Crespin v The Queen
[2016] VSCA 224
•16 September 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0164
| KITCHENER CRESPIN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, OSBORN and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 September 2016 |
| DATE OF JUDGMENT: | 16 September 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 224 |
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CRIMINAL LAW – Appeal – Interlocutory Appeal – Refusal of trial judge to certify – Application for review of refusal to certify – Application made out of time – Whether discretion of Court of Appeal to extend time should be exercised – Reasons for late application – Application hopeless – Time not extended – Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J F Desmond | – |
| For the Respondent | Mr D P Holding | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA:
OSBORN JA:
FERGUSON JA:
The applicant is facing six charges of criminal damage to property before the County Court at Melbourne. The offences allegedly occurred on a series of dates in January 2013.
The applicant is a builder by occupation and the prosecution case is that he went to a building site on a series of occasions after falling into dispute with the owners and wilfully damaged different parts of a partially constructed building.
The case is founded upon a combination of circumstantial evidence which together gives rise to a strong prima facie case.
The defence response initially filed in the County Court indicated that the applicant proposed to deny that he caused the damage and then to contend that, if he did cause the damage, he lacked the necessary mens rea for the offences or had a lawful justification for doing what he did. Subsequently, counsel for the applicant has indicated that it is not now disputed that the applicant caused the damage forming the basis of the charges.
At the committal stage (5 August 2013), the applicant was represented by Mr Dunn QC and Mr Dann (now also a senior counsel).
Initially he faced three charges but, after pleading guilty to one rolled up charge, the two further charges were withdrawn.
The applicant entered a plea of guilty apparently in the expectation, or at least the hope, that this might lead to the matter proceeding summarily in the Magistrates’ Court. The Magistrate did not accede to an adjournment intended to facilitate this course by enabling a further investigation of quantum.
When the matter came on for directions before Judge Meredith in the County Court, the applicant pleaded not guilty to the six charges relating to the disaggregated elements of the conduct which had formed the basis of the initial charge to which he pleaded.[1]
[1]The committal transcript records:
HER HONOUR: Very well, thank you. Mr Crespin, what I’m now required to do is give you the formal caution in relation to this matter. You may plead guilty or not guilty. If you plead guilty to all of the charges or some of the charges today or at any time before or during your trial, a sentencing judge may take into account whether you pleaded guilty in a stage in the proceeding at which you pleaded guilty or indicated an intention to plead guilty. It is also your right to plead not guilty to all of the charges or some of them. Whatever you say will be recorded and may given in evidence if you appear before a judge. Do you plead guilty or not guilty.
ACCUSED: Plead guilty, Your Honour.
There is no dispute that the applicant was entitled to plead not guilty, but equally the prosecution was on the face of it entitled to call evidence upon his trial as to his previous plea of guilty. The relevant principles were stated by Winneke P in R v D’Orta-Ekenaike:
In the State of Victoria the situation has always been, as I understand it, that a plea of guilty entered at the Magistrates’ Court can be changed on arraignment, but the accused is aware from the moment he enters that plea that it is likely to have evidential consequences at the trial. Such is the consequence of the caution administered to him at the time when he enters the plea: reg. 1002 of the Magistrates’ Court General Regulations. As the Full Court of this State said in Broadbent’s case at 736:
When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, ss. 47 and 48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him.
So far as I am aware, although the nature of the caution has changed, the consequences of the plea have not.
It is true that it is still a matter for the trial judge to determine, in the exercise of his discretion, whether evidence of the plea should be admitted on the trial. There is nothing, however, in the circumstances of this case which suggests that the trial judge was in error in exercising his discretion to allow evidence of the lower court plea to be admitted in evidence at the trial. It is true that the evidence was potent, but prejudice is not to be equated with probative value.[2]
[2][1998] 2 VR 140, 145–6.
In turn, application was made on behalf of the accused to exclude evidence of the plea of guilty under ss 90, 135 or 137 of the Evidence Act 2008 (the ‘Evidence Act’).
On 6 June 2016, his Honour Judge Meredith refused this application giving careful, coherent and cogent reasons for doing so.
On 8 June 2016, his Honour refused to certify pursuant to s 295(3) of the CriminalProcedure Act 2009 (the ‘Criminal Procedure Act’) in respect of that decision. He so refused because he was not persuaded that his substantive ruling was attended by any significant doubt.
In considering this issue, his Honour adopted the course endorsed in MA v The Queen.[3]
[3](2011) 31 VR 203, 205 [4]–[6] (Redlich JA, with whom Weinberg and Bongiorno JJA agreed).
On 14 August 2016, the applicant sought leave:
(a) to review the refusal of the trial judge to certify; and
(b) to do so out of time.
Section 296(2)(a) of the Criminal Procedure Act provides that, if the trial has not commenced, an application to review a refusal to certify shall be made within 10 days after the day on which the judge refuses to certify or within any extension of that period granted under s 313. Section 313 gives the Court of Appeal the power to extend the relevant time.
By affidavit sworn 16 August 2016, the applicant describes the reasons for delay in making his application as follows:
9. On 8 June 2016 his honour [sic] Judge Meredith refused certification.
10.After his honour’s [sic] refusal I sought further legal advice from my trial lawyers as to the prospects of an interlocutory appeal. They gave me certain advice and suggested that I seek advice from senior counsel unconnected with the trial before making any decision to proceed with an interlocutory appeal.
11.Verbal advice was obtained from senior counsel which I considered. I advised my trial lawyers that I still wished to proceed with an interlocutory appeal.
12.On 9 June 2016 my counsel informed his honour [sic] Judge Meredith that I wished to proceed with an interlocutory appeal.
13.On 10 June 2016 his honour [sic] Judge Meredith adjourned the County Court Proceedings for a further mention on 12 September 2016 and the anticipated resumption of the trial on 18 October 2016.
14.On or about 11 June 2016 I considered the written advice that had been obtained from senior counsel.
15.On or about and after that date my trial lawyers advised that it would be best if independent lawyers were instructed and briefed to conduct any interlocutory appeal.
16.I felt very discouraged and despondent about the advice that I had received and the expense that would be incurred in briefing new lawyers for the interlocutory appeal.
17.A significant proportion of my assets have been frozen under an order sought in relation to this matter and my financial situation has been strained.
18.From 11 June 2016 to date I have not had sufficient resources to incur further significant liabilities in instructing and briefing new lawyers for the purposes of an interlocutory appeal.
19.I have found the process of completing the necessary documents for this interlocutory appeal a slow and difficult one. I have had to seek advice on a pro bono basis and this has been necessarily slow and difficult.
20.I have been feeling extremely despondent about the prospect of running further litigation and my prospects of success and that has delayed my completion of the necessary documents.[4]
[4]Affidavit of applicant sworn 16 August 2016, [9]–[20].
In our view, the Court should refuse leave to extend time. In reaching this conclusion, we have had regard first, to the reasons put forward for non-compliance with the time limit and, secondly, to the applicant’s underlying prospects of success. Under s 296(4) of the Criminal Procedure Act, the Court of Appeal must consider the matters relevant to an application for leave to appeal under s 297 when considering an application for review of a refusal to certify. The prospects of success are thus relevant to a review of a refusal to certify. In turn, they bear on the appropriateness of an extension of time. There is no point in extending time if the application has no prospect of success.
In the present case, we note the following matters relating to the delay which has occurred:
(c) the applicant was in court when his counsel was given a copy of ‘Court of Appeal — Practice Statement No 1 2016’, and when the 10 day time limit was expressly mentioned by the trial judge;
(d) the applicant had had access to legal advice at the time of the judge’s ruling and obtained extended advice thereafter;
(e) given the simple nature of the central issue raised by the applicant in his written material we are not persuaded his claimed lack of resources explains away the delay which has occurred;
(f) feelings of despondency are far from unusual among accused persons facing trial for relatively serious offences and could not themselves justify an extension of time;
(g) the application is with respect to an evidentiary ruling which does not affect the core case as to circumstantial matters;
(h) the forthcoming trial will be a relatively short one and this favours the view this Court should not intervene;[5]
(i) the delay which has already occurred in this matter is on its face inordinate.
[5]MA v The Queen (2011) 31 VR 203, 206 [10].
In these circumstances, we do not accept that the applicant’s explanation for delay is adequate.
Further, and more fundamentally, the substantive application is, in our view, hopeless. The following matters underpin this conclusion.
The applicant must show that the trial judge’s conclusion was not open to him in order ultimately to succeed in overturning it.[6]
[6]Ibid 207 [13].
The application to exclude the evidence of the plea made in the Magistrates’ Court was made on the basis that the applicant’s plea did not represent a true admission of guilt. It was founded on evidence from the applicant that:
·he entered his plea as a result of commercial or financial pressure upon him in order to get the matter over quickly and cheaply and his plea did not represent a true admission of guilt;
·the applicant understood a deal was being done with the prosecutor and the prosecutor reneged on that deal;
·the day of the committal hearing was a fog and he did not understand the process;
·he was suffering from depression and was an emotional mess.
The judge was unimpressed by the applicant as a witness and did not accept the applicant’s evidence. The judge was satisfied that the applicant’s plea of guilty was made freely and voluntarily and was motivated out of a consciousness of his own guilt of the offence in question.
The proposed grounds of appeal assert that for a variety of reasons the judge erred in his reasoning and his conclusion was not open to him.
In our view, it was entirely open to the judge to reject the applicant’s evidence and this was necessarily determinative of his application. We note the following:
(1) The onus was upon the applicant. It is a difficult thing for an appellant/applicant to establish that a judge was bound to be persuaded of the truth and reliability of contested oral evidence.
(2) The various reasons put forward by the applicant for his plea were, as the judge noted, to some degree self-contradictory. Either the applicant did or did not understand what was going on. Either he entered his plea for financial reasons or in the hope of obtaining the jurisdictional benefit of a lesser potential maximum penalty in the Magistrates’ Court or he was simply depressed.
(3) Five months after the applicant entered his plea in the Magistrates’ Court, he gave evidence at the Victorian Civil and Administrative Tribunal that he possessed substantial assets. As the judge noted, this evidence did not sit comfortably with the applicant’s assertion that he was under overwhelming financial pressure at the time he entered his plea of guilty.
(4) It is plain that the plea was entered in a considered manner and with the benefit of advice from experienced counsel, as the judge noted:
The following is not the subject of dispute between the parties and is apparent from the transcribed proceedings in the Magistrates’ Court: The committal hearing was stood down; discussions took place with the legal representatives of both sides; CCTV footage was viewed by the defence which the Crown rely upon to implicate the accused, and after this process, he entered a plea of guilty. The plea was to one charge only, with two other charges being withdrawn.
There was then an application to adjourn the matter for approximately a month to enable the defence to explore the quantum of damage issue, with a view to making an application to have the matter dealt with in the Magistrates’ Court. The magistrate refused to adjourn the matter and Mr Crespin was given a plea date in the County Court.[7]
[7]DPP v Crespin (Unreported, County Court of Victoria, Judge Meredith, 6 June 2016) 227.
(5) No medical evidence was led supporting the proposition the applicant was suffering from depression or other disabling condition which might cause a ‘fog’ at the time that he entered the plea, despite the fact that the applicant had seen a forensic psychiatrist, Dr Lester Walton.
(6) The judge had the material benefit of seeing the applicant give evidence under cross-examination and concluded that the applicant was an unimpressive witness. We have read the transcript of the applicant’s cross-examination and it is entirely consistent with the trial judge’s evaluation of his evidence. The applicant’s answers to questions asked of him were evasive, unresponsive, argumentative and replete with persecutory embellishment.
(7) The evidence as a whole favoured the overwhelming conclusion that the course adopted was, as the judge found, the product of a considered strategy involving admission of guilt in an effort to keep the matter within the Magistrates’ Court jurisdiction.
There was nothing glaringly improbable or contrary to overwhelming inferences in the conclusion that the judge reached as to the applicant’s credibility. Rather, it accorded squarely with the weight of the evidence overall. It follows that the applicant failed to establish the evidentiary basis of his application, namely that his plea was not a true admission of guilt.
Furthermore, the judge found (as he was entitled to do) that he did not accept that the admission of evidence of the plea would derail and dominate the trial.
The matters on which the applicant relied were all well capable of being understood by a jury and the significance of the implied admission constituted by the plea of guilty was susceptible of appropriate treatment by way of conventional directions by the judge to the jury concerning admissions. On the trial, of course, the onus will be on the prosecution to satisfy the jury that the admission was true.
Furthermore, we are not persuaded that the judge should have concluded that the prejudicial effect of the evidence in the relevant sense (if any) would outweigh its probative effect. Sections 135 and 137 of the Evidence Act did not require the exclusion of the evidence. Nor was there any sensible basis to conclude that the evidence should be excluded pursuant to s 90 on the basis that it was unfairly obtained.
For completeness, we note that, in his proposed notice of application for review of refusal by a judge to certify, the applicant raises a series of specific grounds.
First, it is asserted that the admission of evidence of the plea was unreasonable or plainly unjust. This ground must fail. The evidence was probative of guilt and the applicant failed to successfully impugn it.
Secondly, it is said that the judge’s reasons are inadequate. In fact, they are clear and comprehensive.
Thirdly, it is said that the judge took into account extraneous matters. A fair reading of his Honour’s reasons fails to demonstrate this.
Fourthly, it is said that the judge gave undue weight to the view that he had formed of the applicant’s credibility. The judge was required to assess the credibility and reliability of the applicant’s evidence in order to determine whether the applicant had satisfied the onus of establishing an evidentiary basis for his application.
Fifthly, it is said that the judge failed to take into account the applicant’s evidence. It is plain from his substantive ruling that the judge in fact carefully considered, but was unpersuaded by, the applicant’s evidence.
Sixthly, it is asserted that his Honour’s substantive ruling was attended by sufficient doubt to warrant certification. For the reasons that we have explained, this contention is hopeless.
Seventhly, it is asserted that his Honour erred in rejecting criticisms that the applicant made of his substantive ruling. No arguable error of substance has been identified in his Honour’s reasoning or conclusion.
It follows that, if the applicant is confined to the grounds raised by his written case, the application for extension of time should be refused.
On the hearing of the application, however, counsel recently briefed in the matter took a fresh point which was neither argued before the trial judge, nor the subject of the proposed grounds of appeal, nor the subject of a written case. Counsel’s new argument was that the summary of the hand-up brief (in response to which the applicant had entered his plea of guilty) related to property damage forming the basis of two only of the six charges on the indictment which he now faces.
Accordingly, it was submitted that the evidence should not have been admitted as relevant to all six charges. In turn, it was submitted that if the evidence were admitted with respect to two charges only then would it be unfairly prejudicial with respect to the remaining four, particularly because of the risk of propensity reasoning by the jury that could not be overcome by directions from the trial judge
The factual premise of this argument was contested by the Crown. It was submitted that the hand-up brief material in fact described all the damage in issue by way of photographs, a statement from one of the owners, an engineer’s report and a quantity surveyor’s report.
We note in passing that the applicant gave no evidence on the voir dire that he believed at the time of the plea that the plea related to the damage which now forms the basis of only two charges. Given that he now admits that he caused the damage, and must be taken to be familiar with what it constituted, this was a somewhat extraordinary omission if in fact the contention now advanced is true.
In our view, this issue cannot be ventilated in the current application. It has not been the subject of proper argument before the trial judge. It is not the subject of a properly formulated application before us.
It could not justify the grant of an extension of time for the present application.
For the above reasons, time should not be extended under s 313 of the Criminal Procedure Act to review the refusal of the trial judge to certify pursuant to s 295(3) of the Criminal Procedure Act.
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