Director of Public Prosecutions v Voitin (Ruling No 1)
[2025] VCC 1383
•14 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-22-01365
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN VOITIN |
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JUDGE: | HIS HONOUR JUDGE MEREDITH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 April 2025 |
DATE OF RULING: | 14 April 2025 |
CASE MAY BE CITED AS: | DPP v Voitin (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1383 |
REASONS FOR RULING
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Subject: Change of Plea Application – refused.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors | |||
| For the Director of Public Prosecutions | Mr N. Robinson KC with | CDPP | |||
For the Accused | Mr B. McNab | Diamonds Solicitors | |||
HIS HONOUR:
1By way of background:
2Mr Voitin was originally facing trial with his wife, Clare Voitin, and a work colleague, “PS” on a variety of charges.
3Mr Voitin at that time faced a total of six charges. He was jointly charged with PS on five of these, which included one charge where Mr Voitin, his wife and PS were charged, and he faced one charge on his own. I shall have more to say regarding the case against him and the charges that he faced at that stage shortly.
4In the lead up to, and as at the time Mr Voitin’s matter resolved, he had undertaken a number of preliminary cross-examinations of prosecution witnesses, and argument had been undertaken regarding admissibility of evidence and severance, with Mr Voitin seeking a separate trial from PS on Charges 1 – 5, amongst other issues.
5As part of the pre-trial matters cross-examination had taken place of the two principal prosecution witnesses, Ondarchie and Dage, as well as other witnesses.
6The prosecution case, as at the time Mr Voitin’s matter resolved, was outlined in a summary of prosecution opening dated 14 July 2023. Regard ought be had to this document. A brief outline of this will suffice for these reasons.
7By way of background, John Voitin is a founding partner of Voitin Lawyers, a law firm in Melbourne, and PS was an employee solicitor and/or a partner at the firm during the operative time.
8Voitin Lawyers practised in bankruptcy and insolvency.
9Clare Voitin is the wife of John Voitin.
10In broad compass, the charges related to a scheme[1] to manipulate the bankruptcy and insolvency system on behalf of Voitin Lawyers’ clients. The scheme involved the use of companies controlled by one of the accused[2] to create fictitious debts for clients with the objective of obtaining a more favourable outcome in the bankruptcy and insolvency process of the relevant client and also for Voitin Lawyers. It was alleged the scheme required, on occasion, proceedings to be initiated which were based on false and backdated documentation. These were said to be intended to be used to substantiate the fictitious debts created, by making them appear more legitimate to interested third parties.
[1] See Summary Prosecution Opening of 14 July 2023
[2] Clare Voitin being the sole director and shareholder of Mandamus, and John Voitin sole director and shareholder of Avanour
11Companies controlled by an accused were nominated as creditors in forms lodged and correspondence relating to the bankruptcy or insolvency process. False creditor claims were substantiated in addition to proceedings seeking judgments for the fictitious debt in various ways, including the use of false invoices and backdated contracts for the purchase of items and so forth.
12The purpose of these activities was said to be to satisfy the relevant bankruptcy or insolvency trustee that the false debt was in fact legitimate.
13In the case of Charges 1and 2 and 4 and 5, this was said to have the effect of facilitating the return of funds through the false creditor to the law firm, in the case of Charges 2 and 5, and the debtor, in the case of Charges 1 and 4, and accordingly less being paid to genuine creditors and the evasion of genuine debts, by the debtor.
14Charge 3 concerned the institution of debt recovery proceedings in the Supreme Court for the sham debt, which lies at the heart of Charges 1,2,4, and 5, a debt said to be owed to Mandamus Commodities Ltd.
15In the case of Charge 6, an attempted deception, the false creditor was used to substantiate a debt and allow the placing of a caveat over the residence of the debtor, however, ultimately concerns were raised as to the legitimacy of the creditor.
16The prosecution contended that this scheme was a business practice of Voitin Lawyers implemented with respect to each of the charged offences.
17Prior to Mr Voitin’s matter resolving his then co-accused PS had also undertaken cross-examination of witnesses and it was plain that the seeds were being sown for a potential cutthroat defence to have been run, whereby blame was to be attributed to Mr Voitin for various offending conduct.
18Submissions filed on behalf of PS also made it clear that this was a likely manner in which a joint trial of both would be conducted. In that scenario it was likely that as part of Mr Voitin’s defence he may have contended that PS bore responsibility for the offending which they were jointly charged with, and PS would respond that it was Voitin.
19For example, in submissions filed on behalf of Mr Voitin, his then counsel amongst other things stated[3]:
[18] The Court would readily appreciate that at trial the accused may be forced to run a ‘cutthroat’ defence. Mr Voitin would argue that he was unaware of and did not endorse the actions of Mr PS or Ashley Joseph, who operated a consultancy business called Black Oak Consulting Pty Ltd. PS would argue that he acted on the instructions of Mr Voitin and did so without dishonesty.
[19] Were the accused to be tried together, under the banner of other misconduct evidence, PS's legal representatives would likely elicit a substantial body of incriminatory evidence over and above that sought to be led by the prosecution. The representatives of PS already have access to evidence which would enable them to launch such an attack upon Mr Voitin. It is contained within the preliminary brief and depositions, which contains allegations that
Mr Voitin acted in a similarly dishonest fashion with respect to other clients such as Greg and Gail Williamson. S.P's representatives would require the prosecution to call Ashley Joseph and adduce through him evidence which would tend to incriminate Mr Voitin. Furthermore, PS’s representatives would no doubt be aware of Mr Voitin’s other legal issues, such various civil claims and other charges laid against him following separate police investigations, one of which is still pending before the Magistrates Court.
[20] If Mr Voitin is tried together with PS there will be two prosecuting teams at the Bar table.
The Commonwealth Director of Public Prosecutions is one. The second will be PS’s legal representatives, who unlike the Crown have no obligation to disclose the evidence they intend to adduce. In order to robustly defend their client, PS’s representatives will lead evidence which constitutes bad character against Mr Voitin.
[3] See “outline of legal argument” document, received on or about 14 October
20Further, when the separate trial application and related matters were being discussed in open court in the presence of Mr Voitin, on 28 October 2024[4], his counsel referenced this. Variously Mr Voitin’s counsel, in the presence of
Mr Voitin, referenced depositional material which she was concerned would be led by PS to the detriment of Mr Voitin. She cited mattes such as the “Rulo” matter, the “Williamsons” matter, evidence of a Mr Ashley Joseph, as well as referencing more generally.[p45]“…reading my learned friend’s submissions on behalf of PS, I think they’ve been fairly plain, where they need not have been, but that’s the direction that they will inevitably go. And also, it’s not speculative in the sense of, we at least, everyone at this Bar table, have the same brief, we have the same disclosure materials. So we know that evidence is readily available to be adduced in the context of a joint trial. So here, that’s why we say we need to be split in (indistinct) any evidence that is relevant to PS can be led for his purposes, but Mr Voitin is not suffering the significant prejudice of bad character, tendency, other misconduct, even it might be said evidence that is led on behalf of PS that he, Mr Voitin, had a business practice.
So there are multiple headings of evidence that ultimately would be led in that joint trial."
[4] See Transcript of 28 October 2024, generally and in particular at p52.
21Mr Voitin's wife Clare Voitin also sought to negotiate a resolution of her matter. Ultimately the prosecution have discontinued the prosecution against her.
22Mr Voitin’s matter duly resolved, to a negotiated resolution of the charges which he faced.
23On 7 December 2024[5] or thereabouts, Mr Voitin was arraigned and pleaded guilty to a plea indictment containing only three charges, Charges 1 and 2 of obtaining property by deception for another, namely Voitin Lawyers, and one charge of attempting to pervert the course of justice, Charge 3. Mr Voitin now applies to change his plea of guilty to one of not guilty on the two deception charges and seeks leave to enable this to occur. He does not make application to change his plea on Charge 3 of attempting to pervert the course of justice.
[5] This date is incorrect, the arraignment took place on 7 November 2024.
24Shortly prior to jury empanelment in the trial of PS, some three odd months after Mr Voitin’s matter had resolved, the prosecution against PS was discontinued.
25In summary prior to the resolution of Mr Voitin’s matter, what were then Charges 1, 2, and 4 and 5 jointly charged each of John Voitin and PS with obtaining a financial advantage by deception, for another, either Voitin Lawyers or for the debtor in question, either Ondarchie or Dage. Charge 3 of perverting the course of justice jointly charged all of the accused, and was concerned with instituting legal proceedings for a non-existent debt, to substantiate the fictitious debt, the subject of Charges 1,2, 4 and 5. Charge 6 charged Mr Voitin alone with an attempt to obtain a financial advantage for another, a client of Voitin Lawyers.
26As a result of the negotiated plea only two charges of obtaining a financial advantage, for another, namely Voitin Lawyers, and a charge of attempting to pervert the course of justice are being maintained, out of what was on the trial indictment a total of six charges that Mr Voitin faced.
27After Mr Voitin’s matter resolved, PS’s matter had been listed to commence as a trial before me in the early stages of this year. Shortly prior to empanelment a notice of discontinuance was filed in regard to all charges which PS faced.
28Mr Voitin deposed in his evidence before me that it was upon learning of the discontinuance having been filed that he first raised changing his plea to one of not guilty on Charges 1 and 2.
29In Middap v R [1989] 43 A Crim R 362, which was a case concerning a change of plea application, at p364, the Court said:
“The only test which is to be applied is whether a miscarriage of justice in the view of the judge would occur if the leave sought were denied the applicant. Each case must be examined on its own particular facts and merits and there is no question but that the judge has a discretion. Indeed, perhaps, a wide discretion to exercise in relation to the matter which must be exercised judicially and having regard to the test.”
30Whilst not determinative the cases recite a number of categories of case wherein an application will be granted, with the onus of establishing this resting on the applicant. Whilst the categories of cases are not proscriptive, they include:
·A miscarriage of justice in that the applicant could not in law have been convicted of the offences,
·The applicant did not appreciate the nature of the charge to which the plea of guilty was entered,
·The applicant did not intend to admit he was guilty of it, and
·The applicant’s plea was not free and voluntary
31Here, aside from an argument that Voitin could not in law be convicted of Charges 1 and 2, none of these other categories are relied upon.
32Mr Voitin gave evidence before me in addition to an affidavit which had been filed on his behalf. Having had the benefit of seeing and hearing Mr Voitin, so far as his evidence on this application is concerned, I was unimpressed with him as a witness. His evidence was at times contradictory, he appeared to me at times to prevaricate, and at times I found his evidence simply implausible.
33Mr Voitin argues that he ought be granted leave to withdraw his guilty plea and change it to one of not guilty, stating in his affidavit, in summary, that this is because:
“…notwithstanding my guilty pleas I consider that I am innocent of the charges."
34And
"At the time of my guilty plea I relied on the representations that the prosecution would continue its prosecution of PS on the same charges."
"A Zoom conference was held between me, my solicitor… and my barrister…on the 29th day of October 2024. During this conference, it was explained to me that the Prosecution would not consider withdrawing the charge of perverting the course of justice. I instructed my solicitors to negotiate an 'attempt' as an alternate charge as I believed that I had a defence to the original charge."
"In that conference, I indicated that I was unhappy to plead to the two charges of obtaining financial advantage by deception. However, I was told that the Prosecution would not, under any circumstances, withdraw those charges, because the Prosecution was intent on prosecuting PS and that my participation in the alleged offending was necessary for that purpose.
"I was also advised that under all of the circumstances, I should accept 'the deal'. I reluctantly agreed only on the basis that I understood that the Prosecution would be proceeding against PS, the person named with me in the two charges."
"But for my mistaken belief that the prosecution would pursue the two charges against PS I would not have entered guilty pleas to the two charges. The representation by the Prosecution that the Prosecution would proceed with the two charges against PS has turned out to be false and I consider that it was made recklessly."
35From the recitation of the above it is clear that at the time Mr Voitin’s matter resolved he was facing a joint trial of the majority of the counts with PS.
36PS had foreshadowed that a cutthroat defence would be run by him.
37Counsel for Mr Voitin acknowledged this as a realistic outcome of a joint trial and expressed the view that PS would seek to “elicit a substantial body of incriminatory evidence over and above that sought to be led by the prosecution”.
38Having been involved in this case for some time now, this accords with my own understanding of material that arises from the depositions. What material aside from this that may have been available I am not aware, however, at various times it was alluded to that there was further material available that could be sought to be introduced.
39From my observations Mr Voitin was competently, diligently, and well represented by his experienced counsel.
40It is to be remembered also that Mr Voitin had been admitted to practice in 1990 and was a senior practitioner with many years of experience in the practice of the law.
41I find that Mr Voitin was aware of and concerned that PS would on a joint trial seek to introduce material that was harmful to his successful defence of the charges and having read aspects of the depositional material, such as the statements of Ashley Joseph, Mr and Mrs Williamson and their son, I find that this was realistically a likely outcome from a joint trial.
42Thus not only did Mr Voitin’s resolution of his matter lead to a substantial reduction in the charges which he faced, it also avoided any reliance in open court on material that had the potential to be highly damaging to him. By resolving his matter Mr Voitin clearly received a benefit in the form of a reduced number of charges and avoided a joint trial where material detrimental to his interests may have been introduced by his then co offender PS.
43As to Mr Voitin’s assertion that “notwithstanding my guilty pleas I consider that I am innocent of the charges”, this was developed in evidence, as in summary an assertion that Mr Voitin was at a low ebb and simply wanted to resolve his case, as expeditiously as possible, irrespective of him holding a belief in his innocence, and further it was submitted that he could not in law have been convicted of Charges 1 and 2.
44I place no weight on Mr Voitin’s evidence that he believes himself an innocent man. His evidence in this regard is in my view simply self-serving.
45Whilst he may have wished this prosecution to reach finality, it is not submitted, nor could it be on the evidence before me, that Mr Voitin did not apprehend what he was pleading guilty to, nor is it argued that he was under duress, confusion, or any state that would render his guilty plea involuntarily given.
46The case which Mr Voitin faced could not be described as weak.
47Just dealing briefly with the further and allied submission made that Mr Voitin could not in law have been convicted of Charges 1 and 2 as there was no evidence of his having obtained a benefit, I reject this.
48Mr Voitin appears to seek to elevate what may have been a potential contestable issue before a jury into a submission that he could not at law have been found guilty of Charges 1 and 2, because the funds were paid into the trust account of another, Nixon, who then paid them into the Voitin trust account and Mr Voitin asserts that PS ultimately authorised the withdrawal of the funds from the Voitin trust account. Given that at the time of the resolution of Mr Voitin’s matter it was put that PS and Voitin were jointly acting together, and that Nixon was an innocent agent. This rises no further than a contestable fact.
49In any trial there will almost invariably be some contestable facts. This is different to a legal impediment preventing conviction.
50The fact that subsequent to Mr Voitin’s matter resolving the prosecution discontinued against PS, an alleged joint offender, does not prevent Mr Voitin being convicted of Charges 1 and 2 on a trial as a joint participant, and nor does it in the circumstances here constitute a miscarriage of justice. The prosecution maintain the case against Mr Voitin on the plea as one of joint liability with PS, which was I understand it, what was agreed at the time
Mr Voitin entered his guilty pleas, with Mr Voitin in fact making submissions regarding the wording of the charges he pleaded that he pleaded guilty to.[6][6] See for example Dawson J, in King v The Queen[[1986] HCA 59; (1986) 161 CLR 423., generally Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316, in particular 323–5 [14]–[17] (Gaudron and Gummow JJ), 350 [93] (McHugh J), generally Likiardopoulos [2012] HCA 37; ( 2012) 347 CLR 265, in particular per French CJ at 269 [2 – 3], (Gummow, Hayne, Crennan, Kiefel, and Bell JJ) 273 [ 19], 279 [35]
51In short I reject the argument that an element of the offence would not have been able to have been proven, given the way in which the prosecution were putting their case.
52I do not actually have to resolve that, however to hold Mr Voitin to his plea, for authority provides that an accused may enter a plea of guilty and be bound by it, if it is freely and voluntarily given in the hope of advantage.
53In any event, consistently with authority, notwithstanding that I do reject his assertion of innocence on Charges 1 and 2, as I have said, an accused may be held to a guilty plea which has been entered in the hope of an improved forensic outcome.
54In his sworn evidence before me Mr Voitin repeatedly stated words to the effect that he wanted this prosecution of him resolved, saying he wanted to bring this matter to a final conclusion and then providing a number of reasons why he wished to end the matter and have it reach finality.
55Notwithstanding that I reject this, as for one, being contradictory to now wishing to embark on a trial process that would further extend the life of these proceedings, and two, inherently implausible, that he would submit himself to punishment by the court, as a then practitioner having attempted to pervert the course of justice and engaged in seriously fraudulent conduct.
56This can in any event readily be dealt with by recourse to what was said in Meisner v The Queen and the cases which have applied it. Meissner concerned a conviction for perverting the course of justice, it did not involve an application to change a guilty plea, rather it concerned the circumstances in which the act of inducing a plea of guilty could be viewed as an attempt to pervert the course of justice. As such what follows may be obiter, however it is considered obiter by the High Court, and has been referred to with approval and applied on many occasions.
57In Meisner, Dawson J explained that an accused may be motivated (to enter a guilty plea):
"…for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty."
58His Honour continued:
"The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud."
59The following observations from the judgment of Brennan, Toohey and McHugh JJ have general application to cases where the facts alleged would suffice at law to sustain a conviction on the relevant charge:
"A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence."
60I find that the discontinuance of the prosecution against PS did away with the potential for a joint trial where a cutthroat defence, introducing highly damaging material against Mr Voitin would potentially have occurred. Later regret at a forensic decision consciously and voluntarily arrived at which results in a guilty plea does not amount to a miscarriage of justice.
61In addition as I have said a number of times now, Mr Voitin received a significantly reduced number of charges as part of the negotiated resolution.
62In my view these were the motivators of Mr Voitin entering his guilty pleas, and I reject his evidence to the contrary.
63The prosecution against PS was maintained for some further three months after Mr Voitin's matter resolved. The decision to discontinue is a non-reviewable exercise of prosecutorial discretion.
64Regarding the discontinuance of a prosecution, this has been described as a decision turning on the prosecutor’s independent discretion, and exempt from judicial superintendence or interference, unless constituting an abuse of process or giving rise to a miscarriage of justice. The case before me is far removed from either of these.
65French CJ in Likiadoupoulos[7] stated:
"The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process.
A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings.
A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits. Moreover, as their Honours point out, trial judges have available to them sanctions to enforce well-established standards of prosecutorial fairness and to prevent abuses of process. The above considerations, reflected in a number of decisions of this Court referred to in the joint judgment of Gaudron and Gummow JJ in Maxwell, support the proposition that in a practical sense prosecutorial decisions are for the most part insusceptible of judicial review."
[7] p269 [paragraph 2]
66In their joint judgment in Maxwell v The Queen, Gaudron and Gummow JJ at paragraph [26] stated:
[26] "It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (See Connelly v Director of Public Prosecutions[1964] AC 1254 at 1277; R v Humphrys[1977] AC 1 at 46; Barton v The Queen[1980] HCA 48; (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (See R v Allen[1862] EngR 309; (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen[1980] HCA 48; (1980) 147 CLR 75 at 90-91), to proceed ex officio (See Barton v The Queen[1980] HCA 48; (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (See, eg, R v Apostilides[1984] HCA 38; (1984) 154 CLR 563 at 575) and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (See R v McCready(1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions(1992) 28 NSWLR 593 at 604-605). The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (Barton v The Queen[1980] HCA 48; (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-39, 54 per Brennan J; at 77-78 per Gaudron J; Williams v Spautz[1992] HCA 34; (1992) 174 CLR 509 at 548 per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75 per Gaudron J).
67On the material before me there is nothing that suggests that Mr Voitin’s situation is in any way exceptional.
68Mr Voitin has not satisfied me that his guilty pleas were anything other than conscious, voluntary and deliberate, given freely by him, in circumstances where he well knew what he was pleading guilty to, and that he was receiving a benefit in the nature of reduced charges, and avoiding a joint trial were he feared the outcome. He was competently represented at the time.
69I must dismiss his application, and hold him to his guilty pleas.
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