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District Court 16 March 2023

Zreika v R

[2023] NSWDC 59

Public order & justice offences

Citation: Zreika v R [2023] NSWDC 59
Court: District Court of New South Wales
Date: 16 March 2023
Judge(s): Scotting DCJ

Background

The appellant, a solicitor admitted to practice in early 2018, was convicted in the Local Court of doing an act to pervert the course of justice under s 319 of the Crimes Act 1900. The prosecution alleged that, in a recorded telephone call on 28 June 2018, he advised his client to attend a doctor, suggest a diagnosis of gastroenteritis, and obtain a medical certificate to support an adjournment of criminal proceedings listed for hearing that day.

The conversation had been lawfully intercepted. At the Local Court, the magistrate admitted the telephone intercept into evidence after finding that the communications fell within an exception to legal professional privilege under s 125 of the Evidence Act 1995, on the basis that there were reasonable grounds to find the communications were made in furtherance of the commission of an offence.

The magistrate then relied on essentially the same findings to convict the appellant. The solicitor appealed to the District Court as of right against both the evidentiary ruling and the conviction.

  • Whether the magistrate misapplied s 125 of the Evidence Act 1995 in admitting the telephone intercept evidence, which would otherwise have attracted legal professional privilege.
  • Whether the magistrate impermissibly applied the balance of probabilities standard (used to admit the evidence) when determining guilt, rather than applying the beyond reasonable doubt standard.
  • Whether the magistrate failed to consider whether the prosecution had excluded all reasonable alternative inferences consistent with the appellant lacking an intention to pervert the course of justice.

Decision

On the first ground, the District Court found it unnecessary to determine the admissibility question definitively, because the appeal succeeded on the remaining grounds. The court proceeded on the assumption that the evidence had been properly admitted and examined whether the conviction itself could stand.

On the second and third grounds, Scotting DCJ found the conviction could not be sustained. The critical question was whether the prosecution had proved beyond reasonable doubt that the appellant intended to cause his client to obtain a fraudulent or false medical certificate. The court identified a range of alternative inferences that were reasonably open on the evidence.

The court accepted that the client had a documented history of obtaining medical certificates for conditions such as depression and anxiety, which provided some legitimate foundation for seeking a certificate. Scotting DCJ also found it reasonably possible that the appellant's reference to gastroenteritis was a clumsy attempt to illustrate to his client why the certificate needed to specify a diagnosis rather than merely assert unfitness in bare terms. Critically, the appellant's repeated insistence during the call that the client tell him what the doctor actually diagnosed supported an inference that the appellant intended the basis of the certificate to be a matter between the client and the doctor, not something the appellant was scripting in advance.

The court also took into account the appellant's good character as a factor making the requisite criminal intention less likely. Because the prosecution had not excluded these reasonable alternative inferences to the requisite standard, the conviction could not stand.

Orders Made

  • Appeal allowed.
  • Conviction set aside.
  • Penalty imposed by the magistrate set aside.

Key Takeaways

  • A conviction for perverting the course of justice requires proof beyond reasonable doubt of the relevant intention; where reasonable alternative inferences remain open on the evidence, a conviction cannot be maintained.
  • Under s 125 of the Evidence Act 1995, legal professional privilege does not protect communications made in furtherance of an offence, but a finding made on the balance of probabilities for the purpose of admitting evidence cannot simply be carried over to satisfy the criminal standard of proof at the guilt stage.
  • The District Court found that the same factual findings that satisfied the lower threshold for admissibility did not automatically discharge the prosecution's burden of proof to the higher criminal standard required for conviction.
  • Proof of intention in cases involving equivocal communications must account for all reasonable explanations consistent with innocent conduct; here, the court identified several such explanations, including the client's history of legitimately obtaining medical certificates and an ambiguous reading of the advice given.
  • Good character evidence remained relevant, with the court treating the absence of any prior adverse conduct as a factor bearing on the likelihood of criminal intent.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Appeal and Review) Act 2001 (NSW)
- Evidence Act 1995 (NSW), s 125

Cases:
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72
- Director of Public Prosecutions (NSW) v Zreika [2020] NSWSC 381
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298