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Court of Criminal Appeal 20 April 1999

Regina v Bayeh [1999] NSWCCA 82 revised - 13

[1999] NSWCCA 82

Public order & justice offences
CRIMINAL LAW & PROCEDURE SENTENCE EVIDENCE

Citation: Regina v Bayeh [1999] NSWCCA 82 revised - 13/08/99
Court: New South Wales Court of Criminal Appeal
Date: 20 April 1999
Judges: Grove J, Kirby J

Background

The appellant had been convicted of attempting to pervert the course of justice, contrary to s 319 of the Crimes Act. The offence arose from a fabricated affidavit he swore in 1993 in support of applications to vacate a trial date and take overseas evidence, in which a statement purportedly signed by a man named Bazzi falsely claimed that Bazzi, not the appellant, had fired a handgun in 1990. Immigration records established that Bazzi was overseas at the time of the original incident, exposing the deception.

After the Crown closed its case at trial, and after a failed application for a directed acquittal, the appellant pleaded guilty before the jury. Sentencing proceedings were then substantially prolonged while the appellant sought to place before the court evidence of cooperation with law enforcement authorities, including the NSW Crime Commission and the Independent Commission Against Corruption (ICAC), which had not been disclosed to the sentencing judge at the time of conviction.

Stewart ADCJ ultimately sentenced the appellant to four years penal servitude, divided into minimum and additional terms of two years each. The appellant sought leave to appeal against the severity of that sentence.

  • Whether the sentencing judge gave undue weight to criticism of character references not actually relied upon by the appellant.
  • Whether the sentencing judge gave insufficient weight to Judicial Commission sentencing statistics.
  • Whether the sentencing judge impermissibly used material that had been tendered on behalf of the appellant for a limited purpose, including material potentially subject to the protections in s 17(2) of the Royal Commissions Act 1923.
  • Whether the sentencing judge gave insufficient weight to the appellant's claimed assistance to law enforcement authorities, including cooperation with ICAC.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal and confirmed the sentence.

On the central evidentiary question, the Court held that the mere fact that material was placed before the sentencing judge for a purpose intended by the appellant did not restrict the judge's ability to use that material for other legitimate purposes. Grove J concluded that, as a general principle, evidence before a tribunal is available for all legitimate purposes unless special rules apply. No breach of s 17(2) of the Royal Commissions Act 1923 was found to be manifest in the circumstances, particularly given that the sentencing judge had been expressly invited to read the material in question.

On the claimed assistance to ICAC, the Court noted that the multiple and lengthy adjournments sought by the appellant, spanning over a year, had been obtained specifically to allow him to present material about his cooperation with ICAC. In the event, nothing was placed before the Court to enable any assessment of whether that information was of value. The Court found no error in the way the sentencing judge assessed the other asserted instances of assistance to authorities.

Grove J found the offence to be serious within its category, reflecting a deliberate and sustained attempt to pervert the course of justice rather than a spontaneous act. The sentence of four years was not considered manifestly excessive. Kirby J agreed with both the proposed order and the reasons given.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Sentence confirmed.

Key Takeaways

  • A sentencing judge is not restricted to using tendered evidence only for the purpose for which the defence tendered it. Where no special rule applies, evidence before the tribunal is available for all legitimate purposes.
  • No breach of s 17(2) of the Royal Commissions Act 1923 was established where the sentencing judge was expressly invited by the defence to read the material in question.
  • Where a defendant seeks multiple adjournments to assemble material in support of a sentencing discount for cooperation with authorities, but ultimately fails to place any such material before the court, no reduction in sentence follows from the claimed cooperation alone.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a premeditated and sustained attempt to pervert the course of justice, involving the fabrication of evidence to avoid trial, sits at the serious end of the offending range.
  • Delay attributable entirely to an appellant's own adjournment applications does not, of itself, entitle that appellant to any procedural or sentencing advantage.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (attempting to pervert the course of justice)
- Crimes Act 1900 (NSW), s 442B (discount for assistance to authorities)
- Royal Commissions Act 1923 (NSW), s 17(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220