and GIOVANNI Polimeni v The QUEEN
[2014] VSCA 72
•16 April 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0089
| GIOVANNI POLIMENI |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 7 March 2014 | |
| DATE OF JUDGMENT | 16 April 2014 | |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 72 | First revision 16 April 2014, [15] |
| JUDGMENT APPEALED FROM | DPP v Polimeni (Unreported, County Court of Victoria, Judge Montgomery, 15 April 2013) | |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug – Application for extension of time to add proposed new grounds – Proposed new grounds alleged prosecution made inconsistent and unfair use of intercepted communications between co-conspirators - No point of principle - Application for extension of time refused - Leave to appeal refused.
CRIMINAL LAW – Application for leave to appeal against sentence – Applicant sentenced to 18 years' imprisonment with a non-parole period of 12 years – Leave to appeal refused.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Mr B Walmsley SC | Acquaro & Co |
| For the Crown | Mr D J Lane | Director of Public Prosecutions (Commonwealth) |
WEINBERG JA:
I agree, for the reasons given by Coghlan JA, that leave to appeal should be refused.
COGHLAN JA:
After a trial lasting thirteen days in the County Court at Melbourne, the applicant was convicted of:
Conspiracy to commit an offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely Cocaine, contrary to subsection 11.5(1) and subsection 307.5(1) of the Criminal Code (Cth).
On 15 April 2013 he was sentenced to a term of 18 years’ imprisonment, with a non-parole period of 12 years.
By notice of appeal dated 20 June 2013, the applicant sought leave to appeal against conviction on the following grounds:
1.The learned trial judge erred in law in refusing the application to temporarily stay the commencement of the trial by adjourning it to a date to be fixed, and in failing to further order that the trial not commence until counsel for the accused had the assistance of his instructing solicitor for the duration of the trial, and by so doing, the learned trial judge failed to ensure that the applicant received a fair trial.
2The applicant apprehends that the learned trial judge was biased against him in that he had determined and announced, prior to the commencement of the trial, that the strength of the prosecution case should have persuaded him to plead guilty.
On the same day, the applicant also sought leave to appeal against sentence on the following grounds:
1.The judge erred in accepting that the level of the applicant’s involvement in the offending was as submitted by the Crown.
2.The judge erred in failing to apply or apply sufficiently the principle of parity.
3.The judge’s sentencing discretion miscarried by reason of bias due to the applicant’s failure to plead guilty.
4.The judge erred in failing to take delay sufficiently into account.
5.The sentence is manifestly excessive.
On 16 October 2013, Nettle JA refused leave to appeal. The applicant elected to have the application heard by a Full Bench.
On 4 March 2014, application was made to add the following grounds of appeal to the application for leave to appeal against conviction:
3. The trial was an abuse of the process of the Court, in that:
3.1the prosecution relied upon a significant number of communications between persons, other than the applicant, to prove the existence of the alleged conspiracy, and thereafter, the applicant’s participation in it; and
3.2the prosecution had relied upon the same communications to prove the existence of other conspiracies, and other criminal activity, unconnected to the applicant, in the separate trial processes involving charges against Phillip Batticciotto, Saverio Zirilli, Pasquale Barbaro and Rob Karam, in particular, which were by their nature, incapable of such multiple use, and
3.3the prosecution was aware that the previous use by it to prove other criminal conduct could not be known to the applicant, as arising in other criminal trial processes, to which the applicant was not a party.
4.The use of such evidence by the prosecution was unfair, and in the result, the applicant did not receive a fair trial.
The parties were advised that the Court would consider whether or not to allow the grounds to be added by the applicant, and that in the interim, the applicant could file the papers in support of the grounds which were, of course, well out of time.
The thrust of the argument supporting the new grounds was that it could be seen that on three different occasions the prosecutor (who was the same prosecutor in all of the trials concerning the individuals named in ground 3.2) had relied on material (namely exchanges of SMS messages) in the applicant’s trial, and had relied on the same material in the trial of another accused who had been charged with an entirely different conspiracy.
It was submitted that the prosecutor had attributed to the material a meaning which was different in the respective cases. It was submitted that he had not been entitled to do so. It followed that the material relied upon in the case of the applicant was misleading, and should not have been used for the purposes for which the prosecutor had advanced it.
It was common ground that the relevant co-conspirators had all been involved in a number of different conspiracies. However, the applicant was alleged to have been involved in one conspiracy only.
The principal contention was that the very small number of SMS exchanges that the Crown had relied upon could be shown to have a different meaning if other, surrounding, messages in the same exchange series (not led at the applicant’s trial) were added and taken into account.
It was submitted that this contention could be made good by reference to the way in which the specific exchange material had been used in other trials. However, no proper explanation as to how the material had been used in the other trials was developed, save that the exchanges were all said to be acts in furtherance of the conspiracy to which the applicant was not alleged to be a party.
The respondent submitted that the exchange material was both relevant and admissible in each case for the purposes relied upon by the Crown in each one of those cases. That explained why, in the trials involving the other co-conspirators, but not the applicant, fuller and more comprehensive portions of the SMS exchanges passing between them had been tendered.
No objection was taken to the use of the exchange material in the applicant’s trial. It was accepted by senior counsel, who appeared on his behalf in support of this application, that his legal representatives at trial had access to each and every one of the relevant SMS messages. It was further accepted that the legal representatives could have sought to add to the exchange material that was tendered any additional messages that they considered necessary to provide context, or avoid misconception as to the meaning to be attributed to the messages that were tendered.
Perhaps more significantly, the respondent noted that the material had been used in the applicant’s trial primarily to demonstrate that which was not in issue anyway, namely that Pasquale Barbaro, Rob Karam and Saverio Zirilli were closely associated with one another, and indeed, had engaged in the very conspiracy that the Crown alleged the applicant too had joined. The applicant’s defence, put simply, was that whatever Barbaro, Karam and Zirilli may have done, or conspired to do, the applicant was not a party to it.
The respondent submitted that the particular exchanges now said to be pivotal to the proposed new grounds were in truth only a very minor part of the case against the applicant. In that regard, it was noted that there were a very large number of messages of the same or similar nature demonstrating the involvement of the co-conspirators in at least one and probably several separate conspiracies.
Even if the applicant’s submission that the impugned messages were not admissible for the purposes relied upon in his trial were to be accepted, their admission into evidence did not, in my opinion, have any influence on the outcome of the trial. Self-evidently, if that be right, there is no conceivable way in which the admission of this material could have given rise to a miscarriage of justice. In the end, therefore, it is unnecessary to decide the question of admissibility.
During the course of the oral hearing, the Court repeatedly asked senior counsel for the applicant to explain how the Crown’s reliance upon the exchange material could conceivably have occasioned prejudice to his client. It is reasonable to say that senior counsel accepted that neither of the two new proposed grounds could succeed unless it could be shown that the prosecutor at the trial had sought to rely upon material which was not admissible for the purposes relied upon, and that he had done so knowingly and deliberately. Senior counsel was reluctant to accept that the logic of his position was that there had been an abuse of process because the prosecutor had behaved improperly and had sought to present a misleading and distorted picture to the jury. In fact that was precisely what his argument amounted to, and his persistence in adhering to it signified a willingness to wound but not strike.
The argument did not engage with the simple proposition that the impugned SMS messages were relevant and admissible as evidence which demonstrated a relationship between Barbaro, Karam, Zirilli, Scarponi and Ropa which was an important part of the background to the case against the applicant. The fact that some of that material, when taken together with other SMS messages, might have demonstrated that the particular association was for different criminal purposes is not to the point. The additional messages, which may have cast a different light upon the exchanges that the Crown relied upon, may well have been omitted because to include them would have been highly prejudicial so far as the applicant was concerned. One could fairly ask how the applicant would have been better off if the jury had known that the individuals with whom he was closely associating throughout the period of his alleged offending were far more serious drug dealers than even the particular charge that the applicant faced may have suggested.
Of course, I repeat that these additional messages could have been included in the material tendered if counsel for the applicant had simply requested that that be done.
There might have been some point to the argument if, by establishing that the co-conspirators were involved in one or more different conspiracies but not this particular conspiracy, the applicant could not be guilty of this conspiracy. However, that was not how the case was conducted.
In my opinion the suggestion that the prosecutor had behaved improperly at trial was unsupported by any evidence, not made good, and indeed should not have been put forward. The argument was artificial, somewhat desperate and entirely untenable.
It was further submitted that the assessment of the vast volume of material which needed to be examined in order to identify any alleged misuse of material provided some additional support for ground 2. I reject that submission. I would refuse an extension of time to add proposed new grounds 3 and 4.
The conviction grounds previously dealt with by Nettle JA were only faintly pressed before us. No separate argument was advanced on the ground relating to sentence. I would refuse leave to appeal on those grounds, and in relation to sentence, for the reasons stated by Nettle JA. For the sake of completeness the reasons of Nettle JA are attached as Schedule A.
- - - - -
SCHEDULE A
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2013 0089 | |
| GIOVANNI POLIMENI | Applicant |
| v | |
| THE QUEEN | Respondent |
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APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
DETERMINED ON THE PAPERS –
JUDGMENT DELIVERED IN OPEN COURT
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| JUDGE | NETTLE JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | No oral hearing requested |
| DATE OF JUDGMENT | 16 October 2013 |
| JUDGMENT APPEALED FROM | DPP v Polimeni (Unreported, County Court of Victoria, Judge Montgomery, 15 April 2013) |
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CRIMINAL LAW – Conviction – Conspiracy to possess commercial quantity of unlawful border controlled substance (cocaine) – Application for leave to appeal against conviction – Whether substantial miscarriage of justice resulting from curtailment in legal aid – Whether conviction vitiated by apprehended bias – R v Chaouk [2013] VSCA 99, distinguished – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; R v Balic (No 2) (1994) 75 A Crim R 515; R v Sonnett (2010) 30 VR 519, referred to - Application dismissed.
CRIMINAL LAW – Sentence – Sentence of 18 years’ imprisonment with non-parole period of 12 years – Whether judge erred in ascertainment of applicant’s level of involvement in conspiracy – Whether sentence in breach of parity principle when compared to sentences imposed on co-conspirators – Whether sentence vitiated by ostensible bias – Whether judge making sufficient allowance for delay – Whether sentence manifestly excessive – Application dismissed.
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| Appearances: | Counsel | Solicitors |
| No appearance by leave of the Court | ||
NETTLE JA:
Following a trial in the County Court at Melbourne, on 22 March 2013 the applicant was found guilty of conspiracy to commit the offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely, cocaine[1] and sentenced therefor to 18 years’ imprisonment with a non-parole period of 12 years. He now seeks leave to appeal against conviction and sentence.
[1]Pursuant to sub-s 11.5(1) and sub-s 307.5(1) of the Commonwealth Criminal Code.
The trial
The trial commenced on 4 March 2013 before his Honour Judge Montgomery. The indictment alleged that, between 26 June 2008 and 8 August 2008, at Melbourne, the applicant conspired with Pasquale Barbaro, Severio Zirilli, Rob Karam, Sharon Ropa, Severino Scarponi and others to commit the offence of possessing a commercial quantity of an unlawfully imported border controlled drug, namely, cocaine. During the trial, it was alleged that one of the ‘others’ with whom he conspired was one Derek Mason, who remained uncharged.
The Crown case was that, on 26 June 2008, a cargo ship left port in Colombia with ninety-nine kilograms of cocaine secreted in one of the containers. It arrived in Melbourne on 24 July 2008 and in due course was seized by the authorities. The attempted importation was the subject of the conspiracy alleged.
For much of 2008 until shortly after multiple arrests in early August of 2008, the alleged conspirators and others were the subject of a large continuing Australian Federal Police investigation which included covert surveillance, the use of listening devices to record conversations, the use of telephone intercepts to record telephone conversations and otherwise the collection of SMS messages and like data. Ultimately, thirty three people were charged with serious drug offences arising out of a number of discrete incidents, and several were charged with acting in combination with others.
During the trial, the Crown called 13 witnesses, including Customs Officers, police investigators and employees of telephone service providers. None of them, however, gave any contentious evidence and there was little cross-examination. The bulk of the Crown case consisted of the formal proof of conversations and SMS messages between the alleged co-conspirators. Thus, the prosecutor summed up the proofs in his final address as follows:
There are more than a thousand separate communications between people to which you’ve been exposed. But about 80 per cent of those communications are SMS messages, with almost all of them comprising only a few short words.
Three Jury Books, totalling 1299 pages, were provided to the jury. The applicant also made extensive admissions of fact which were tendered and read into evidence by the prosecutor. The materials contained in the Jury Books were substantially read to the jury by a series of readers engaged by the Crown for that task. A large number of tapes were played, with the jury aided by transcripts in the Jury Books. The applicant did not give evidence and he did not call witnesses to give evidence.
The jury retired to consider its verdict on the morning of Thursday 21 March 2013 and found the applicant guilty on the afternoon of Friday 22 March 2013. That was the thirteenth day of the trial.
Application for leave to appeal against conviction
There are two proposed grounds of leave to appeal against conviction:
1) The judge erred in law in refusing the application temporarily to stay the commencement of the trial by adjourning it to a date to be fixed, and in failing to order that the trial not commence until counsel for the accused had the assistance of his instructing solicitor for the duration of the trial, and by so doing, failed to ensure that the applicant received a fair trial.
2) The judge was biased against the applicant in that his Honour determined and announced, prior to the commencement of the trial, that the strength of the Crown case should have persuaded the applicant to plead guilty.
Ground 1: Refusal of stay
The applicant was legally aided through the office of Victoria Legal Aid (‘VLA’). VLA funded Mr Christopher McLennan to act as the applicant’s solicitor and Mr James Shaw of counsel to appear at trial. From 7 January 2013, changes to VLA internal guidelines came into effect which limited funding for an instructing solicitor’s attendance at court to two half days regardless of the duration of the trial. Of those two half days, one of was devoted to the empanelment of the jury.
On 4 March 2013, defence counsel applied for an order that the applicant’s trial be stayed until VLA provided sufficient funding for his instructing solicitor to attend court to instruct throughout the trial. The application was based on the decision of Lasry J in R v Chaouk,[2] to stay the trial in that proceeding until VLA funded the attendance of Chaouk’s solicitor at court throughout the trial. Reliance was also placed on the decision of T Forrest J to similar effect in MK v Victoria Legal Aid.[3] On 2 May 2013, this court dismissed an appeal by the Crown against Lasry J’s decision in Chaouk.[4] There was no appeal against T Forrest J’s decision.
[2][2013] VSC 48.
[3][2013] VSC 49.
[4]R v Chaouk and others [2013] VSCA 99.
On 4 March 2013, Judge Montgomery heard evidence and argument in support of the application for stay. The evidence included testimony by Mr McLennan as to his historical and prospective role as instructing solicitor. On 5 March 2013, the judge refused the application.
Under the heading of Ground 1, it is contended that the judge erred in refusing the application and thereby caused a substantial miscarriage of justice. Among other criticisms of his Honour’s approach to the application, it is said that he appeared to be uninterested in the application, and to be dismissive of its merits from the outset of argument, and particularly dismissive of the evidence of Mr McLennan.
Counsel for the applicant also pointed to observations made by the judge in the course of the application that, in his Honour’s opinion, this case was not a ‘not a hard trial … it’s a final address trial’ and that his Honour suspected that Mr McLennan had not read the brief. In counsel’s submission, the judge’s reasoning amounted to saying that, because it was not demonstrated that Mr McLennan was a significant contributor in his role of instructing solicitor before 7 January 2013, there was no reason to suppose that he would make any more contribution after 7 January 2013 (even if legal aid funding were re-established at the pre-7 January 2013 level) and, therefore, there was nothing to be gained by staying the trial until the pre-7 January 2013 level of funding was restored.
In counsel’s submission, that reasoning betrayed a misconception that the legal aid regime which had operated up to 7 January 2013 was fair and that, because the position which would apply to the applicant after 7 January 2013 would be little different in practice from what had applied before 7 January 2013, it was not demonstrated that the changes of 7 January 2013 would render the accused’s trial unfair. Counsel argued that, so far from that being the case, the legal aid regime which had operated up to 7 January 2013 was by and large unfair and, therefore, the regime adopted on 7 January 2013 made it even more unfair.
Counsel also relied on observations of Lasry J in R v Chaouk (with which this court expressed agreement on appeal) concerning the important role of an accused’s instructing solicitor in a criminal trial, including the taking of instructions; consequential thorough familiarity with the facts of the case; an ability ‘to provide valuable opinions and insights, as required in planning the defence of the accused’; and consulting with counsel as to whether or not the accused should give evidence. Counsel stressed Lasry J’s observation that ‘the making of important decisions best occurs in consultation with another lawyer who is experienced and well versed in the facts of the case and the relevant law’. It followed, counsel submitted, that the cessation of funding for the continued involvement of Mr McLennan in the applicant’s trial, virtually on the eve of the trial, was necessarily productive of a degree of unfairness to the applicant which was substantial, albeit incapable of quantification or precise particularisation.
Moreover, in counsel’s submission, if anything the unfairness to the applicant in this case was more pronounced than in Chaouk because of what counsel said was the vast imbalance between the resources available to the Crown in this case and the very few resources at the applicant’s disposal. As counsel put it, apart from the selection of the jury, defence counsel was very much on his own, competing with a prosecutor fortified by the constant presence and assistance of two ‘Informants’ from the investigative team, and two and sometimes more than two instructing solicitors.
Additionally, counsel said, compared to defence counsel, the prosecutor had been involved in numerous pleas and trials on related subject matters, many of which were heard by Judge Montgomery, and some of which were concerned with the same alleged conspiracy and co-conspirators. As a result, the prosecutor was so familiar with the complex of evidentiary material as to move Judge Montgomery to compliment him on having an ‘encyclopaedic memory’ of the material. To illustrate the point, counsel referred to an exchange which occurred near the end of the trial when defence counsel interrupted the prosecutor’s proposed final address in order to air his confusion over tapes he had expected to be in evidence but which he could not find. At first the prosecutor responded by saying that, ‘I’ll try to remain calm’. That led the judge to castigate defence counsel thus:
Mr Shaw, I’m not going to go into the who’s and why’s and wherefore’s, but you know as well as I do that Mr Young has an encyclopaedic memory about all these sorts of things and it’s only a matter of asking him and he’ll tell you where it is. You don’t have to search for days, you just ring him up and ask him and he’ll tell you.
The unfairness of it all was further exacerbated, counsel alleged, by what he described as an ‘agonisingly narrow time frame’ which left defence counsel to ‘run the gauntlet’ of inadequate preparation, with consequent inability properly to advise the applicant whether to give evidence, and thus an ill-informed decision not to give evidence which consigned the applicant to what counsel called as the certain fate of negative jury reaction to his failure to tell his story.
It was also not without significance, counsel argued, that the applicant was the only one of the alleged conspirators whose trial was affected by the extra-ordinary hiatus in legal aid funding from 7 January to 7 May 2013,[5] and therefore that he alone was subjected to the level of unfairness which resulted.
[5]When the policy was changed.
At first sight, I was inclined to think there might be something in those complaints. Given what I discerned to be the complexity of the evidence, and the very significant disparity between the resources at the Crown’s disposal and the resources available to the defence, it presented as reasonably arguable that any reduction in defence resources below a minimum compliment of defence counsel and a fully engaged instructing solicitor was calculated to result in significant unfairness. On closer examination, however, and after taking the Crown’s submissions into account, I am not persuaded that is so. Several considerations have led me to the contrary conclusion.
First, during the debate as to whether the trial should be stayed, defence counsel acknowledged that there was ‘some force’ in the Crown’s characterisation of the type of case, as follows:
1) It was not a ‘hard trial’.
2) It was a ‘final address trial’.
3) Unlike Chaouk and MK, it was considered to be ‘hardly … likely’ that there would be any cross-examination concerning identity or credibility; and, in fact, there was no attempt to contradict or discredit any of the witnesses who were called by the Crown.
4) It was not anticipated that there would be any change in the Crown case in the course of running which might bear on the applicant’s decision whether to give evidence and, in fact, there was no such change.
5) The assumption was that there would not be ‘much legal argument’ and in fact there was even less than had been anticipated.
Secondly, defence counsel acknowledged during the application that, even with pre-7 January 2013 levels of funding, his instructing solicitor had not performed and would not be likely to perform a number of the potential roles of an instructing solicitor adumbrated in Chaouk. Just as significantly, when Mr McLennan was cross-examined, he conceded that, even if funding were restored to the pre-7 January 2013 level, he would not attend court to instruct on a daily basis. He contemplated sending a junior employee who would not necessarily be familiar with the case.
Thirdly, although it seems that the Crown is almost invariably better resourced to conduct a criminal trial than an accused, the disparity of resources in this case was not as much as first appeared. I was informed by the Crown, without objection, that ‘the two informants from the investigative team’ to which counsel for the applicant referred were in fact AFP officers who were not witnesses but rather present, sometimes singly and sometimes together, to play or display the audio/video media packages forming the bulk of the Crown case. Similarly, I was informed that, although the Crown had an experienced instructing solicitor well familiar with the case present throughout the trial, the second instructing solicitor was a junior who had no experience of the matter and whose role it was to remain present when the more senior solicitor needed to be absent.
Fourthly, the so-called ‘agonisingly narrow time frame’ is a significant overstatement. As I was informed by the Crown, once again without objection, defence counsel was of more than 16 years call with significant criminal trial experience. He was briefed in August 2012 and VLA funding included preparation for a joint trial which was then listed to begin late in September 2012. Then, late in September 2012 , a separate trial of the applicant was ordered and listed for hearing in late February 2013. Thus, in the absence of contrary evidence, it appears that there was abundant time for preparation and planning, including making an informed decision as to whether the applicant should give evidence.
Finally, as the Crown submitted, one will search in vain to find anywhere in the transcript where defence counsel made a complaint about a specific instance of unfairness; there was no point during the trial at which defence counsel ever sought additional time to consult with his instructing solicitor or to obtain other assistance; and there is nothing which the applicant is even now able to identify by way of specific unfairness as opposed to the unquantifiable intangible notion of unfairness to which counsel for the applicant referred.
So to say is not to question the importance of the role of instructing solicitor in the defence of serious criminal charges. I remain firmly of the view, expressed in Chaouk, that in many if not most cases the absence of an instructing solicitor from court throughout the trial of a serious indictable offence is likely to be productive of a ‘substantially increased ... likelihood of errors being made or important matters being overlooked by counsel’, and thus the significant risk that the trial will be unfair. Each case, however, turns on its own facts and circumstances and, in this case, the position appears to be clear. Despite the absence of Mr McLennan from court for the large part of the trial, and despite the difficulties to which one might suppose that would have led, no such difficulties emerged.
Perhaps, that was the result of the nature of the trial. The evidence was all known and available for consideration well in advance of the trial and, as the judge discerned, there was adequate time – in effect six months – to consider the evidence and plan the defence accordingly. At the same time, it would be wrong to suppose that circumstances of that kind will always be sufficient to avoid a significant risk of unfairness. Each case is different and, as a general proposition, all that can be said with any degree of certainty is that most times the absence of an instructing solicitor will likely prove problematic.
In the end, however, in the events which are shown to have occurred in this case, I am not persuaded it is reasonably arguable that the judge’s refusal to stay the trial pending provision of adequate legal aid funding resulted in a serious miscarriage of justice.
Ground 2: Apprehended bias
The claim advanced under Ground 2 is one of apprehended bias which is based on some observations of the judge, made in advance of the trial, as to the utility of the applicant pleading guilty and as to his reasons for delay.
The facts relied upon in support of that contention are that the judge was administratively responsible for the management of numerous interconnected trials concerning the facts in issue in the trial in this case and his Honour thus presided over numerous mention hearings and call-overs in advance of the trial in this case. One such hearing was held on 24 September 2012 and several following days. The applicant was represented at that hearing by defence counsel. During the hearing, the judge inquired of several defence counsel as to the prospects of their clients pleading guilty. In the course of that inquiry, there was the following exchange between the judge and senior counsel for one of the applicant’s co-accused, Karam.
COUNSEL: The disposition of those appeals is pending, and as I again understand it Her Honour will sentence my client upon knowing what the appeals in respect of the others result in. So that could happen, presumably will happen, during the currency of this trial, but I just don’t know.
HIS HONOUR: I just point out to you through your client [sic], and your client no doubt is listening, if I were to sentence him first with the discount still available it might be some assistance to him when he gets in front of Justice King, as far as totality and concurrency goes.
COUNSEL: I’m sure my client’s listening.
HIS HONOUR: You know as well as I do about these drug cases and the rate of success in them. I can only urge you to talk to your client about that, and Mr Young [the prosecutor] is usually a pragmatic person.
COUNSEL: He writes well.
HIS HONOUR: Yes, he writes well, but he’s obviously - - -
COUNSEL: Even I had to look up a few words.
HIS HONOUR: I can’t make it any clearer. If your client’s not interested he’s not interested but I suggest that he rethink. And same for you Mr Shaw. Your client seems to be all over it on the Crown case. (Emphasis added)
MR SHAW: I’m sure Mr Polimeni is listening.
HIS HONOUR: On the cocaine charge. All right. Mr Young?[6]
[6]Emphasis added.
The applicant also relies on the fact that he originally sought to retain the services of Mr Arthur Aguirre, a Sydney solicitor, to conduct the applicant’s defence but that Mr Aguirre was unable to act after the applicant applied for Legal Aid. When that occurred, the applicant appeared in person before the judge at a mention hearing sometime during 2012 (as to the date of which the applicant is otherwise uncertain) and explained that there was a resultant delay. The judge is then said to have accused the applicant of ‘a ploy to delay the inevitable’.
The nub of the argument thus put under Ground 2 is that the judge’s remarks on each of those two occasions just mentioned resulted in a reasonable apprehension that the judge was biased against the applicant; more precisely, the judge’s remarks made it appear that his Honour held an obviously strong view that the applicant was guilty of the offence alleged and should have pleaded guilty, and that by not doing so the applicant was simply delaying the inevitable.
The principle of apprehended bias is not in doubt. It was restated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy[7] as follows:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.[8]
[7](2000) 205 CLR 337; Fattal & Ors v R [2013] VSCA 276, [140].
[8]Ibid 344-5 [6] (citations omitted).
It is also accepted that the principle applies to a criminal trial judge although it is the jury and not the judge which determines the verdict. As Cole JA observed in R v Balic (No2):[9]
Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless, questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of the jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.
[9](1994) 75 A Crim R 515, 520.
Of course, the principle has a different and in some respects less extensive role to play in a case of trial by jury than in a case of trial by judge alone. Hence, as this Court observed in R v Sonnett:[10]
… it has long been a common practice in this state for one judge to be assigned to deal with all related matters arising out of a single criminal enterprise, with the aim of achieving consistency in rulings and the sentencing of co-offenders. In that context, it is standard and well regarded practice for a judge to determine factual issues concerning the involvement of one accused as against another before the trial of the latter, for the limited purpose of sentencing the former. Accordingly, if an accused pleads guilty on an undertaking to give evidence for the Crown at a later trial of a co-accused, it is commonplace for the trial judge to sentence that accused and, therefore, to make findings as to that accused’s role or place in the hierarchy of offending for the purposes of passing sentence, before commencing the trial of the co-accused.
…
It is different with some forms of civil proceedings where the judge constitutes the tribunal of fact. The risk of apprehended bias in cases of that kind is greater simply because of the more expansive role which a trial judge must play in non-jury civil litigation. But in the case of criminal jury proceedings, the fact that a judge has sat on the trial of one co-accused is not a reason per se to exclude him or her from sitting on a subsequent trial of another co-accused.
… The nature and volume of criminal trial practice in this state is such that the system would break down unless judges could be relied upon to deal sequentially with the trials of co-offenders and put out of their minds whatever might occur in one such trial for the purposes of another. The fair minded lay observer may be taken to know that that is the way the system works and to accept that it does so fairly and impartially.
Contrary to the submissions advanced on behalf of the applicant, it is not at all unrealistic to proceed on the basis that judges are able to and do bring that sort of impartiality to bear on the task at hand. After all, the law daily requires at least as much mental self-discipline on the part of lay jurors when confronted by evidence admissible against one co-accused which is inadmissible against another, or by pre-trial publicity concerning matters in issue which must be excluded from consideration. And, as Spigelman CJ said in R v Kearns,[11] judges have the added advantage of professional training and experience.
[10](2010) 30 VR 519, 525[21]-[27].
[11][2003] NSWCCA 367, [35]-[38].
Nevertheless, criminal trial judges need to exercise particular care in making suggestions as to the utility of an accused pleading guilty. It is one thing and perfectly proper to alert an accused to the option of pleading guilty and it is quite another thing, and it is improper, to make suggestions calculated to influence the accused to decide to plead guilty. As the majority of this court held in R v Guariglia.[12]
[12](2010) 208 A Crim R 49, [36]-[38] (citations omitted).
… it is [not] necessarily wrong for a trial judge to encourage discussions between the Crown and an accused. Depending on what is said, it may present as entirely neutral. That was the case in Holden. But, generally speaking, it is not the function of a trial judge to express views about the strength of the Crown case (except to the extent that is necessary to determine a no-case submission), still less to do so for the apparent purpose of persuading an accused of the advantages of pleading guilty. Moreover, according to long standing authority in this State, it is improper for a judge to couple the expression of such an opinion with an intimation to the accused that a plea of guilty will lead to a more lenient sentence than would be imposed on conviction following a contested trial. As the Court of Criminal Appeal said in R v Gray:
We would, however, condemn as entirely improper the holding out to an accused person having a genuine defence of any inducement to plead guilty in the hope of attracting leniency in punishment … no promise can properly be held out to him.
As one might expect, that is also the view which is taken in other states. In R v Lawrence Moffit P held that:
A less sentence cannot be brought [sic] by a plea of guilty. It is basic that any confession of guilty to be acted upon must be voluntary and not procured by any threat or promise, such as a promise that the prisoner shall be dealt with more leniently. Likewise there can be no bargain in the criminal procedures so a plea of guilty entitled the prisoner to a less sentence: R v Gray.
To substantially the same effect, in R v Harman, Andrews CJ said:
Reference was made during the course of argument before the learned sentencing judge and, indeed before us, to the desirability of inducing guilty persons to plead guilty to save time, expense etc. The advantages in a material kind of way are obvious but, in my view, we must never approach a stage where people can be induced to plead expecting some precise reduction of what would otherwise be an appropriate sentence.
Of course, a plea of guilty may attract a more lenient sentence, and defence counsel may properly advise an accused of that probability. But, as has been explained, there must be no suggestion of ‘an inducement offered or approved by the court prior to the plea’. A trial judge should not decide, and should be seen not to have decided, whether any or what discount is to be allowed for a plea of guilty until after the plea has been entered. To intimate in advance of a plea of guilty that such a plea would lead to a discount on sentence is an inappropriate engagement in judicial plea bargaining which has the potential to dissuade an accused from exercising his or her rights, and thereby to result in a miscarriage of justice.
What was said in Guariglia must now be read subject to Part 5.6 of the Criminal Procedure Act 2009 (which provides for sentence indications). But, as s 208(1) of the Act makes clear, such an indication may only be given on the application of the accused and it may only be given once during the proceeding unless the prosecutor otherwise consents. Otherwise, what was said in Guariglia continues to apply.
It follows that, if the judge did say that the applicant’s application for extra time was a ‘ploy to delay the inevitable’, it was a most ill-advised thing to say; and, whether or not the delay was a ploy (which it is unnecessary to decide), the judge’s observation was calculated to create the apprehension that his Honour had taken a set against the applicant’s case, contrary to the presumption of innocence. Hence, other things being equal, I should think that it would be reasonably arguable that this is a case of apprehended bias and, if so, that the verdict should be set aside.[13]
[13]See and compare CUR 24 v Director of Public Prosecutions [2012] NSWCA 65.
As the Crown has submitted, however, things are not otherwise equal. Critically, neither senior counsel for Karam nor defence counsel on behalf of the applicant took any exception to either of the judge’s observations. Defence counsel did not ever suggest that the judge had created an apprehension of bias or request the judge to recuse himself. In effect, although legally represented, the applicant stood by and said nothing at all about it until after verdict was in.
As the High Court concluded in Vakauta v Kelly,[14] a party who has legal representation is not entitled to stand by until after judgment and then attack the judgment on the ground that, by reason of earlier comments by the judge, there has been a failure to observe the requirement of the appearance of impartial judgment. The same principle applies to a criminal case.[15] Where, therefore, as in this case, the possibility of an apprehension of bias is created by what a judge has said in the course of running, and the accused fails to object until after the verdict is known, the accused may be taken to have waived the right to appeal against the verdict on the ground of what was said.[16]
[14](1989) 167 CLR 568.
[15]R v Mckosker [2011] 2 Qd R 138.
[16]Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ), 577 (Dawson J), 587-8 (Toohey J); R v McKosker [2011] 2 Qd R 138, [5] (Keane JA), [91]-[97] (Chesterman JA) (citations omitted).
In the result, even if there were an apprehension of bias, I am not persuaded that Ground 2 is reasonably arguable.
Application for leave to appeal against sentence
There are five proposed grounds of appeal against sentence. They are that:
1) The judge erred in accepting that the level of the applicant’s involvement in the offending was as submitted by the Crown.
2) The judge erred in failing to apply or apply sufficiently the principle of parity.
3) The judge’s sentencing discretion miscarried by reason of bias due to the applicant’s failure to plead guilty.
4) The judge erred in failing to take delay sufficiently into account.
5) The sentence is manifestly excessive.
Ground 1: Level of offending
The judge found that the level of the applicant’s involvement in the offending was as set out in paragraph 5 of the Crown’s submission. That was as follows:
It is the prosecution case that the revealed circumstances of Mr Polimeni’s role within the conspiracy was at an elevated level of criminality arising from his trusted, long-term and knowing active involvement in furtherance of the conspiracy in combination with other key persons (Barbaro, Zirilli and Mason).
That conclusion was supported by the following evidence:
·The applicant’s involvement in the charged conspiracy spanned the duration of the offence period. He was a foundational member of the conspiracy, with continuing involvement and input enduring until the conspiracy was ended by arrests on 8 August 2008.
·The applicant’s involvement in the charged conspiracy was preceded by knowing active involvement in preparatory activities which included:
§ Travelling with Saverio Zirilli at short notice, at Barbaro’s expense, to Europe in mid-March 2008. While there, Zirilli, met members of the European narcotics trafficking syndicate who were later shown to have been involved in the plans for the supply of cocaine.
§ Immediately upon return, Zirilli engaged in conversations with Barbaro and a representative of the European syndicate (Philipoom) regarding an importation of cocaine from South America.
§ Soon afterwards, Barbaro met Derek Mason and another man (Costantino) who appeared to be involved in the planned importation of cocaine, and who were both connected to the applicant. The applicant was involved in organising that meeting.
·The applicant liaised with Barbaro, Zirilli and Mason, including:
§ Arranging meetings between them in Sydney.
§ Conveying messages between them.
§ Conferring with each of them. The applicant’s later reportage of conversations with Mason confirmed his detailed awareness of activities undertaken by Mason with the Colombian exporters of the cocaine at the formative stages.
§ The applicant attended meetings with Mason with Barbaro in Melbourne (in April) and in Griffith (in June).
§ The applicant attended meetings with Barbaro and Zirilli in Griffith.
·The applicant’s involvement as an active member of the conspiracy, which commenced in late June 2008, included:
§ His assistance to Zirilli in arranging a meeting with Mason in Sydney in early July with the intention that the relevant shipping documentation be provided.
§ Providing, or arranging for the provision of the relevant shipping documentation to Zirilli at some time between 5 July and 12 July 2008 (the date of delivery to Karam at Strathmerton).
§ Maintaining telephone contact with Derek Mason and the operator of the Costantino mobile phone throughout the period of the charged conspiracy.
§ Travelling from Griffith to Melbourne with Zirilli on the date of arrival of the shipping container holding the cocaine and thereafter remaining in Melbourne until it was realised that all hope of obtaining safe possession of the cocaine had gone
§ While in Melbourne, actively participating in conversations with co-conspirators (Barbaro, Zirilli, Karam and also Scarponi) in anticipation of imminent access to the container or the cocaine within. His participation included providing vital information concerning the manner in which the cocaine had been packed in Colombia, and that information could have been sourced only from the Colombian exporters.
§ In compliance with Barbaro’s request made on 31 July 2008, the applicant either personally obtained and provided, or otherwise arranged for the provision of the partial container number to Barbaro on or before the morning of 2 August 2008.
§ The applicant continued to liaise with Mason in relation to communications received from the Colombian exporters of the cocaine and travelled to Melbourne to make further enquiries and reported the position to Ropa (by then an inducted co-conspirator) and thereafter arranged to meet Barbaro and Mason at a nearby hotel.
·The applicant further indicated having a relationship with unidentified third party investors – persons also known to Barbaro and Zirilli.
Evidently, none of that evidence was contested. Defence counsel told the judge that he did not take any issue with it. The contest was as to ‘what that means as far as sentence goes’.
The applicant claims that the judge’s conclusion that all of the applicant’s activities of which there was evidence were in furtherance of the conspiracy was belied by the fact, established by the evidence, that the applicant was in a close friendly relationship with Barbaro and Zirilli and through associations with Ropa and Karam, each of whom were associated with Barbaro and Zirilli. But, as the Crown replied, that submission flies in the face of defence counsel’s concession on the plea that he did not take issue with ‘what my learned friend says about who did what, that’s clear on the evidence in the case …’.
Furthermore, as the Crown also argued, the only inference specifically attacked as being unsupported by the evidence is that there was ‘a relationship with unidentified third party investors’. That inference, however, was supported by uncontested evidence that, on 29 July 2008, at 4.24 pm, Zirilli asked the applicant whether ‘they will want to try again’, to which the applicant replied, ‘I wouldn’t tell them to try against with this guy mate’. At that point, Barbaro objected to the effect that the unnamed persons to whom he had referred as they had put in only a small amount of capital and so could not complain. Significantly, that conversation took place soon after Karam advised Barbaro that law enforcement authorities had targeted the container from Columbia.
In the result, it does not seem to me to be reasonably arguable that the judge erred in his findings as to the level of the applicant’s involvement in the conspiracy. On the contrary, it appears clear that the applicant’s level of involvement was profound.
Ground 2: Parity
The argument advanced under Ground 2 was that the sentence of 18 years’ imprisonment was excessive in comparison with the 13 years’ imprisonment imposed on the applicant’s co-offender Zirilli, because Zirilli was higher up in the hierarchy. Thus, it was contended, the parity principle was breached.
I reject that contention. The judge paid detailed attention to the requirements of parity, both during the plea and in his Honour’s sentencing remarks. The considerations to which he thus referred included the sentences of 13 years’ imprisonment imposed on Zirilli and 20 years’ imprisonment imposed on Barbaro, the roles which each of them played, the fact that the applicant stood trial whereas the other offenders pleaded guilty, and the fact that Barbaro and Zirilli were sentenced for conspiracy at the same time as they were sentenced for two other offences attracting maximum penalties of life imprisonment, with the result that the requirements of totality bore on the individual sentences imposed on them for their offences of conspiracy.
In the result, I see nothing indicative of error in the judge’s analysis or anything about his Honour’s sentencing disposition which is suggestive of it. I do not consider Ground 2 to be reasonably arguable.
Ground 3: Bias
Ground 3 is premised on the contention of apprehended bias advanced in support of the application for leave to appeal against conviction. For the same reasons as I have held that it is not arguable as a ground of appeal against conviction, and because the applicant did not take exception on the ground of apprehended bias before the judge passed sentence, I do not consider that it is reasonably arguable as a ground of appeal against sentence.
Ground 4: Delay
Equally, I do not think there to be anything in the complaint about delay. The judge specifically referred to the effects of delay in his sentencing remarks and the sentence accords with his Honour having made an appropriate allowance for the effects of delay. Hence, I do not persuaded that Ground 4 is reasonably arguable.
Ground 5: Manifest excessiveness
Finally, given the nature and gravity of the applicant’s offending, and the level of his moral culpability, any suggestion that the sentence is excessive is in my view untenable. This was a conspiracy to possess 50 times the minimum commercial quantity of cocaine. The applicant was profoundly involved in the conspiracy It was particularly serious offending. Unquestionably, it warranted condign punishment and, in those circumstances, it is not reasonably arguable that the sentence was beyond the range.
Conclusion
In the result, the application for leave to appeal against conviction and the application for leave to appeal against sentence will be dismissed.
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