By Paul Gregoire and Ugur Nedim
Sydney criminal defence lawyer Mohammed Zreika was found guilty of the offence of perverting the course of justice, under section 319 of the Crimes Act 1900 (NSW), by Magistrate Jennifer Atkinson at Sutherland Local Court on 19 November 2021.
The offence carries a maximum penalty of 14 years behind bars.
The magistrate found that in a recorded phone conversation that Zreika told his client Michael Izod to see Dr James Yu to obtain a medical certificate stating that he had gastroenteritis in 2018 to avoid fronting up to Manly Local Court to face a charge relating to the unlawful possession of property.
The phone call was intercepted under a preexisting warrant. The issue regarding the use of this evidence, as put by Zreika, is that producing this evidence breached the principle of client legal privilege.
As the Australian Law Reform Commission sets out, client legal privilege involves the protection of “confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings”.
Client legal privilege, however, can be extinguished if the court finds reasonable grounds that the client-lawyer communications were used to help further the commission of an offence, which is in accordance with section 125 of the Evidence Act 1995 (NSW).
Magistrate Atkinson found that section 125 is triggered in Zreika’s case based on reasonable grounds.
And as Sydney Criminal Lawyers outlined in an earlier piece Atkinson’s finding was similar to the determination that NSW Supreme Court Acting Justice Carolyn Simpson had made regarding the same matter on 9 April 2020.
Appealed a second time
Zreika then appealed his case to the NSW District Court on 14 March this year. The solicitor did so based on three grounds.
These included that the magistrate misapplied section 125, that her Honour had based her findings on the civil balance of probabilities burden of proof, rather than the criminal beyond reasonable doubt and that the prosecution had excluded reasonable inferences that were open.
The first time this case was tried in the Local Court in May 2019, Magistrate Atkinson found that misconduct hadn’t been established and client legal privilege was intact. The Director of Public Prosecutions then successfully appealed the matter in 2020, and it was remitted to the lower court.
Evidence on appeal
The court considered the conversation transcript, which was preceded by a text from Izod, outlining that he’d “crashed out late” the night before without having prepared everything and asked his lawyer to call regarding the possibility of getting a doctor’s certificate and an adjournment.
The call then occurred with the solicitor questioning his client as to what illness he was going to tell the doctor he had. Izod stated probably anxiety or depression, and Zreika stressed the need for a diagnosis to appear on the certificate, like gastroenteritis.
The lawyer went on to explain what would happen regarding lodging the certificate and seeking an adjournment.
The appeals court then considered the transcript regarding that adjournment. During the exchange the magistrate and the prosecution, at different times, suggested proceeding. However, Zreika asserted that an adjournment was warranted as the doctor had given a specific diagnosis.
The court also heard the transcript of another call between the solicitor and client, which involved Zreika telling Izod that despite wanting to proceed, the magistrate, who was a good one to get, had only adjourned the matter because a diagnosis was written on the certificate, as he’d advised.
The relevant laws
NSW District Court Judge Andrew Scotting outlined that section 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is a rehearing of certified transcripts of evidence that, based on the authorities, requires the demonstration of “factual, legal or discretionary error” to succeed.
In terms of error, it has “no precise meaning”, but refers to “broad satisfaction” that the prior judgement was wrong. And how this is achieved depends on “a range of factors”, although “a miscarriage of justice” may warrant intervention in the absence of error.
“The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt,” his Honour added.
Further, the judge pointed to section 118(a) of the Evidence Act, which enshrines client legal privilege in law, while section 142 provides that a question of whether evidence should be admitted is based on whether the court is satisfied it should be based on the balance of probabilities.
Pointing to the last appeal of the matter, his Honour outlined that Justice Simpson found reasonable grounds must be established. And she added that the magistrate had considered irrelevant matters in determining acquittal, while relevant matters were neglected.
The NSW District Court judge further stated that Magistrate Atkinson ruled that Zreika “did provide Michael Izod with a medical condition to provide to a doctor, intending thereby to pervert the course of justice”.
Her Honour further asserted that she needed “to be satisfied of the elements of the offence beyond reasonable doubt and that the onus was on the prosecution to prove them to the requisite standard”.
However, the District Court judge found that the magistrate, in her final findings, had made two errors. She said that Zreika considered his gastroenteritis suggestion “might” have been used, and she did not consider whether there were any other reasonable hypotheses regarding what occurred.
Ground made out
Judge Scotting then considered ground one: that the magistrate misapplied section 125 and therefore, the evidence should not have been admitted.
His Honour said that rather than formulate the reasons why what was said in the conversation was in breach of the law, based on the balance of probabilities, the magistrate simply suggested that the Supreme Court had found the power was enlivened and therefore, privilege was extinguished.
And following this, the prosecution neither demonstrated, based on the balance of probabilities, that there were reasonable grounds for establishing that the suggestion was made in the aid of perverting the course of justice.
Indeed, Justice Simpson had stipulated an evaluation of facts was necessary.
Three further errors in judgement involved referring to a conspiracy and joint criminal enterprise not established in the first case, not stating different reasons as to why both Zreika and Izod were guilty of the offence and no reasons were given regarding how the conversation perverted justice.
But Judge Scotting was satisfied on the balance of probabilities that the gastroenteritis suggestion was made to pervert the course of justice, as, on receiving the text message, Izod said he wasn’t ready for the hearing, not that he was suffering any sickness.
Therefore, an inference can be made as the lawyer suggested that his client tell the doctor that he had gastroenteritis, which his client went and did. And when he told the court of the illness, Zreika was aware that his direction had resulted in persuading the magistrate to adjourn the case.
Grounds not made out
In terms of the other two grounds, that beyond reasonable doubt had not been established and that the prosecution had excluded other reasonable inferences, it was a different matter.
Instead of establishing how the offence was proven beyond reasonable doubt, the magistrate adopted the reasoning from section 125. Yet, in that instance, reasonable grounds had only been established for accepting the evidence, and it had not been established beyond reasonable doubt.
And the magistrate did not consider any different inferences in terms of what the lawyer’s words had been attempting to achieve that would have suggested innocence, which would have required this inference to be excluded beyond reasonable doubt.
So, taking into account the evidence that had been tendered, the judge did not find the offence to have been established beyond reasonable doubt, as the text message and a reference to feeling “shithouse” could have been taken as the client had stated he was ill.
From the outset of the call, the lawyer had provided broad advice about obtaining a certificate as soon as possible, and to make sure there was a diagnosis, as, due to privacy laws, doctors aren’t necessarily stating what illness a patient has on their medical certificates of late.
The client suggested anxiety and depression as an illness, which meant he may have been suffering such illnesses.
“It is reasonably possible that the suggestion of gastroenteritis and diarrhoea and practicality of attending court with diarrhoea was a ham-fisted attempt by the appellant to give an example by which the client could understand his legal advice,” Judge Scotting found.
This was further underscored by the solicitor ensuring that a diagnosis was present on the certificate. So, it is reasonable to infer that Zreika wasn’t suggesting an illness but ensuring that whatever the doctor diagnosed be present on the certificate.
And on 16 March this year, Judge Scotting acquitted the lawyer of the offence of perverting the course of justice.