Akpata v Police No. Scciv-03-708

AKPATA v POLICE
[2003] SASC 305
Magistrates Appeal: Criminal

PERRY J. (ex tempore) Mr Akpata, whom for convenience I will call the appellant, seeks an extension of time within which to appeal to this Court. He is a Nigerian national held in immigration detention. On 30 July 1996 in the Magistrates Court sitting at Adelaide, following his plea of guilty to five counts of false pretences, he was sentenced to imprisonment for 12 months with a non-parole period of 5 months. The essence of the offending was that the appellant paid cheques draw on a New Zealand bank into his bank account at the Klemzig branch of the ANZ Bank, and withdrew cash against the cheques at a time when he knew that the New Zealand account did not have funds to meet the cheques.
At the hearing in the Magistrates Court the appellant was represented by counsel. He asked the court to take into account five other false pretences which were listed and particularised in a document signed by him which, for convenience, has been referred to as “considerations”.
The appellant duly served the sentence commencing on 30 July 1996. He was released on parole before the end of the year.
Some seven years later, he now comes to this Court seeking an extension of time to lodge an appeal both against his conviction in the Magistrates Court and the sentence which was imposed.
In his amended notice of appeal, he raises the following grounds which I summarise:
1.He was not advised that there was a time limit for appealing.
2.He has been the subject of immigration detention for varying periods since 1995.
3.It is in the interests of the administration of justice that an extension be granted.
4.There was a miscarriage of justice in that he did not understand the charges laid against him and was wrongly advised by his previous solicitor that he should plead guilty.
5.He was wrongly provided with legal advice that there was no basis upon which he could appeal.
6.He is not guilty of any of the offences charged or taken into consideration.
7.In any event, the penalty which was imposed was manifestly excessive.
In an affidavit sworn by the appellant on 17 July 2003 and lodged in support of his application for an extension of time to appeal, the appellant states that following his arrest on the offences in question, he instructed Mr Patel, a barrister and solicitor, to act on his behalf. Put shortly, he states that he firmly believed that he was innocent of any wrongdoing, but that he agreed to plead guilty after assurances from Mr Patel that the charges were minor and that he would not receive a conviction or be imprisoned because he was a minister of religion.
He further asserts that he rang Mr Patel when he was taken into custody after the sentence had been pronounced, but was advised against appealing. He states further that in 1997 he made inquiries at the Adelaide Magistrates Court about an appeal, and was told that it would have to be conducted through his lawyer.
In his affidavit he outlines approaches to various other solicitors, which for one reason or another, did not result in any assistance to institute or prosecute an appeal. He says that he first became aware of a time limit for appealing when he was informed by the appeals clerk of this Court in May 2003 that there was a time limit, and that he was out of time.
Naturally enough, many of the papers which were in the hands of the prosecution at the time of the hearing in the Magistrates Court are no longer in existence. However, I have had the benefit of an affidavit of Mr Nigel Laity, who was the investigating officer responsible for the investigation of the offences prior to the launching of the prosecution. Attached to his affidavit is a police apprehension report which gives details of the circumstances of the various offences.
That report concludes with the following observation:
“The offender has been co-operative with police and when interviewed, made full and frank admissions to the offences charged. He admitted being the person who wrote, signed and passed all cheques and to being the person who made all transactions on the credit card accounts. He said that no other person has had possession of any cheques or his credit cards. He said that he had transferred some of the money gained back to New Zealand in the hope that some of the cheques would be met and in the hope of delaying any action by the bank. He said that he was aware that he had written cheques far in excess of his ability to meet and agreed that the only money going into the cheque account in New Zealand was, in fact, money obtained from the ANZ by the drawing of the cheques.
He said that the money he had gained from the bank had been given to people to take back to Nigeria for his family. He was not sure of the actual amount but agreed it was many thousands of dollars in total.
He is a Nigerian national living in Australia on a student visa. He admitted that the financial details given in the Mastercard application were grossly false and said that he does not own any property in New Zealand or Australia. The false details were given to the bank to ensure he could obtain another credit card to assist in his scheme.
The offender has offered to pay back the ANZ Bank all moneys owed and has already contacted the victim to make arrangements to do so.”
I have also received an affidavit from Ms Rebecca Fulton, a police officer, who states that she prosecuted the matter in the Magistrates Court before Mr Eardley SM on 27 June 1996. She deposes to the fact that the appellant appeared and was represented by Mr Patel, and that after the charges were read, the appellant pleaded guilty to them. She confirms that considerations were then asked to be taken into account and the letter containing the details of them was handed up.
She states that although, naturally enough, after this period of time she cannot recall accurately what she might have put to the court, she states her normal practice was to read out the facts as contained in the apprehension report, including the defendant’s version of the facts as given to the investigating police officers. She deposes to the fact that, having regard to her normal practice, she would have read out the apprehension report, including that part which I have just quoted above.
Although she did not recall the nature of any submissions which were put by Mr Patel, I have had the benefit of an affidavit from Mr Patel in which he sets out his recollection of his handling of the matter. He no longer has his file, which has been destroyed, but he has refreshed his memory from some of the documents which were in the police brief.
He has also had reference to a previous affidavit sworn by him in October 1998 provided to Duncan Basheer Hannon solicitors. The context in which he furnished that affidavit has not been made clear to me.
However, in his affidavit filed in this Court Mr Patel confirms that when taking instructions he explained the nature of the charges to Mr Akpata and that the latter appeared to understand them. He denies, as is asserted by Mr Akpata, that he said that the charges were “minor”. He denies also that the appellant told him he believed he was innocent of any wrongdoing or that he did not understand the nature of the charges.
He states, however, that the appellant told him that he had become addicted to gambling, so much so that when he got out of bed every morning, he “trembled” with an urge to gamble.
Mr Patel further deposes to the fact that the appellant instructed him that he had become a compulsive gambler and that this explained the reason why he had committed the offences, which was in order to satisfy his urge to gamble.
Mr Patel’s version of the instructions given by the appellant was that the appellant admitted to writing a series of cheques drawn on his account with a bank in New Zealand and deposited them in his account with the ANZ Bank here. He was allowed to withdraw cash against the cheques deposited in the ANZ Bank against his assurance that the New Zealand account had funds. He admitted to Mr Patel that in fact there were no funds in the New Zealand bank and he had no expectation that there would be funds from which the cheques could be met.
Mr Patel denies that he told Mr Akpata that if he was not granted legal aid, he should plead guilty. Mr Patel now has no recollection of any application for legal aid and indicates in his affidavit that he decided not to charge the appellant as he felt that he was in need of help as a refugee who had been persecuted in Nigeria.
Far from accepting that he advised the appellant that the charges were minor, Mr Patel deposes to the fact that he advised the appellant that they were serious and that, having regard to the magnitude of the defrauding, the court would be likely to impose a custodial sentence. However, he advised the appellant that any sentence might be suspended and that he might be released on a good behaviour bond having regard to his “clean record”, and that his prospects of doing so would be enhanced if he promptly compensated the bank.
It appears that at that stage the appellant was in the process of making arrangements for the publication of a book which he had written entitled Why Pray?. On Mr Patel’s account of the matter, the appellant instructed him to offer to assign to the ANZ Bank the royalties from the book if they would accept that as full restitution.
Mr Patel duly wrote to the bank making an offer along those lines and the bank responded in a letter rejecting the offer. Mr Patel’s letter and the reply from the bank have been tendered in evidence before me.
Both the appellant and Mr Patel were called to give evidence before me. They elaborated upon their respective affidavits, but essentially adhered to the substance of what they had to say in the affidavits.
I have had an opportunity of forming an impression as to the credit of each of them during the course of giving their evidence and during the course of cross-examination.
At the end of the day, I form an adverse view of the credit of the appellant. I am satisfied that he was given the advice in the terms stated by Mr Patel. I am satisfied that he was not put under any pressure at all to plead guilty to the charges. I am satisfied that he freely admitted his guilt both to the investigating police officers and to Mr Patel.
His suggestion to the contrary made now, many years after the event, simply does not square with the letter written by Mr Patel offering restitution by way of an assignment of the proceeds of the sale of the appellant’s books.
The appellant denied that he gave instructions that could have led to Mr Patel writing that letter, but I do not believe him. It would be incredible if the letter was written without instructions.
Mr Amey has argued the application for leave to appeal, and in the course of doing so has put every possible argument in favour of the grant of the application.
He suggested that Mr Patel’s evidence was in some respects “curious” and that his recollection was “patchy” and did not engender confidence in the accuracy of his memory of what transpired.
I am unable to accept his criticism of the manner in which Mr Patel gave his evidence or his assessment of that evidence. It is not surprising that Mr Patel remembers some things more vividly than other aspects of the matter. I was favourably struck by the evidence which he gave which had the ring of truth about it. I do not believe that if the appellant had protested his innocence to Mr Patel, Mr Patel would have done other than proceed to investigate the possibility of defending the matter and assist the appellant with that or perhaps referred him to someone else.
Mr Amey has quite properly taken me to a number of authorities in which the question of an extension of time, in some cases long after the event, within which to lodge an appeal against conviction following a plea of guilty has been addressed by the court.
I take into account particularly the judgment of Cox J in Stengle v Wells[1] and the judgment of Gray J in Police v Warren[2].
[1] (Unreported) 30 April 1985, judgment No S4958.
[2] (Unreported) 9 August 2000, judgment No [2000] SASC 285.
I accept that if I am satisfied on the material before me that there is a real apprehension of a miscarriage of justice if the extension is not granted, I should extend the time within which the appeal may be brought and refer the matter back to the court below to be dealt with according to law. That is the overriding principle to which I have regard in approaching the matter.
In considering the application of that principle, I have to have regard to the findings of fact which I make on the evidence before me which includes the affidavits, the oral evidence and the exhibits which were tendered.
Without elaborating further on the evidence, I find as a fact that Mr Patel’s advice to the appellant was substantially in accordance with the evidence given by him, which I prefer where it conflicts with that given by the appellant.
Other matters which lead me to the view that the appellant’s account of the matter should be rejected is the fact that he went to gaol and served the term of imprisonment which was imposed, at least the non-parole period, without making any vigorous attempt to appeal at that stage. I find it unbelievable that he would not have taken very strong and active steps to appeal the decision if he had protested his innocence from the outset but then, contrary to what he says was the advice which he was given, he found himself in gaol. He made no effectual effort to do anything about appealing until many years later.
I must take into account also in consideration of his credit that, as has been conceded by Mr Amey, the fact of the conviction and his sentence of imprisonment stand in the path of his current problems with the immigration department. More particularly, they may result in his deportation from this country unless they are overturned.
I take into account also his admissions to the police. While I acknowledge the point taken by Mr Amey that, as a refugee from Nigeria who suffered at the hands of authority in that country, his dealings with the police in this country should be approached with a good deal of circumspection. But he is an articulate person who claims to be a minister of religion and who has written at least one book. I am not persuaded that there is anything in that point.
In all the circumstances, in my view, I cannot be satisfied that there is a real apprehension that there has been a miscarriage of justice in this case in the manner suggested by the appellant in pursuing his application for an extension of time to appeal.
The application is dismissed.
[FOLLOWING AN APPLICATION FOR LEAVE TO APPEAL TO THE FULL COURT]
PERRY J: Mr Amey applies for leave to appeal to the Full Court against the decision which I have just pronounced. It does not seem to me that the case involves any difficult question of law or other matter which would justify the attention of the Full Court.
The application for leave to appeal is in turn dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (Unreported) 30 April 1985, judgment No S4958.
2. (Unreported) 9 August 2000, judgment No [2000] SASC 285.

[2003] SASC 305

29 August 2003