Anderson v The State of Western Australia [No 2]
[2015] WASCA 91
•7 MAY 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ANDERSON -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 91
CORAM: BUSS JA
MAZZA JA
HALL J
HEARD: 1 APRIL 2015
DELIVERED : 7 MAY 2015
FILE NO/S: CACR 197 of 2014
BETWEEN: MICHAEL WAYNE ANDERSON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :DAVIS DCJ
File No :IND 1258 of 2013
Catchwords:
Criminal law - Leave to appeal against conviction - Application for extension of time to appeal - Application for leave to substitute new or different grounds of appeal - Application for leave to adduce additional evidence - Appeal dismissed
Legislation:
Criminal Appeals Act 2004 (WA), s 27(4)
Criminal Code (WA), s 409(1)(c)
Result:
Applications refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: No appearance
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Anderson v The State of Western Australia [No 3] [2014] WASCA 190
Borsa v The Queen [2003] WASCA 254
JS v The State of Western Australia [2014] WASCA 177
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Snook v The State of Western Australia [No 2] [2015] WASCA 29
Windie v The State of Western Australia [2012] WASCA 61
REASONS OF THE COURT: Before the court are the appellant's applications for:
1.an extension of time to appeal and, if granted;
2.leave to appeal against conviction;
3.leave to substitute new or different grounds of appeal; and
4.leave to adduce additional evidence.
At the conclusion of the hearing on 1 April 2015, the appellant was granted leave to file and serve, by 4.00 pm on 16 April 2015:
(a)a written application for leave to substitute new or different grounds of appeal;
(b)a written application for leave to adduce other additional evidence in the appeal; and
(c)affidavits and written submissions in connection with any applications for leave to substitute new or different grounds of appeal or to adduce other additional evidence in the appeal.
The court also ordered that all applications and other matters would be determined by this court on the papers and on the oral submissions made on 1 April 2015 without another hearing and without further oral submissions: see s 27(4) of the Criminal Appeals Act2004 (WA).
In response to these orders, the appellant filed, on 14 April 2015, an application to adduce new evidence and to 'Have the court consider special leave to grant a second appeal against sentence in the light of the new evidence'. This application was supported by an unsworn affidavit. In a letter which accompanied these documents, the appellant explained that, because a Justice of the Peace comes to Acacia Prison only once per week, he would not be able to have the affidavit sworn until 2.00 pm on 16 April 2015. No sworn version of the affidavit has yet been filed. We will, nevertheless, take into account the contents of the unsworn affidavit.
Background
The appellant was charged in the District Court on indictment with one count of fraud, contrary to s 409(1)(c) of the Criminal Code (WA) which read:
On 15 December 2009 at Perth [the appellant], with intent to defraud, by deceit or fraudulent means, gained a benefit, namely the sum of $753,139.86, for [the appellant].
On 28 January 2014, the appellant pleaded guilty to this charge and was duly convicted. On 17 April 2014, he was sentenced by Davis DCJ to 3 years 6 months' imprisonment with eligibility for parole.
The appellant sought leave to appeal against this sentence. On 9 September 2014, leave to appeal was refused and the appeal dismissed: Anderson v The State of Western Australia [No 3] [2014] WASCA 190. The orders of the court were perfected by the certificate of final conclusion dated 28 October 2014.
On 13 November 2014, the appellant filed his appeal against conviction approximately six months out of time. The affidavit of the appellant in support of an extension of time, dated 30 October 2014, explains the reasons for the delay. The delay is substantial and the reasons proffered by the appellant are unpersuasive. Whether an extension of time is granted will depend upon the merit of the appeal.
The facts of the offending
The factual background to the appellant's offending was set out by Mazza JA in Anderson v The State of Western Australia [No 3] between [4] and [11]. For the sake of convenience, we will set out in full what his Honour wrote:
On 1 November 2009, the appellant applied for a loan from the Police & Nurses Credit Society Ltd (the complainant) in the sum of $722,000 through a broker to purchase a home in Inglewood.
Although the appellant applied for the loan in his correct name, he gave a false date of birth. This is significant because, as will be seen, the appellant had been convicted, prior to 2009, of many dishonesty offences. The appellant was well aware that the application would be rejected if the complainant knew his true identity.
The appellant's deception was not limited to the provision of a false date of birth. The appellant also provided a number of documents which he had falsified, being:
(a)a birth certificate;
(b)a driver's licence;
(c)payslips from his then employer; and
(d)bank statements in respect of an account he held with Westpac.
The payslips were altered to represent that he was earning more income than, in fact, he was being paid. As to his income, he combined his earnings with his wife's, who was, at the time, working casually. The bank statements were falsified to substantially inflate his savings.
On 30 November 2009, the complainant, relying on the truth of the information the appellant had provided, approved the loan application.
On 1 December 2009, the appellant entered into a loan agreement with the complainant. In all, the complainant advanced him $753,139.86, $31,139.86 of which was the lender's mortgage insurance fee.
On 15 December 2009, the purchase of the property settled and the loan proceeds were disbursed. On that day, the complainant registered a first mortgage over the property.
Although the appellant made some repayments on the loan, he fell into arrears. In July 2011, the complainant took possession of the property and exercised its power of sale. The learned sentencing judge found that there was a shortfall on the sale of the property and that the overall loss to the complainant, including various costs, was $154,340.72. Most of this loss was recovered from the mortgage insurers, although, in the end, the complainant was left with a shortfall of $18,941.52. The appellant did not challenge any of these sums at first instance. Indeed, they were confirmed in the appellant's written sentencing submissions filed 18 March 2014.
The proposed ground of appeal and the proposed new or different grounds of appeal
The appellant is self‑represented. As drafted in the appellant's case filed 9 March 2015, the sole proposed ground of appeal was expressed in this way:
A mortgagee … is not at liberty to look after his own interests alone, and it is not right, or proper, or legal, for him, either fraudulently, or willfully, or recklessly to sacrifice the property of the mortgageor: that is all (Kennedy v De Trafford [5] … Lindley L.J) [sic].
The new or different grounds of appeal which the appellant seeks leave to add were included in the appellant's case, but were not then designated as grounds of appeal. As expressed by him, they are:
1.This offence involved Identity Fraud rendering the Mortgage Loan contract null and void from the beginning. This offence was not a simple fraudulent misrepresentation, it was identity fraud that went to the heart of the contract and affected its very formation. The law is very specific in relation to the remedies of identity fraud.
2.New evidence now proves, P&N Bank knew the loan was fraudulent from the 1st March 2011 and yet proceeded after that date in the Supreme Court with foreclosure and property seizure orders that they knew were no longer lawfully available to them.
3.The amount of the Loss [sic] was a significant express material fact having been specifically highlighted in the Statement of Material Facts.
4.The loss having been unlawfully and fraudulently incurred should be excluded from the evidence that was before the Courts [sic] and specifically should not have been recorded in the statement of material facts.
6.It is arguable if this matter was handled correctly, ethically and lawfully by P&N Bank no loss should ever have occurred. It is also arguable that if no loss had occurred or the house had been sold for a profit (as it should have been) that this matter would not be before the courts.
7.The loss which was fundamental to this action, formed the basis of the complaint on which this charge was laid, the plea entered, conviction recorded, restitution ordered and the sentence imposed resulting in a substantial miscarriage of justice.
8.All the costs incurred unlawfully totalling up to $242,827.40 should have been excluded as evidence. Significantly the reported loss was $154,340.72.
9.The appellant at the very least, should have a fundamental right to enter a plea and be sentenced based on the correct material facts and evidence. This did not happen in this case resulting in a substantial miscarriage of justice.
10.The only way to correct this substantial miscarriage of justice is for the conviction to be overturned and the matter put back before the Courts [sic] based on the correct material facts and evidence.
Although it hardly needs to be said, neither the proposed ground of appeal as originally framed in the appellant's case nor the proposed new and different grounds of appeal, are proper grounds of appeal. Further, it is clear that the appellant's complaint is not as to his conviction, but rather to being sentenced on the basis that the loss to the complainant caused by his fraudulent conduct, was $154,340.72. He now asserts that the complainant did not suffer any such loss. It may immediately be seen that as the appellant is not, in truth, disputing his conviction, the appeal is doomed.
The proposed additional evidence
The additional evidence the appellant proposes to adduce is contained in three affidavits sworn on 6 November 2014, 22 January 2015 and 26 February 2015. As we mentioned earlier in these reasons, we will also take into account the contents of the unsworn affidavit dated 14 April 2015. We have read this material, including the annexures (31 in total). It is unnecessary to summarise their contents. It is sufficient to say that the material is directed to disputing the amount of the loss sustained by the complainant and making various allegations against the complainant of improper behaviour on its part. At no time does the appellant deny his fraudulent conduct. Indeed, he admits it, characterising it as 'identity fraud'.
Legal principles relating to setting aside of a conviction after a plea of guilty
The principles with respect to the setting aside of a conviction based on a plea of guilty are well established.
A conviction based on a plea of guilty cannot be set aside unless the appellant satisfies the court that a miscarriage of justice has occurred. Although the categories of miscarriage of justice are not closed, there are three well‑recognised grounds for allowing such an appeal:
1.where the appellant did not understand the charge or did not intend to plead guilty; or
2.where on the admitted facts, the appellant could not, in law, be guilty of the offence; or
3.where the plea of guilty has been obtained by inducement, fraud or intimidation or the like.
See Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J); Borsa v The Queen [2003] WASCA 254 and Snook v The State of Western Australia [No 2] [2015] WASCA 29.
It is no easy feat to persuade a court to set aside a plea of guilty on the basis of a miscarriage of justice. This is particularly so where, as in this case, the appellant was represented by counsel at the time he entered his pleas. There must be a strong case for the court to set aside a conviction based on a guilty plea: Windie v The State of Western Australia [2012] WASCA 61 [31].
There is nothing before this court, including in the proposed additional evidence the appellant seeks to adduce, which brings the appellant within any of the well‑recognised categories in which courts are prepared to set aside convictions based on pleas of guilty. The material demonstrates that:
1.he understood the nature of the charge and intended to plead guilty to it;
2.his plea of guilty was unequivocal;
3.on the admitted facts he was, in law, guilty of the offence; and
4.there is nothing to show that the plea was obtained by improper inducement, fraud, intimidation or the like.
The appellant did not deny, when he entered his plea of guilty or at any time during the sentencing proceedings or before this court, that he had provided the complainant with a number of documents, which he had forged, and that the complainant, relying on the truth of the information contained therein, had advanced the appellant the sum of $753,139.86 as alleged in the charge on the indictment.
The actual loss incurred by the complainant as a result of the appellant's fraud was a matter relevant to sentence, but not to conviction. The appellant was free to dispute the quantum of the actual loss to the complainant in the sentencing proceedings, but did not do so. In fact, his counsel admitted the quantum of the loss he now disputes.
In the appellant's application for leave to appeal against sentence, he sought to adduce additional evidence disputing the quantum of the loss suffered by the complainant. This court concluded that the proposed additional evidence was insufficient to justify the imposition of a different sentence: Anderson v The State of Western Australia [No 3] [113]. For that, and other reasons, the application for leave to appeal against sentence was refused and the appeal was taken to be dismissed.
The present appeal, while mantled as an appeal against conviction, is, unambiguously, a second attempt to appeal against sentence. This is made clear by the precise terms of the order sought in his application filed 14 April 2015:
Leave for the Court [sic] to consider the question of whether a second appeal against sentence should be allowed so that the new evidence can be properly considered in relation to sentence.
Where an appellant has appealed against his or her sentence and that appeal has been considered on its merits and finally disposed of, as has occurred in this case, the law (in particular, the Criminal Appeals Act) does not then permit a second appeal. Nor does this court have the power to reopen the first appeal, to permit the appellant to raise new grounds of appeal: JS v The State of Western Australia [2014] WASCA 177.
The appellant's appeal against conviction has no reasonable prospect of succeeding on any ground proposed by the appellant. Having regard to the lack of merit in the appeal and the delay in bringing the appeal, we would not grant an extension of time. As there is no merit in any of the new or different grounds of appeal proposed by the appellant, his application to bring them should be refused, as should his applications for leave to adduce additional evidence.
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