By Paul Gregoire and Ugur Nedim
Back before COVID-19 brought the NSW court system to a grinding halt, it seems that people were conjuring up fake illnesses with the aim of obtaining medical certificates from doctors to excuse them from fronting up to their scheduled court appearances.
At least, that was the crux of the matter when an accused Michael Izod allegedly concocted a sham illness based on the advice of his solicitor Mohammad Zreika, which resulted in the defendant obtaining a certificate from Dr James Yu that led him to be excused from court that day.
On 28 June 2018, Mr Izod was due to appear in Manly Local Court having been charged with two counts of unlawful possession of property, also known as goods in custody, under section 527C of Crimes Act 1900 (NSW).
If this offence relates to a motor vehicle or marine vessel, the maximum penalty that applies is 12 months imprisonment and/or a fine of $1,100. But, if it involves any other type of stolen or unlawfully obtained property, the maximum is 6 months prison time and/or a fine of $550.
On the morning of the day in question, the contents of calls and texts between Izod and Zreika were intercepted via a pre-existing warrant. And while the transcript is still subject to a suppression order, it’s thought to reveal the two men conspiring to get Izod out of having to appear in court.
The charges of attempting to pervert the course of justice that were subsequently laid against the lawyer and his client over this exchange were initially dismissed in Central Local Court.
But, on 9 April this year, the NSW Director of Public Prosecutions (DPP) appealed against the dismissal.
On 29 May last year, both Mr Izod and Mr Zreika appeared in court charged with perverting the course of justice under section 319 of the Crimes Act, which carries a maximum penalty of 14 years behind bars.
The prosecution’s assertion was that the transcript of the defendants’ communications revealed them contriving an excuse to get out of court. Mr Izod then provided Dr Yu with false information about an illness, which was allegedly informed by the advice provided to him by Mr Zreika.
However, the lawyers for the defendants objected to the tendering of the communications as evidence, as it was asserted that the content was confidential and protected by client legal privilege in accordance with the provisions of section 118 of the Evidence Act 1995 (NSW).
As the Australian Law Reform Commission explains, 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”.
Section 125 of the Evidence Act stipulates that the privilege is extinguished and any communications can be tendered as evidence if the court finds reasonable grounds that the client-lawyer communications were used to help further the commission of an offence.
But as stated, the local court dismissed the charges. In doing so, her Honour Magistrate Jennifer Atkinson reasoned that “misconduct had not been established” by the communications in question. And this then left client legal privilege intact and the communications being inadmissible as evidence.
Challenging the lower court
The Office of the DPP challenged the findings in the NSW Supreme Court in February. It did so on the chief ground that the test applied by the magistrate “was erroneous in law”, as it should have considered whether the communications showed reasonable grounds for finding that they aided the offence.
“In my opinion the correct construction of the judgment, taken as a whole, is that the magistrate did misconceive the question submitted to her and applied the wrong test,” said Acting Supreme Court Justice Carolyn Simpson in her full findings released in early April.
Her Honour pointed to subsection 25(2) of the Evidence Act, which provides that if there are reasonable grounds for finding that a communication was made in furtherance of the commission of an offence then the exchange is no longer privileged and it can be used as evidence.
“I am satisfied that the DPP’s first ground has been made good,” Justice Simpson found.
The further grounds
Despite the fact that three remaining grounds of appeal no longer needed to be established, the justice went on to consider their application.
The second ground was that two irrelevant matters had been considered by the magistrate. The first was that Dr Yu had come to his own gastroenteritis diagnosis and the second was that her Honour was wrong in determining that the defendant was “entitled” to have his hearing adjourned, regardless of whether he was sick or not.
Justice Simpson rejected this ground. Her Honour found that the diagnosis may have held some relevance, and while the second consideration was clearly irrelevant, it had little to no bearing on the final decision.
As for the third ground – whether the magistrate failed to consider relevant issues – the Supreme Court justice found this to be made out, as a number matters had been identified, which included evidence that Izod provided false information to Dr Yu, and that Zreika knew his client wasn’t ill.
“The final ground is that the magistrate failed to give adequate reasons for her conclusions. I reject that ground. Erroneous reasoning is not equivalent to inadequacy of reasons,” her Honour made clear.
“Indeed, the DPP’s point is that the reasons expose error. In my opinion the magistrate’s reasons adequately explain the path to her conclusions.”
The orders made
The orders sought by the DPP were that Magistrate Atkinson’s decision be set aside, that the matter remitted to Central Local Court to be heard by another judicial officer, and that the defendants pay costs.
In the result, Justice Simpson determined that the decision of Magistrate Atkinson be set aside, the matter be remitted to the Local Court and that the location of the proceedings would be left up to the Local Court registry.
Her Honour further ordered that both Mr Izod and his lawyer Mr Zreika foot the bill for the cost of the DPP’s court proceedings.