David Llewelyn Hicks v The Queen
[2018] VSCA 9
•2 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0235
| DAVID LLEWELYN HICKS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 2 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 9 |
| JUDGMENT APPEALED FROM: | DPP v Hicks (Unreported, County Court of Victoria, Judge Lewitan, 24 November 2015 (Conviction)) |
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CRIMINAL LAW — Appeal — Conviction —Application for extension of time to appeal against conviction — Applicant convicted at trial of five charges of obtaining a financial advantage by deception — Applicant previously succeeded in appeal against sentence —Whether applicant unfit to be tried — Whether the merits of the proposed appeal warrant extension — Explanation for delay unsatisfactory — Proposed grounds of appeal lacking merit — Application for extension of time refused — Criminal Procedure Act 2009, s 313 — Madafferi v The Queen [2017] VSCA 302.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | No appearances |
| For the Respondent | No appearances | No appearances |
PRIEST JA
BEACH JA
NIALL JA:
An application for extension of time
On 24 November 2015, a jury in the County Court found the applicant guilty of five charges of obtaining a financial advantage by deception.[1]
[1]Crimes Act 1958, s 82.
Following a plea, on 11 December 2015 the trial judge sentenced the applicant to a total effective sentence of six years’ imprisonment, with a non-parole period of four years.
When represented by counsel and solicitors very experienced in the criminal law, the applicant successfully appealed against that sentence; so that, on 13 July 2016, this Court re-sentenced the applicant to a total effective sentence of four years and six months’ imprisonment, with a non-parole period of two years and six months.[2]
[2]Hicks v The Queen [2016] VSCA 162 (Weinberg and Priest JJA).
More than a year after his success in this Court with respect to sentence, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal against conviction,[3] dated 5 October 2017. That application, apparently prepared by the applicant without the assistance of a legal practitioner, contains three grounds:
[3]See Criminal Procedure Act 2009, s 313.
GROUND 1.
The applicant was medically unfit to manage and instruct an appeal against conviction [sic] until August 2016.
Full recovery from five-vessel open-heart by-pass surgery was not confirmed until August 2016 by Bendigo Hospital.
GROUND 2.
The applicant was blocked from lodging an appeal against conviction by his solicitor Steven Pica until July 2017.
Despite continuous communication from the applicant from August 2016 until June 2017, and payment of significant legal fees, Pica advised the applicant that he was now too late to appeal.
GROUND 3.
The applicant has prepared his own appeal against conviction since July 2017, all delays being directly attributable to a lack of resources at Loddon prison and the inadequate mail system provided by Corrections Victoria.
In support of the application, the applicant filed an affidavit, sworn by him on 6 November 2017, in which it is said:
On 13 July 2016 the applicant appealed successfully against sentence. … The appeal against sentence had been instructed and funded by the appellant’s friend Horace Lim because the applicant was not cognisant of the proposed legal action taking place while he continued post-operative recovery from major heart by-pass surgery in June 2015, exasperated [sic] by two further heart attacks after confinement to prison.
The affidavit also asserts the following:
1.Royal Melbourne Hospital prescribed significant medication for daily use and a regime of restricted exercises. The applicant was advised by the hospital that fill [sic] recovery normally took twelve months until full recovery would be achieved.
On his return home the applicant underwent medical supervision by his regular medical adviser Dr. Mohsin, Coburg, Victoria.
In September 2015 Dr. Mohsin wrote to the County Court, copy to Pica Criminal Lawyers, that I would not be fit for trial in November 2015.
That letter was not acceptable to delay trial until the applicant was fully recovered and fit to stand trial. Trial at County Court in November 2015 proceeded.
The applicant was unable to give evidence to defend himself.
2.Following trial and sentence the applicant was sent initially to Melbourne Assessment Prison then to Loddon Prison.
The combined effects of the applicant being in prison and being moved about, the impending shut-down of the courts for Christmas vacation and the difficulty of instructing and paying lawyers within the proscribed period [sic].
3.Following the Christmas vacation, the applicant’s friend instructed and paid for an appeal against sentence.
4.In February 2016 the applicant suffered a third heart attack, whilst in Loddon Prison. The prison records show that an ambulance transported the applicant to Bendigo Hospital for emergency treatment.
5.In April 2016 the applicant suffered a fourth heart attack, again requiring urgent ambulance transport to Bendigo Hospital for emergency treatment.
6.In July 2016 the applicant’s appeal against sentence was heard before the Victorian Appeal Court and was successful. Effective sentence was reduced from six years imprisonment with a non-parole period of four years to four years and six months imprisonment with a non-parole period of two years and six months.
7.In August 2016 the applicant was stress-tested at Bendigo Hospital and finally cleared as fully recovered from the open-heart surgery and associated hospitalisation of June 2015.
8.Following the applicant’s full medical recovery, he immediately wrote to Pica Criminal Lawyers instructing that an appeal against conviction be commenced.
In various telephone discussions Mr Steve Pica made it clear that he was against an appeal against conviction.
It was not until the applicant read a note from counsel Theo Kassimatis wherein he referred to Peter Kilduff’s plea which was totally against the applicant’s instructions [sic].
Correspondence regarding the proposed appeal continued right through to June 2017 when Pica finally advised that it was now too late to appeal and that if the applicant wished to proceed he should engage a new lawyer.
The applicant wrote to the Victorian appeal court for information regarding an appeal against conviction.
The Registrar of the Court of Appeal replied to the applicant on 22 August 2017 with the required information.
9.Since that date the applicant has spent all available time compiling the information required for an appeal.
10.The applicant submits that the extended delay in appealing against conviction was not his fault but a result of circumstances beyond his control.
11.The applicant has filed a formal complaint against Mr Pica for his actions, both at trial and in his response to my instruction to appeal against conviction.
12.The applicant ceased communicating with Pica in June 2017 when it became apparent that Pica was blocking every attempt by the applicant to launch an appeal against conviction.
13.It has taken the applicant from July up to date to prepare the required documents for an appeal against conviction. Being in prison has made the task for the applicant, a non-lawyer, to prepare an appeal particularly difficult because of the lack of resources in prison.
Proposed grounds of appeal
In support of the putative application for leave to appeal against conviction, the applicant advanced seven grounds, none of which, in our view, has substance. The grounds are:
Ground 1.
The verdict of guilty was unsafe and unsatisfactory because it was not supported by the evidence.
The prosecution failed to meet the established legal criteria required to justify a guilty verdict against an accused person.
Ground 2.
There was no deception committed by the applicant.
Based on the FMTG application forms freely signed by the complainants, the applicant had a genuine belief that he was not doing something that would breach the criminal or civil law.
Ground 3.
The applicant treated the investors fairly by disclosing risk.
The risk was clearly disclosed in each of the five application forms freely signed by the complainants.
Ground 4.
The applicant did not receive a fair trial because of flagrant incompetence and negligence of defence counsel.
Ground 5.
The long delay in charging the applicant and a further long delay to trial, none of which could be attributed to the applicant, delayed the applicant’s opportunity to cross-examine witnesses while memories were fresh.
Ground 6.
An order for restitution was made in favour of the victims against the applicant when no evidence was presented at trial that demonstrated personal benefit to the applicant.
Ground 7.
The prosecutor breached her duty under the Model Litigant Guidelines in that she agreed for the trial to proceed in the face of medical evidence that the applicant was medically unfit to stand trial.
In particular, she breached her duty to maintain a standard of fair play in the interests of justice.
The prosecutor was a party to unfair play against the applicant and, as a result, the applicant did not receive a fair trial.
Relevant principles
The law relating to the grant or refusal of extension of time was recently summarised by this Court in Madafferi:[4]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[5] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[6] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[7] the length of the delay — and the reasons for it[8] — and the prospects of success should the extension be granted,[9] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[10] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[11] The discretion must, as we have said, be exercised according to the individual facts of each case.[12]
[4]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (‘Madafferi’).
[5]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[6]Ibid, 707 [60].
[7]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[8]Ibid, 614 [31].
[9]Ibid, 614 [33]. See also Rapovski v The Queen [2017] VSCA 175 [25] (Priest JA).
[10]Jopar (2013) 44 VR 695, 707 [60].
[11]Ibid.
[12]Ibid.
The reasons for delay
In our view, the reasons put forward by the applicant for the failure to file a timely application to challenge his convictions are poor.
The applicant’s application for an extension of time appears to be founded on two propositions: first, he claims that he was medically unfit to manage and instruct in an appeal against conviction until August 2016; and, secondly, he asserts that he was ‘blocked’ from lodging an appeal against conviction by his solicitor Steven Pica until July 2017.
Beyond asserting in his affidavit that post-trial he suffered heart attacks in February and April 2016, and that in August 2016 he ‘was stress-tested at Bendigo Hospital and finally cleared as fully recovered from the open-heart surgery and associated hospitalisation of June 2015’, there is nothing to indicate that the applicant was incapable of providing instructions with respect to an appeal against conviction. Indeed, a notice of application for leave to appeal against sentence — founding the successful appeal in July 2016 — was filed shortly after the applicant’s conviction and sentence, against the background that, when the trial proceeded in November 2015,[13] there was no suggestion that the applicant was unfit to be tried.[14] As to that, at a mention shortly prior to trial, on 15 October 2015, the applicant’s counsel informed the judge that he had a report indicating that his client was ‘capable’, and had the ‘capacity to sit through a trial‘; and, on the first day of the applicant’s trial, counsel said that although his ‘client has had some health issues going through up to the trial’, his client simply sought ‘that about every hour or so he gets five minutes just to get up and walk around just to assist his blood circulation’.
[13]A jury was empanelled on 16 November 2015, and returned verdicts on 24 November 2015.
[14]See Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 6.
Furthermore, the applicant’s appeal against sentence in July 2016 was conducted by the solicitor who had represented him at trial, and by counsel accomplished in the conduct of criminal appeals. Both are highly competent and very experienced practitioners of the criminal law. There is nothing from either of those practitioners which raises any question as to the applicant’s fitness to provide the necessary instructions and maintain an appeal against conviction.
With respect to the suggestion that ‘it became apparent that Pica was blocking every attempt by the applicant to launch an appeal against conviction’, other than the applicant’s bald assertion, there is nothing in the material to support it. We reject it. On the material it seems to us to be likely that, rather than being ‘blocked from lodging an appeal against conviction by his solicitor Steven Pica‘, the applicant was the recipient of advice that is unpalatable to him. In any event, the applicant, who bears an onus of persuasion, has failed to persuade us that he was, as he claims, relevantly ‘blocked’.
The prosecution case
In order to make a judgment on the mooted grounds of appeal, it is necessary to understand the case against the applicant at trial.
To that end, a convenient summary of the prosecution case may be found in this Court’s judgment on the sentence appeal:[15]
[15]Hicks v The Queen [2016] VSCA 162, [6]–[17] (Priest JA).
6 The five charges of obtaining a financial advantage by deception, which involved the total sum of $595,000, arose from the following conduct.
7 On 30 May 2006 the appellant registered a business name, Financial Markets Trading Group. The next day, the appellant opened a Commonwealth Bank (‘CBA’) account in the name of David Hicks, trading as Financial Markets Trading Group (‘FMTG’).
8 In early 2008, the appellant was introduced to Mr Gordon Matthews as a banker. The appellant also sought advice from Mr Peter Bellomo, a financial services compliance advisor, about setting up a foreign exchange business. Mr Bellomo created a template ‘due diligence’ questionnaire as a basis for what would ultimately be required if the venture proceeded. The appellant and Mr Matthews met a number of times from July to August 2008, and discussed creating an investment scheme to generate income. Via email, Mr Matthews received several documents from the appellant, including an application form that the appellant had created for FMTG and a due diligence questionnaire for Tuscan Capital Secured Fund which listed Ernst and Young as auditors.
9 The appellant told Mr Matthews that the minimum sum to become involved in the investment scheme was $50,000. Mr Matthews did not have sufficient funds to invest, but he mentioned the investment scheme to several people, including the victims. He then passed on the FMTG application form and the due diligence questionnaire for Tuscan Capital Secured Fund, provided to him by the appellant, to the victims.
10 At trial, the prosecution alleged that the appellant obtained a financial advantage from each of the victims by falsely representing to each of them that:
(a)the due diligence questionnaire in the name of Tuscan Capital Secured Fund was a genuine and valid document;
(b)FMTG was a genuine licensed entity;
(c)the funds advanced would be invested as to 90 per cent in Australian bank securities;
(d)the balance of 10 per cent would be invested in long and short derivative instruments with protected margins; and
(e)the investment money would be placed in true and genuine investments.
It was also alleged that the appellant made an additional false representation to victims Trevene Mattox and Neena Scott that the return would be 30 per cent per annum of invested money.
11 Given their verdicts, the jury must have been satisfied beyond reasonable doubt that the appellant made at least one of the alleged false representations to each of the victims; that he knew that that representation was false; that he intended the representation to be acted upon; and that he obtained a financial advantage as a result of making the representation.
12 The victim on charges 1 and 2 was Rochelle England, and involved a total of $195,000. With respect to charge 1, on 14 September 2008, Ms England signed an FMTG application form to invest $150,000 with the appellant. She then electronically transferred this amount from her bank account into the appellant’s account. The money was deposited into the appellant’s CBA account on 16 September 2008. Between the time the $150,000 was deposited on 16 September, and 9 October 2008, the appellant made 37 separate withdrawals from the account. Following those withdrawals, the appellant’s account was $367.99 in debt.
13 So far as charge 2 is concerned, on 9 October 2008, Ms England signed a second FMTG application form to invest a further $45,000 with the appellant. She then electronically transferred this money from her account into the appellant’s CBA account. The $45,000 was deposited on 10 October 2008. Between the time the $45,000 was deposited, and 17 October 2008, the appellant made 11 separate withdrawals from the account. Following those withdrawals, the appellant’s account was $4,932.01 in credit.
14 Charges 3 and 5 related to Trevene Mattox, and involved a total sum of $300,000. As to charge 3, on 10 October 2008, Ms Mattox signed an FMTG application form to invest $50,000 with the appellant. She then electronically transferred this sum from her bank account into the appellant’s CBA account, that sum being deposited on 20 October 2008. Between 20 and 24 October 2008, the appellant made 14 withdrawals from his account. Following those withdrawals, the appellant’s account was left $2,492.01 in credit.
15 With respect to charge 5, on 27 November 2008, Ms Mattox signed two additional FMTG application forms to invest a further $250,000 with the appellant. She then electronically transferred this money from her bank account into the appellant’s CBA account. The $250,000 was deposited into the appellant’s account on 28 November 2008. At the time that the funds were deposited, the appellant’s account was $214.87 in debit. On the following day, the appellant made eight withdrawals from this account. Following the withdrawals, the appellant’s bank account was $118,097.13 in credit. Between 28 November 2008 and 22 December 2008, he made a further 25 withdrawals, which took the account from $118,097.13 in credit to $494.62 in debit.
16 Charge 4 related to the victim Neena Scott. On 5 November 2008, Ms Scott signed an FMTG application form to invest $100,000 with the appellant. She then electronically transferred this money from her account into the appellant’s account. Between 5 and 27 November 2008, the appellant made 35 different withdrawals from his account, leaving the account $214.87 in debit.
17 As I have said, the three victims transferred in total the sum of $595,000 into the appellant’s account. None of the money deposited has been recovered.
Proposed grounds of appeal
Not only are the applicant’s reasons for delay poor, but, as we have indicated, the proposed grounds of appeal all lack substance. Indeed, they strike us as being hopeless.
The applicant’s submissions on the first proposed ground — which claims that the verdict is unsafe and unsatisfactory — seems to proceed on the central propositions that the ‘three complainants were friends acting in concert’ to concoct a ‘story’, and embarrassment had caused Gordon Matthews to ‘modify’ his evidence. In our view, however, it was open to the jury to be satisfied beyond reasonable doubt that the applicant had promoted a bogus investment scheme to Mr Matthews, who in turn ingenuously introduced the three innocent victims to it, and thereby convict the applicant.
In support of ground 2, the written case asserts: ‘There was no deception committed by the applicant’. There then follow a number of statements that, so it seems to us, do not support that blunt assertion. In any event, there was ample evidence in the trial to justify a finding that the applicant had indeed been guilty of deception.
The third ground claims that the applicant ‘treated the investors fairly by disclosing risk’. In our view, however, the evidence justifies the conclusion that the present case was not one where a risk was fairly disclosed to investors who subsequently lost their money. Rather, the evidence justifies the conclusion that the applicant at no time intended to conduct a genuine investment scheme for investors, but used a bogus scheme as a device to misappropriate the invested monies.
Ground 4 claims that the applicant ‘did not receive a fair trial because of flagrant incompetence and negligence of defence counsel’. To a large extent, what was put under cover of this ground amounted to unsupported and unsubstantiated assertion which, on its face, cannot be accepted. In those circumstances, the ground cannot be given credence.
Insofar as proposed ground 5 asserts that delay impeded ‘the applicant’s opportunity to cross-examine witnesses while memories were fresh’, it lacks merit. In answer to this ground it is enough to say that the delay in the present case could not properly be said to be of such an order as to unacceptably compromise the fairness of the applicant’s trial. It is to be noted in that regard that the applicant’s counsel sought a forensic disadvantage direction based on delay be given to the jury, and that such a direction was given.
Assuming for the sake of argument (without adjudication) that an order for restitution could properly be the subject of an appeal against conviction, in our view it was well-open to the judge in the circumstances to make the compensation orders that she did. Proposed ground 6 has no merit whatsoever.
Finally, ground 7, which attacks the conduct of the prosecutor, is wholly devoid of worth. There was nothing properly to suggest that the applicant was unfit to stand trial.
Conclusion
Given that the reasons advanced for the delay in seeking to agitate an appeal against conviction are poor, and the proposed grounds of appeal lack substance, the application for extension of time must be refused.
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