Gant v The Queen

[2016] VSCA 340

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0230

PETER STANLEY GANT	Applicant
v
THE QUEEN	Respondent

S APCR 2016 0231

MOHAMMED AMAN SIDDIQUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 December 2016
DATE OF JUDGMENT:	16 December 2016
CASE MAY BE CITED AS:	Gant v The Queen
MEDIUM NEUTRAL CITATION:	[2016] VSCA 340

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CRIMINAL LAW – Bail pending appeal – Exceptional circumstances – Relevance of trial judge’s strongly held view that convictions may be quashed as unsafe or unsatisfactory – Whether considerations of ‘parity’ relevant when one applicant faces relatively short term of imprisonment which will substantially have been served by the time any appeal is heard while the other faces a significantly longer term of imprisonment and may not, therefore, fall within principles laid down in Re Zoudi (2006) 14 VR 580.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Mr Gant	Mr T E Wraight QC with Ms F H Todd	Stary Norton Halphen
For the Applicant Mr Siddique	Mr R van de Wiel QC with Mr J A Ribbands	James Dowsley & Associates
For the Crown	Mr D D Gurvich QC with Mr P J Doyle	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA:

1. After a trial lasting some 22 days, the applicants were each convicted, in May 2016, of two charges of obtaining financial advantage by deception, and one charge of attempting to obtain a financial advantage by deception.  The offending occurred between November 2007 and February 2010.

1. The prosecution alleged that, at some point in or after 2007, the applicant Mohammed Siddique, an art conservator and restorer, produced three paintings in the style of the well-known Australian artist Brett Whiteley.  Whiteley had died in 1992.  It was further alleged that the applicant, Peter Gant, an established art dealer, marketed the paintings as genuine works by Whiteley and arranged for their sale for very large sums.

1. On 28 July 2016, Croucher J heard a plea in mitigation.  On 4 November 2016, Mr Gant was sentenced to a total of five years’ imprisonment, with a non-parole period of two years and six months.  On the same day, Mr Siddique was sentenced to a total of three years’ imprisonment, of which all but ten months was suspended.[1] 

   [1]Each applicant was sentenced on the basis that he was a ‘continuing criminal enterprise offender’, within the meaning of the relevant provisions of the Sentencing Act 1991.  Accordingly, the statutory maxima were doubled, being 20 years for the completed offence and ten years for the attempt.

1. Most unusually, the sentencing judge exercised the power conferred by s 309(2) of the Criminal Procedure Act 2009,[2] to stay the operation of these sentences pending the hearing and determination of an application to this Court for bail, or for a further stay of sentence.  His Honour gave detailed reasons for adopting that course. 

   [2]This sections reads: ‘The trial judge or, if a notice of appeal or notice of application for leave to appeal is filed, the Court of Appeal may stay a sentence if satisfied that it is in the interests of justice to do so.’

1. First, he noted that it had only been by a ‘hair’s breadth’ that he had rejected defence submissions, at the close of the Crown case, that there was no case to answer.  He said that his state of mind at the time that he rejected those submissions was that:

…it was not open to a properly instructed jury to exclude the reasonable possibility that the three paintings the subject of the charges were created by Mr Whiteley in 1988.  If that was right, verdicts of not guilty had to follow.

1. Despite his view that the prosecution case could barely pass muster, his Honour regarded himself as ‘compelled in law’ to reject the defence submissions of ‘no case to answer’. 

1. The trial judge determined, nonetheless, that it was appropriate to give the jury what is generally termed a Prasad[3] direction, inviting them to acquit each accused without hearing any further evidence if they choose to do so.  He gave that direction, but the jury declined the invitation. 

   [3]R v Prasad (1977) 23 SASR 161, 163 (King CJ).

1. In those circumstances, when it came to sentencing each applicant, his Honour recognised that he was obliged to pay respect to the jury’s verdicts and to sentence both accused on the basis that they had been properly convicted of these offences.  Whether the verdicts were relevantly ‘unsafe’ was not for him, as the trial judge, to determine but rather for the Court of Appeal to consider at a separate and subsequent hearing.

1. Secondly, the trial judge gave particular weight to psychiatric evidence adduced on behalf of Mr Siddique to the effect that any custodial term that he might be required to serve would be extremely detrimental to his mental state, and that there was a significant risk that, were he to be imprisoned, he would harm himself and perhaps even attempt suicide.

1. Both the applications for bail, and the applications for a further stay of sentence pending the hearing of any appeal are premised upon the likelihood, so it is said, that this Court will take the same view of these convictions as did the trial judge.  In other words, it is submitted that it is likely that these convictions will be held to be unsafe or unsatisfactory.

1. In granting each stay, his Honour was acutely aware of the reason why trial judges rarely, if ever, adopt such a course.  As his Honour put it, once there is a case to answer, it is a matter for the jury and not the trial judge, to determine whether the accused is guilty or not guilty.  Once a verdict of guilty has been delivered, it is for the Court of Appeal, and not the trial judge to determine whether that verdict is unsafe, if challenged. 

1. In Chamberlain v The Queen (No 1),[4] Brennan J observed that to suspend or defer a sentence before an appeal is heard is to invest the verdict of the jury with a ‘provisional quality’, as though it should take effect only after the channels of appeal have been exhausted.  Yet, as his Honour noted, the jury is the tribunal constituted to determine whether or not guilt has been established, and its verdict must take effect immediately.  To grant bail pending appeal (which was the issue in Chamberlain (No 1), particularly in a case involving the imposition of a term of imprisonment, is to ‘whittle away’ the finality of the jury’s finding and treat the verdict merely as a step in the process of appeal.  As Brennan J went on to say, the central feature in the administration of criminal justice is the jury, and it is wrong to regard to effect of its verdict as ‘contingent upon confirmation by an appellate court.’[5]

   [4]Chamberlain v The Queen (No 1) (1983) 153 CLR 514, 520 (Brennan J).

   [5]Ibid.

1. Having referred to Chamberlain (No 1) Croucher J then elaborated, in some detail, upon why he considered that there was, in this case, a ‘powerful argument’ that these guilty verdicts were unsafe.  Indeed, he described that argument as ‘compelling’.  When combined with Mr Siddique’s fragile mental state, the likelihood that the convictions would be set aside on appeal, made it appropriate to grant a stay of sentence in his case and, perhaps by way of parity,[6] in Mr Gant’s case as well.

   [6]Although the cases do not speak with one voice, the fact that one offender has been granted bail may be relevant, by reasons analogous to parity, when considering whether a co-offender should also be granted bail.  See Re Browne-Kerr (Unreported, 10 August 1993, Coldrey J, Vic, SC); DPP v Abbott (1997) 97 A Crim R 19, 29 (Gillard J); cf Re Radev & Zayat (1998) 108 A Crim R 121 (Beach J); Re Wilson [2006] VSC 178, [18]-[20] (Hargrave J).

1. In accordance with the terms upon which each stay was granted, the applicants both subsequently filed Notices of Application for Leave to Appeal Against Conviction, together with detailed written cases in support of those applications.

1. On 23 November 2016, Mr Gant filed in this Court both a Notice of Intention to Make Application for Bail, and a Notice of Intention to Make Application for a Stay on Sentence.  On the following day, Mr Siddique filed similar notices.

1. It is unnecessary for present purposes to deal with either application for a further stay of sentence.  Indeed, during the course of argument this morning, and for purely technical reasons, we ordered that the existing stays be set aside.  The relevant questions to be considered are fully encompassed within each application for bail.

1. It is well established that in order to obtain bail pending appeal ‘exceptional circumstances’ must be shown.  Importantly, in the case of these two applicants, the Crown has indicated that it does not oppose either application.

1. It refers, in that regard, to two affidavits filed by a solicitor in the Office of Public Prosecutions who has had the overall conduct and care of this matter.  In that affidavit, the deponent correctly recognises that the test for bail pending appeal is set out in Re Zoudi.[7]  In that case, a five member Court of Appeal noted that such bail would only be granted where ‘exceptional circumstances’ had been demonstrated.  The Court went on to say that it had long been accepted that, in determining whether such circumstances existed, it was relevant to consider the likely expiry, before the appeal could be heard, of the whole, or a substantial portion of any sentence of imprisonment imposed. 

   [7](2006) 14 VR 580.

1. In the present case, the hearing of these applications for leave to appeal against conviction, based as they must inevitably be upon a detailed analysis of the evidence given in a lengthy trial, is likely to require considerable time for preparation, a lengthy court hearing, and possibly also a substantial period of deliberation. 

1. It is clear to us that these applications for leave to appeal will not be able to be heard by this Court until well into next year, and possibly after the middle of next year.  If Mr Siddique were to go into custody now he will have served the major part of ten month custodial term before his application can be heard.  Mr Gant, is in a different position.  He will have served only a much shorter proportion of his head sentence and non-parole period by that stage.  The arguments in favour of his being granted bail are obviously far weaker than those in favour of Mr Siddique being granted bail.  Nonetheless, the Crown has, very fairly, accepted that it would be wrong to differentiate between the two men in terms of the outcome of these bail applications.  Their position is that if Mr Siddique is to be granted bail, so too should Mr Gant.

1. Before this Court the Crown’s position regarding bail is that it is unopposed. That is an important factor.  In all the circumstances, we are satisfied that Mr Siddique has clearly shown exceptional circumstances.  We are prepared to accept the Crown’s concession that Mr Gant should be treated also as having done so. 

1. There is no suggestion that either applicant poses an unacceptable, or indeed any risk if granted bail.  Indeed, the evidence is powerfully to the contrary.

1. It should be made perfectly clear that nothing in these reasons suggests that either appeal is likely to succeed.  We have heard no argument regarding the strength of the proposed grounds of appeal.  Nonetheless, we are of course conscious of the views expressed in unusually strong terms, by a judge with considerable experience in the criminal law, that these verdicts should not be permitted to stand.

1. It remains only to resolve the conditions upon which bail should be granted. 

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