] HCA 68; 197 CLR 250
- MacKenzie v The Queen [1996] HCA 35; 190 CLR 348
- R v Fish & Swan [2002] NSWCCA 196; 131 A Crim R 172
- R v Langton [2002] NSWCCA 382
- R v Liristis [2004] NSWCCA 287; 146 A Crim R 547
- R v Morgan (1993) 70 A Crim R 368
- R v Treglia [2002] NSWCCA 338