Heedes v The State Of Western Australia [No 2]
[2008] WASCA 142
•4 JULY 2008
HEEDES -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 142 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:170/2005 | 12 JUNE 2008 | |
| Coram: | BUSS JA MILLER JA MURRAY AJA | 4/07/08 | |
| 41 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Convictions quashed | ||
| B | |||
| PDF Version |
| Parties: | ARTHUR SAMUEL HEEDES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law and procedure Evidence Tender of file containing prejudicial material Failure of experienced counsel to object Whether miscarriage of justice Crossexamination of appellant in relation to change of name Putting character in issue No application for leave No objection Whether miscarriage of justice Criminal law Trial judge's reference in summing up to appellant's change of name Whether direction prejudicial Absence of any other direction Direction of trial Judge on implied guilt through lies Not part of prosecution case Whether miscarriage of justice |
Legislation: | Criminal Appeals Act 2004 (WA), s 27(2), s 30(5), s 30(4) Evidence Act 1906 (WA), s 8 |
Case References: | A Child v Andrews (1994) 12 WAR 552 Deville v The State of Western Australia [2004] WASCA 264 Donnini v The Queen (1972) 128 CLR 114 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Edwards v The Queen (1993) 178 CLR 193 Gassy v The Queen [2008] HCA 18 Gately v The Queen [2007] HCA 55 Heedes v The State of Western Australia [2005] WASCA 251 Keating v The State of Western Australia [2007] WASCA 98 Matthews v The Queen [1973] WAR 110 R v Jenkins (1945) 31 Cr App R 1 R v Nylander [2003] SASC 191 R v Wright [1999] 3 VR 355 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Skipworth v The State of Western Australia [2008] WASCA 64 The Queen v Noll (Unreported, VSC, 0203/97, 8 October 1997) Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEEDES -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2008] WASCA 142 CORAM : BUSS JA
- MILLER JA
MURRAY AJA
- CACR 171 of 2005
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : YEATS DCJ
File No : IND 486 of 2004
(Page 2)
Catchwords:
Criminal law and procedure - Evidence - Tender of file containing prejudicial material - Failure of experienced counsel to object - Whether miscarriage of justice - Crossexamination of appellant in relation to change of name - Putting character in issue - No application for leave - No objection - Whether miscarriage of justice -
Criminal law - Trial judge's reference in summing up to appellant's change of name - Whether direction prejudicial - Absence of any other direction - Direction of trial Judge on implied guilt through lies - Not part of prosecution case - Whether miscarriage of justice
Legislation:
Criminal Appeals Act 2004 (WA), s 27(2), s 30(5), s 30(4)
Evidence Act 1906 (WA), s 8
Result:
Appeal allowed
Convictions quashed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr S Vandongen
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
(Page 3)
Case(s) referred to in judgment(s):
A Child v Andrews (1994) 12 WAR 552
Deville v The State of Western Australia [2004] WASCA 264
Donnini v The Queen (1972) 128 CLR 114
Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285
Edwards v The Queen (1993) 178 CLR 193
Gassy v The Queen [2008] HCA 18
Gately v The Queen [2007] HCA 55
Heedes v The State of Western Australia [2005] WASCA 251
Keating v The State of Western Australia [2007] WASCA 98
Matthews v The Queen [1973] WAR 110
R v Jenkins (1945) 31 Cr App R 1
R v Nylander [2003] SASC 191
R v Wright [1999] 3 VR 355
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Skipworth v The State of Western Australia [2008] WASCA 64
The Queen v Noll (Unreported, VSC, 0203/97, 8 October 1997)
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen (1988) 164 CLR 365
(Page 4)
1 BUSS JA: I agree with Miller JA.
2 MILLER JA: The appellant was charged on an indictment that alleged two counts of fraud. They were that:
(1) Between 17 March 2000 and 31 March 2000 at Perth ARTHUR SAMUEL HEEDES, with intent to defraud, by deceit or fraudulent means gained a benefit, namely $21,000 in money, for ARTHUR SAMUEL HEEDES
(2) AND FURTHER THAT between 31 March 2001 and 6 April 2001 at Perth ARTHUR SAMUEL HEEDES, with intent to defraud, by deceit or fraudulent means gained a benefit, namely $25,900 in money, for ARTHUR SAMUEL HEEDES.
3 The appellant pleaded not guilty to the charges and was tried before Yeats DCJ and a jury in the District Court at Perth between 13 and 15 July 2005. He was convicted of both counts on the indictment.
4 On 2 September 2005, the trial judge heard submissions in relation to sentence and on that day sentenced the appellant to imprisonment for 6 months on each count to be served cumulatively and with effect from 29 August 2005. The appellant was made eligible for parole.
5 On 8 September 2005, the appellant lodged a notice of appeal against conviction and sentence. His ground was then 'reasonable apprehension of bias leading to a denial of procedural fairness', but when the appellant filed his case, the grounds were expanded to what were effectively three grounds of appeal against conviction and three against sentence. The appeals were separately numbered CACR 170 and CACR 171 of 2005 respectively.
6 The appeal against conviction raised the following grounds:
1. A miscarriage of justice has occurred with the convictions being recorded against the Appellant (error of law).
lA. The trial was conducted in an unfair manner to the Appellant.
Particulars
- a) The Appellant was required to commence giving his evidence in chief after 4PM on the second day of trial in circumstances which included not having any sleep from the night before.
b) The closing addresses by counsel should have immediately followed each other - as it was the State had the advantage of the jury retiring for lunch on the third day of trial with only its closing address to reflect upon;
(Page 5)
- this is to be contrasted with Defence counsel being obliged to deliver his closing after the luncheon adjournment and on a Friday afternoon.
c) The jury was sent out late on Friday afternoon to consider their verdicts.
d) In summary the trial was rushed with insufficient court time available for it to be fairly conducted/completed.
lB. The State split its case when cross-examining the Appellant.
Particulars
The Prosecution split its case in the following manner when conducting it cross-examination of the Appellant:
a) tendering into evidence of the Esanda file (Exhibit 39) [T 328]; and
b) questioning the Appellant as to his current name [T 305].
1C The learned trial judge mis-directed the jury on the burden of proof.
Particulars
The learned trial judge's charge to the jury 'You can look at the evidence and decide which you accept' [T 355] and 'You will want to look at the scratch pad and the evidence of Mr Dropulich as to how much money was owing on the contract and consider whose evidence you accept ... '
7 The appeal against sentence raised the following grounds:
1. The learned sentencing judge failed to fully consider the penultimate sentencing option of a suspended sentence (error of law).
Particulars
- a) the learned sentencing judge failed to attribute 'double weight' and re-consider all of the factors relevant both to the offence and to the offender which may influence the decision whether to suspend the sentences of imprisonment.
b) Given the various mitigating factors personal to the Appellant (particularised below), the learned sentencing judge should have given greater consideration as to whether a sentence of suspended imprisonment could have been imposed.
2. The learned sentencing judge gave insufficient or no weight to the Appellant's partner's terminal cancer condition (error of mixed fact and law).
(Page 6)
- 3. The sentence was manifestly excessive - the learned sentencing judge should have imposed no more than a suspended sentence of imprisonment (error of mixed fact and law).
Particulars
Insufficient weight was given to various mitigating factors personal to the Applicant, particularly:
a) he does not have a serious prior record;
b) the remorse he at least demonstrated to the two complainants for his offending behaviour through the substantial restitution he made to them; and
c) his partner's terminal cancer condition, which calls for a merciful and compassionate sentence to be imposed.
8 Application for leave to appeal was heard before Roberts-Smith JA on 12 December 2005. His Honour considered that the appeal against conviction raised three separate grounds and he renumbered grounds 1A, 1B and 1B, 1, 2 and 3 respectively. Leave to appeal was granted in relation to ground 2, but refused on grounds 1 and 3. Leave to appeal was granted in relation to the three grounds of appeal against sentence.
9 On 4 May 2007, the appellant filed a minute of proposed amended grounds of appeal which purported to relate to both the appeal against conviction and the appeal against sentence. Six separate grounds were raised. Grounds 4 and 5 were grounds of appeal against sentence. They effectively repeated the grounds of appeal in relation to which leave had previously been granted. Ground 1 contended that the appellant was not afforded a fair trial because he was denied procedural fairness; ground 2 alleged 'prosecutorial misconduct by both the WA Police Service and DPP'; ground 3 alleged 'reasonable apprehension of bias against Judge Yeats'; and ground 6 contended that the jury verdict was unsafe 'and or reached in a prejudicial environment to the appellant and was against the weight of the evidence with the DPP not fully discharging their burden of proof and the jury being misdirected in relation to said burden'.
10 The minute of proposed amended grounds of appeal was accompanied by a set of written submissions dated 28 September 2007. These submissions contended first that the Director of Public Prosecutions had adopted a 'win at all costs' attitude which (effectively) led to a miscarriage of justice; that throughout the trial process there had been a denial of procedural fairness 'by both the District and Supreme Court plus the police and the DPP'; that Yeats DCJ was biased against the appellant;
(Page 7)
- and that on 12 December 2005, when the appellant argued leave to appeal, he was in poor health and ought not to have been forced to proceed.
11 The application to amend the grounds of appeal came before Wheeler JA on 25 May 2007. Her Honour ordered that proposed amended grounds 1(c), 2 (excluding par (d)), 3, 4, 5 and 6 should be referred to the Court of Appeal to be dealt with together with the hearing of the appeal, but that the proposed amended grounds 1(a), (b), (d), (e), (f) and 2(d) be struck out. These were struck out without objection from the appellant. The basis upon which they were struck out was that they repeated the grounds which were the subject of the application to review.
12 Upon the hearing of the appeal, the court refused leave to amend the grounds of appeal. It considered that ground 2, in relation to which leave had been granted by Roberts-Smith JA, raised a number of issues which encompassed the essential complaints contained within the proposed amendment. Other aspects of the proposed amended grounds of appeal raised issues such as 'prosecutorial misconduct by both the WA Police Service and DPP' and 'reasonable apprehension of bias' by the trial judge; these grounds were not open to be argued and in relation to them leave was accordingly refused.
13 The appellant also sought to review the decision of Roberts-Smith JA refusing leave to appeal on grounds 1 and 3.
14 Leaving aside the application to review the decision of Roberts-Smith JA in relation to grounds 1 and 3 of the grounds of appeal against conviction, the ground of appeal upon which leave was granted (ground 2) requires reformulation. In its present form, it is a ground which alleges that the prosecution split its case in the course of cross-examination of the appellant. Two particulars are given, namely, the tender of the Esanda Finance Corporation Ltd (Esanda) file and the questioning of the appellant as to his name. This ground when properly formulated becomes, in effect:
The appellant's convictions constituted a miscarriage of justice arising from:
(a) the admission into evidence of 'the Esanda file' (exhibit 39);
(b) the cross-examination of the appellant in relation to his change of name;
(c) reference by the trial judge in the course of her summing up to the jury to the appellant's change of name; and
(Page 8)
- (d) the direction by the trial judge to the jury that material within the Esanda file (exhibit 39) was such that it demonstrated that the appellant had lied and lied with a consciousness of guilt.
15 The last particular was not contained within any of the grounds of appeal of the appellant. Counsel for the respondent properly brought the matter to the attention of the court. The relevant passage in the trial judge's summing up to the jury reveals that the trial judge took it upon herself to raise with the jury the question whether the content of the Esanda file revealed lies told by the appellant which constituted a consciousness of guilt. As the trial judge acknowledged, this was not stated to be the prosecution case, but 'would be' its case. The passage is in the following terms:
The state again with those lump sum payments says if you look at the scratch pad it's clearly not true and I'm sure Mr Myers would say if you look in the Esanda files, which is that big document that came in at the end, there's just nothing there to show it. The state case would be that he's lied to you about those matters.
- By reason of the matter having been brought to the attention of the court by counsel for the respondent, it is appropriate that it should now constitute a ground of appeal.
Application to review
16 The appellant seeks to review the decision of Roberts-Smith JA dismissing applications for leave to appeal on grounds 1 and 3.
Ground 1
17 This ground contends that the trial was conducted in an unfair manner to the appellant. In summary, the appellant's contention is that the trial process was compressed, rushed and heard in circumstances in which the appellant was not physically fit to defend himself.
18 Roberts-Smith JA considered that this ground had no reasonable prospect of success: Criminal Appeals Act 2004 (WA) s 27(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] - [59]. His Honour, in Heedes v The State of Western Australia [2005] WASCA 251, said:
In relation to ground 1 the matters raised are not unusual incidents of many trials. They do not, of themselves, involve any unfairness, nor do they reveal any. The applicant, in the course of his submissions to me today, sought to canvass things he says passed between him and his counsel, but
(Page 9)
- there is no evidence of that and it is unlikely that leave to adduce it would be given.
It has not been suggested to me that counsel at trial made any complaint to the trial Judge that the presentation of the applicant's case was in any way prejudiced by pressure of time. As the submissions for the respondent indicate, the applicant was represented at trial by experienced trial counsel who raised no objection to her Honour regarding the scheduling of the course of the trial. Both prosecuting counsel and her Honour confirmed that the applicant should have every opportunity to present his case without pressure of time (see t/s 261, 262 and 263). [13] - [14]
19 For the appellant to succeed in his application to review this decision, it is necessary for the appellant to establish that Roberts-Smith JA was in error: Keating v The State of Western Australia [2007] WASCA 98 [23] (Steytler P & McLure JA).
20 In my opinion, the appellant has failed to disclose any error in the reasoning of Roberts-Smith JA. The appellant was represented by experienced counsel. No complaint was made by him that the trial process was rushed or otherwise conducted in such a way as to be prejudicial to the interests of the appellant.
21 There are some passages in the transcript which, no doubt, excited the appellant's concern. For example, at the commencement of the trial on the second day (14 July 2005), the trial judge made reference to the fact that the appellant had written to her. The letter written by the appellant apparently expressed concern about his capacity to continue with the trial by reason of the condition of his wife. In the course of discussion, the trial judge stated that 'the trial is going to be finished on Friday and we're going to proceed'.
22 During the course of the appellant's evidence-in-chief on 14 July 2005, the appellant strayed from relevant matters and the trial judge made the following observation:
YEATS DCJ: Mr Robbins, we really enjoy hearing everything about life and all of the people he's ever met in his life, but could you focus - the jury doesn't want to sit here until 7 o'clock tonight [to] hear his evidence.
23 On 15 July 2005, the evidence concluded at approximately 12.30 pm. The trial judge called on the prosecutor to address the jury and indicated that counsel for the appellant would be required to address after the luncheon adjournment. No objection was raised by counsel for the appellant to this course.
(Page 10)
24 The trial judge began her summing up to the jury at 3.33 pm on 15 July 2005. The jury retired to consider its verdict at 4.36 pm that day. It was a Friday and it was a late hour for the jury to be called upon to consider a verdict. The trial judge said to the jury:
YEATS DCJ: I really regret that we have had to send the jury out so late. I don't know who set this trial down but it should have been a four-day trial, as we all realise. Could I thank both counsel for assisting me in getting the trial going. Do either counsel have any comments on any facts or law that I might have got wrong?
- There were some submissions in relation to the trial judge's directions to the jury, but there was no complaint by counsel for the appellant that the trial process was being rushed in any way.
25 It is a matter of concern that the appellant's trial reached a conclusion at such a late hour on a Friday afternoon, but, as pointed out by Roberts-Smith JA, the appellant was represented at trial by experienced counsel and no objection was raised at any time in relation to the scheduling of the course of the trial. To the contrary, counsel made it clear that there was no prejudice occasioned to the appellant by the way in which the trial was proceeding. The following passage indicates the view of both counsel:
ROBBINS, MR: ... I ... ask that Mr Heedes be granted bail tonight so that he can get sufficient rest for him to be able to give his evidence tomorrow in a fresh state.
He doesn't want to compromise the trial, your Honour. He does not want to delay your Honour. He didn't delay your Honour this morning. The delay was apparently through two jurors not being able to attend on time. He has always answered his bail and he will continue to do so and I will - I can, your Honour, tomorrow to ensure that his evidence is within short compass so that the trial can proceed and your Honour can charge the jury in good time. I ask that please could you grant bail.
YEATS DCJ: It's a very fine line, Mr Robbins.
MYERS, MR: Your Honour, can I just put something - and I'm sure your Honour agrees with this, but there's no pressure on this to finish the trial early. The accused should within the bounds of admissible evidence be given every opportunity to present his case and that shouldn't be tied to any question of bail or any other matter, your Honour.
YEATS DCJ: That's certainly true and if it takes him all day tomorrow and Saturday we will hear his evidence.
MYERS, MR: Yes, your Honour.
(Page 11)
- ROBBINS, MR: Well, it won't. It won't, your Honour, and I will conduct my responsibility to the court and to the accused.
YEATS DCJ: No, but you make sure that he gives all the evidence he wants to give.
ROBBINS, MR: I will, your Honour, yes.
YEATS DCJ: About relevant matters.
ROBBINS, MR: Yes.
26 In my opinion, Roberts-Smith JA was correct to conclude that the progress of the trial was not such as to prejudice the appellant and no error has been shown by the appellant in the reasoning of Roberts-Smith JA which would justify any conclusion other than that reached by the learned judge. I would therefore refuse the application to review ground 1.
Ground 3
27 This ground contends that the trial judge misdirected the jury in relation to the burden of proof. The ground makes reference to the trial judge telling the jury that they could 'look at the evidence and decide which you accept' and in relation to the evidence of Mr Dropulich it was said that they should 'consider whose evidence you accept'.
28 The trial judge gave the normal direction in relation to burden of proof. That direction was in the following terms:
There are some fundamental rules that apply and it's important you keep these in mind. The first is the burden of proof. In every criminal trial the burden of proof rests on the prosecution from the beginning to the end. It never shifts. During your deliberations you must continually keep that in mind because it's probably the most fundamental and important aspect of the law.
The prosecution brought these two charges and it's for them to prove them. An accused person does not have to give evidence, has no obligation to prove anything in this court. Under our laws, as I told you at the commencement of the trial, an accused person is presumed to be innocent unless or until by your verdict you were to find him guilty.
If he does go in the witness box, as the accused has chosen to do, if he does give evidence and raises a defence it's not for him to prove it. The prosecution has to negative the defence. Where he does give evidence, he becomes the same as the other witnesses though. You notice he gave his evidence on oath and you judge him in the same way you judge all the witnesses as to whether you believe them or not. That's a matter entirely for you.
(Page 12)
- ...
Now, the result of all that, ladies and gentlemen, is simply this. If, after considering all of the evidence in this case, there remains in your minds a reasonable doubt as to the guilt of the accused in relation to either count you would have to acquit him and bring in a verdict of not guilty on that count. If on the other hand, having considered all of the evidence, you are satisfied beyond reasonable doubt of his guilt of either or both of the charges, you would have to bring in a verdict of guilty or verdicts of guilty.
29 One of the passages objected to by the appellant is the following:
Now, the witnesses are your main focus, ladies and gentlemen. You need to look carefully at the evidence that the witnesses have given, you look carefully at each witness, you could accept totally what a witness says or you may accept what [is] said about one matter but you might find that you don't accept what they say about another matter.
30 However, this passage followed almost immediately from that which I have quoted. It needs to be read in the context of the direction about burden of proof. Further, it makes the point that the jury was entitled to accept all of what a witness said, some of what a witness said, or none of what a witness said. All of that is correct and unexceptionable.
31 The second passage to which the appellant refers is the following reference to the evidence of Mr Dropulich:
You will want to look at the scratch pad and the evidence of Mr Dropulich as to how much money was still owing on that contract and consider whose evidence you accept if you accept the accused's evidence clearly he is not guilty of any of these offences but it's not for the accused to prove his innocence, you have to look at the evidence that the state brought and determine does it satisfy you beyond reasonable doubt, is the only reasonable inference open on all the facts that he did intend to defraud Mr Bailey.
32 I have emphasised the words complained of by the appellant. However, when read in the full context of the direction, it is clear that what the trial judge said was entirely in accordance with law; namely, that in considering the evidence and in considering whose evidence should be accepted, the burden of proof should be kept in mind throughout that deliberation. The direction was unexceptionable.
33 Roberts-Smith JA considered that there was no substance in ground 3 and no error has been shown by the appellant in relation to his Honour's conclusion. I would therefore refuse the application to review.
(Page 13)
Ground 2
The admission into evidence of the Esanda file (exhibit 39)
34 The prosecution case against the appellant was that he sold to each of the two persons named in the indictment a motor vehicle whilst that vehicle was still under hire-purchase to Esanda. The prosecutor in opening put the case in the following terms:
Essentially the state says that the accused man sold to each of the individuals involved in the complaints a motor vehicle while that motor vehicle was still under hire purchase to Esanda and that there was money owing on the vehicle and the accused person knew that at the time that he sold it and he sold it knowing that he had no right to sell it to each of these persons and thereby gained a benefit, that is the money that he obtained by way of purchase price.
35 In point of fact, the prosecutor misstated the prosecution case. It was not that the appellant had sold a vehicle under hire-purchase, but that the appellant had misrepresented to the purchasers of the vehicle in each case the amount owing to Esanda in relation to each vehicle.
Sale of the Ford Transit van
36 The first count on the indictment involved the sale of a Ford Transit van to Jose Navarro and Angela Navarro, who carried on business under the name of Perfect Paws. They gave evidence that they saw an advertisement in The West Australian newspaper for the sale of the vehicle and they contacted the person named. The vehicle was a 1998 Ford Transit panel van. They went to look at it and met the appellant. He took them for a test drive. He indicated that the purchase price was $21,100. Mr Navarro put a deposit of $100 on the van and said that he would need to get funds to pay the balance. He asked the appellant whether there was any money owing on the van and the appellant said that there was no money owing, but he would confirm this.
37 The appellant later requested Mr Navarro to pay $15,911.10 to Esanda and $5,088.90 to Mobile Industrial Supplies, a company associated with him. The prosecution case thus was that the appellant made a representation that the money to be paid to satisfy Esanda was $15,911.10 and this would allow him to give good title to the vehicle to Mr Navarro.
38 Cheques were duly made out in those sums respectively and (after some delay) the vehicle was transferred to Mr Navarro. The prosecution
(Page 14)
- case was that, as at the date Mr Navarro paid the moneys to the appellant, the actual payout figure to Esanda was $28,700.63 and not $15,911.10.
39 Mr George Dropulich, Asset Control Manager for Esanda Finance Corporation Ltd, gave evidence that, on the date upon which Mr Navarro paid him the sum of $15,911.10, the appellant went into the office of Esanda and used that money to pay a portion of outstanding amounts under hire-purchase agreements respectively for the Ford Transit van and for a Holden Jackaroo. The records of Esanda recorded that the appellant was going away for nine months and was making nine months' payment on each vehicle. The prosecution case was that, at the time the Ford Transit van was sold, Esanda was owed an amount which exceeded $15,911.10 and the appellant well knew this to be so.
Sale of the Holden Jackaroo
40 The second count on the indictment related to the sale of a Holden Jackaroo vehicle. Stuart Ian Bailey saw an advertisement in what he thought was TheSunday Times newspaper in April 2001. He met with the appellant and decided to purchase the vehicle. The purchase price was $25,900. Mr Bailey paid a deposit of $500. He asked whether the vehicle was encumbered in any way and was told by the appellant that he had one payment to make on it. Mr Bailey gave the appellant a cheque for $4,985 payable to Esanda, being the amount that the appellant told Mr Bailey was owing to Esanda in relation to the vehicle. Mr Bailey told the appellant that he would not pay him any more moneys until such time as he had confirmation from Esanda that nothing more was owing on the vehicle. The appellant agreed to get such confirmation and faxed to Mr Bailey what purported to be a letter from Esanda dated 5 April 2001. That document, which became exhibit 17 in the proceedings, referred to a contract number 611814759 and to a Holden station sedan. The first paragraph of it said:
We are pleased to advise you that your contract with Esanda is now complete and would like to thank you for your valued business.
- Mr Bailey was satisfied with the letter and he paid the appellant a further $100 cash and $19,315 by cheque.
41 The prosecution case was that the letter was forged and untrue. Mr Dropulich gave evidence that a biller code at the foot of the letter made reference to a contract number which was different from that shown in the heading to the letter. Furthermore, a biller code would not normally be on a letter of finalisation.
(Page 15)
42 The prosecution case was that, at the time the vehicle was sold to Mr Bailey, there was a sum of $42,811.63 which was the payout figure on it. It was thus alleged that, by reason of the appellant's fraud, Mr Bailey was led to believe that a figure of $4,985 was the payout figure on the vehicle when in point of fact it was substantially more.
43 The prosecution called Mr Navarro and Mr Bailey to give evidence about the circumstances in which the respective vehicles were purchased. The prosecution also called Mr Dropulich to give evidence in relation to the hire-purchase agreements with Esanda in relation to each vehicle.
Evidence of George Dropulich
44 Mr Dropulich produced records relating to hire-purchase agreements between Esanda and the appellant in relation to the Ford Transit and the Holden Jackaroo vehicles. The agreements were apparently contained within a file which later became known as the Esanda file. The hire-purchase agreement in relation to the Ford Transit vehicle was taken off the file and it became exhibit 13 in the proceedings. It was a two-page document referred to as a contract. A six-page summary of the account relating to the Ford Transit van was tendered in evidence as exhibit 20.
45 The hire-purchase agreement in relation to the Holden Jackaroo was also taken from the file and tendered in evidence as exhibit 28.
46 Mr Dropulich referred to the materials as coming from a 'customer scratch pad' and thereafter there was extensive reference to 'scratch pads' in relation to the two contracts in question.
47 Mr Dropulich was asked whether, in relation to the Ford Transit vehicle, there was at any time prior to 24 March 2000 an inquiry by 'the customer' (the appellant) for a payout figure. He said there was not. Had there been, it would have been recorded on the contract scratch pad. Mr Dropulich said that that would be the case whether the inquiry was made in Western Australia or any other State. Mr Dropulich also gave evidence that the records made no reference to any request from the customer (the appellant) for permission to dispose of the vehicle.
48 The same evidence was also given in relation to the Holden Jackaroo. Mr Dropulich was taken to the scratch pad relevant to that vehicle and asked whether there was any record of an inquiry made as to a payout figure by the customer. Mr Dropulich said that he had gone back to 14 March 2000 and there was no record of any payout quote being
(Page 16)
- given to the customer. He also gave evidence that the payout figure on the Holden Jackaroo which was valid until 18 April 2001 was $42,811.63.
49 When the prosecutor sought to tender exhibit 20, he made it clear that he had reservations about the whole of the Esanda file going into evidence:
YEATS DCJ: Is eventually that whole bundle going in? If it's not, I almost think we're going to have to lift off the contract. I mean, the jury - - -
MYERS, MR: There are a number of documents that will go in off it, your Honour, yes. I'm not sure I want the whole file in. There's other material on it. We probably can lift off the contract now.
50 No objection was raised by counsel for the appellant to the tender of any of the material from the Esanda file. This included exhibits 20 and 29 which constituted 'scratch pad' records in relation to each of the two vehicles.
51 Exhibit 20 contains a number of hearsay references to the appellant, including the fact that a complaint had been made by the Navarros in relation to the appellant's conduct, but generally the material within exhibit 20 is unexceptionable.
52 Exhibit 29 was different. The contract scratch pad history in relation to the Holden Jackaroo contains much hearsay material prejudicial to the appellant. There is reference to the appellant as being 'ver[y] arrogant', 'aggressive', 'elusive', 'having many traffic offences', 'having his driver's licence suspended', 'having insurance agents looking for him' and 'having his whereabouts unknown'. There is reference to his partner and a 'possible ex-wife' and to his bankruptcy.
Evidence of the appellant
53 The appellant gave evidence at trial that in 1994-1995 he started the business of Mobile Industrial Supplies, selling industrial supplies to various industries. It was a company which eventually went into what the appellant described as 'Part X bankruptcy'. The business, either itself or with a subsidiary, owned approximately 10 vans from 1995 onwards.
54 By 1999, there were six or seven vehicles owned by the businesses and it became necessary to sell older vans and replace them with newer ones. At least four of the vehicles, but perhaps more, were under hire-purchase with Esanda.
(Page 17)
55 The appellant said that he sold all of the vehicles. A Ford Transit van was sold to Mr Navarro and a man named Alan Jakovich, who was employed by the appellant, was directed to make payment of two cheques to Esanda. These were cheques which had been received by the appellant in relation to the sale of the Ford Transit van. The appellant denied that he had ever personally attended at the office of Esanda, and testified that it was Mr Jakovich who did. The appellant said that he at no time had any intention to defraud Mr Navarro or Mr Bailey in relation to the acquisition of the respective vehicles, saying:
I most certainly did not and I want to qualify that. Mr Navarro I am sorry and I can understand your animus and I can understand your bitterness at what happened and the same with Mr Bailey but there's no way I intended to defraud you and it's a simple matter - well, it's not a simple matter because this has become a very large matter. If I had known at the time I would have most certainly made the payment to you or rectified the problem. If someone had come to me and said there's a problem with what was transpiring I most certainly would have - was in a position to rectify it and could have rectified it. I am sorry - I am sorry for your hardship and so forth. When it comes down to the money that is not an issue. You can have the money now, I'll pay you in cash. I don't have a problem. Same with Mr Bailey. It's never been an issue. You always would've got the money back. I never intended to defraud you and I openly apologise to you but in all fairness - and that's all I'm asking for here is fairness - your version of events.
56 The appellant said in evidence that he had inquired with Esanda about payout figures prior to the sale of the vehicles and he understood that the payout figure on the Ford Transit van was '$5000 or $6000'. His evidence was:
[W]hen I decided to sell the vehicles I inquired upon Esanda for payout figures for all the vehicles that I had with them and at that time which was January of 2000 there would have been two Ford Econovans, this Transit van and the Holden Monteray.
57 The appellant gave similar evidence in relation to the Holden Jackaroo. He said that he got payout figures from Esanda in January and sold the vehicles in circumstances where his representations in relation to the Esanda payout figures were accurate to the best of his knowledge. He denied that he had ever spoken with Mr Dropulich. He said that he had made repeated requests to Esanda for documents which he had never received. His evidence in this respect was as follows:
[O]nce I got the charges and started reading all the brief I obviously tried to prepare for my defence but I made repeated requests both to Esanda and the police to get the documents back from that file and from the moment I
(Page 18)
- got the brief where they listed all the evidence and that and I was either - Esanda were prepared to cooperate, I've got letters there from Esanda where they said, "Yes, well give you the files, we will give you copies of the files." I wrote to them three or four times in early 2004, over 18 months ago, and then at the last moment they've obviously - whether they've had legal advice or spoken to the police they wrote me a letter and said, "No, that's it," after having earlier written to me and said yes they would provide me with them because I believe that there was a lot of information in relation to the vans and in relation to the two Ford Econovans that would have helped me - - -
58 The appellant's counsel tendered a number of letters which the appellant had written to Esanda, to police officers and to 'freedom of information services' seeking information.
59 The appellant said that he had made numerous telephone calls to Esanda over a period of time requesting documents, so that he could reconstruct what had occurred. Those calls were to a 'set number' 13 23 72 and he had no idea to whom he was speaking. He said that sometimes the number would switch from one State to another.
Cross-examination of the appellant
60 When the appellant was cross-examined, he was first asked whether Arthur Samuel Heedes was his correct name. I shall come later to that cross-examination.
61 The appellant was cross-examined about the circumstances of his bankruptcy, about which he had given evidence-in-chief. He confirmed in cross-examination that his defence to the charges against him was that he did not know that there was any money owing on either the Ford Transit van or the Holden Jackaroo which he had sold. He said he relied on representations from Esanda in consequence of inquiry he had made to Esanda about payout figures.
62 The appellant was taken to exhibit 13, the hire-purchase contract in relation to the Ford Transit van. It was put to him that, having regard to the fact that there was a total payment of $46,296 to be made, he could not possibly have expected in March 2000, at a time at which only 24 payments of $771.60 per month had been made, the payout figure to have been between $5,000 and $6,000. His answer was that he always made payments 'ahead of the eight ball' in figures of $5,000 or $10,000. He said he would be signing over cheques to Esanda which were 'large cheques going to Esanda from the business'. He denied the evidence of Mr Dropulich that he was in arrears in relation to the contracts.
(Page 19)
63 It was put to the appellant that he had complained throughout his evidence that he was not given all Esanda documents. The passage is in the following terms:
You complained through the cross examination - the examination by Mr Robbins that you weren't given all the Esanda documents. Is that correct?---That's correct. I made numerous requests to Esanda.
And in relation to these, the two contracts that are under discussion, weren't you given a copy of the whole Esanda file?---No, I was not.
Your solicitors were given a copy of the whole Esanda file in April of this year, weren't they? It was served on them?---April of this year?
Yes, April of this year?---Okay. If you say so. I don't know when they got it.
Just have a look at this bundle of documents, which is a copy of the Esanda file that was delivered to your solicitors, who were Bayly and O'Brien. Is that correct?---If you say so. I have no knowledge of that. I don't - what was sent to Bayly and O'Brien I have no - - -
They were your solicitors, weren't they - - -?---Correct, yeah.
- - - representing you in relation to this charge?---Correct.
Who have briefed Mr Robbins on your behalf?---In the last week or so, yes.
Yes, and are you saying that they were not served with those papers?---I don't know.
So are you saying they haven't gone over those papers with you?---No, they have not.
64 The prosecutor then asked for the papers to be marked and the following exchange occurred:
YEATS DCJ: Yes, the bundle of Esanda records purportedly served on the accused's solicitors in April of 2005 are marked for identification - what number are we? - 39?---In answer to the question that you said, I do have a copy of them. I received that copy about a week ago when I photocopied Mr Robbins' complete file, and because they were served, as you said, April 2005 and this trial was postponed for reasons in March and I haven't looked at this file, didn't look at this file for a good nine months or so and I only recently looked at it and that, and when we were preparing with Mr Robbins, who was a last minute substitute to help me, I then photocopied his file about a week or so ago, the complete file.
(Page 20)
- ROBBINS, MR: I would seek to tender those documents now, your Honour.
YEATS DCJ: Yes, the bundle of Esanda records served on the accused's solicitors in April of 2005 are received as exhibit 39.
EXHIBIT 39 State
- Bundle of Esanda records served on
- accused's solicitors in April 2005
The content of the Esanda file (Exhibit 39)
66 The appellant's ground of appeal initially raised the question of the prosecution splitting its case by the tender of the Esanda file.
67 The way events unfolded, it could not be said that the prosecution split its case. It had in fact tendered most of the Esanda file through exhibits 20 and 29. That tender was during the course of the prosecution case. The Esanda file itself was tendered in its entirety in consequence of the appellant's initial contention that he had sought, but not obtained, all the material that he needed from Esanda and his later concession that his counsel had the complete Esanda file for a period of a week prior to trial.
68 The tender of the Esanda file did not therefore involve a splitting of the prosecution case, but a rebuttal of the appellant's contention that he did not have access to the whole of the Esanda material. Even so, it is questionable that the appellant's concession that his counsel (and he) had access to the complete file for a period of about a week before trial, justified the tender of the whole document.
69 There was no objection to the tender and counsel for the respondent placed considerable emphasis upon this fact at the hearing of the appeal.
70 The failure of counsel to object is a relevant factor but it is not fatal to the appellant's case.
71 In A Child v Andrews (1994) 12 WAR 552, Steytler P, at 7 - 14, reviewed a number of cases which had prior to that time dealt with the inadvertence of counsel to object to inadmissible evidence. Steytler P said:
[T]here is now a substantial body of authority to support the proposition at least that, in a case of genuine inadvertence, counsel's failure to object will not, of itself, necessarily be a bar to the raising of the fact of the admission
(Page 21)
- of inadmissible evidence as a ground of appeal. (I should, perhaps, also mention, in this respect, Crudgington v Cooney [1902] St R Qd 176 and Cahalane v Hop Kee [1925] St R Qd 73, both of which cases involved appeals from decisions given by Magistrates.)
Each such case will, as was said by Pring J in R v Branscombe (supra) depend upon its own circumstances albeit the court will always be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made by counsel at trial. (14)
72 In R v Wright [1999] 3 VR 355 Callaway JA said:
The cases on failure to take exception are legion. As Brooking J.A. observed in R v Gallagher at 681, they are usually concerned with failure to take exception to the charge but the principle is of more general application. His Honour referred to the following passage in the judgment of Yeldham J in R v Tripodina and Morabito (1988) 35 A. Crim. R. 183 at 191:
… it is the duty of counsel appearing at the trial to take objection to matters which, in their view, are irregular, or which might be unduly prejudicial to their client, and in particular to raise, in relation to the summing up, any matters which the trial judge may have overlooked or which, in their view, he has put erroneously. This will afford the judge an opportunity … of considering the propriety of the steps which he has proposed should be taken and of deciding whether or not, in relation to his summing up, there are matters which he should amend or retract, or additional matters which he should put. … Although it is true … that in a criminal trial the judge must be astute to secure for the accused a fair trial according to law, none the less, as has been pointed out on many occasions and over a great many years, the fact that no objection is taken to a procedural step adopted by the trial judge, or to matters put or omitted by him in his summing up, is cogent evidence indeed, in most cases, that counsel absorbed in the atmosphere of the trial saw no injustice or error in what was done. (360)
74 I have already made mention of some of the material which is contained in exhibit 29 and which was prejudicial to the interests of the appellant. The contents of exhibit 29 were duplicated within the Esanda file which became exhibit 39. In addition, exhibit 39 included documents
(Page 22)
- which contained a number of hearsay observations. For example, there is an entry which contends that the letter exhibit 17 'was a fake'. It is in the following terms:
SIGNIFICANT EVIDENCE THE LETTER WAS A FAKE AS IS A FINALISATION LETTER DOES NOT HAVE BPAY DETAILS AT THE BOTTOM (AS FURTHER PAYMENTS ARE NOT REQUIRED) AND FURTHER MORE THE BPAY DETAILS ON THIS PARTICULAR LETTER STATED THEY WERE FOR ACCOUNT NUMBER 611809896 THEREFORE A LETTER FOR THE OTHER CONTRACT HAS BEEN DOCTORED TO A FINALISATION LETTER FOR THIS CONTRACT. DETAILS FOR CONTENT AND FONT COULD HAVE BEEN EASILY FOUND ON PREVIOUS FINALISATION LETTERS THIS CUST HAS REC'D AS CUST HAS HAD SEVERAL CONTRACTS WITH ESANDA PREVIOUSLY.
76 There is another entry for 26 February 2002 which is hearsay in nature and prejudicial to the appellant. It is to the following effect:
>>received pho call from a 'tracey' advising that she has been receiving mail from us addressed to the dtr, however the dtr no longer lives at that address, she also advised that they have had debt collectors from other finance companies looking for him
- Below this entry there is also reference to the assets and liabilities of the appellant. There are entries for February-March 2002 which deal with a default judgment against the appellant, particulars of where he was working and advice received from a third party about the sale of a unit and the removal of Esanda's interest in it. In short, there is an abundance of information about the personal circumstances of the appellant, all of which appears to be hearsay and in many instances the expression of unknown opinion.
77 Of more concern is a letter within exhibit 39, apparently written by the appellant to Jeff Denton of Central Investigations which reads as follows:
Jeff Denton Arthur Heedes
Central Investigations PO Box 187
PO Box 149 Thornlie WA 6988
Bullcreek WA 6149
(Page 23)
- Wednesday 22nd August 2001
Re: Esanda Finance
Dear Jeff
Following your correspondence dated 9th August 2001 I have received today, I hereby respond.
Firstly, I refer to our telephone conversation of some 7 weeks ago. You were advised of a postal address your client Esanda could communicate to me. I have received no correspondence or notification that Esanda and I are at issue or any contracts we may have between us are in default or arrears.
Therefore I reject your suggestion that I am in default and have no intention in entertaining conversation with a third party bi-product about my personal details irrespective of your purported representation of Esanda.
FURTHERMORE you were warned about making threats towards my family and harassing them and still you persist.
Paying particular attention to section 338 of the criminal code, you do not have the intestinal fortitude, physical presence or the ability to FUCK WITH ME so if you go near them again I can either obtain a restraining order or I can enforce some street justice, which do you think I would prefer?
Perhaps you should be more concerned about protecting your own environment because of what I know about you, rather than making threats expressly or thinly veiled?
Would you prefer I send a copy of this to Esanda or will you handle it yourself?
78 The suggestion in this letter that the appellant might enforce 'some street justice' against Mr Denton and that he should be concerned about protecting himself was highly prejudicial to the trial of the appellant.
79 The transcript of the trial suggests that little attention was paid to the exact content of exhibit 39, either when it was tendered or afterwards. The addresses of counsel do not appear to have made any specific reference to the contents of the file. Further, there was no reference by the trial judge to the need for the jury to ensure that any hearsay material within it should not be used to the appellant's prejudice. There was no reference to the highly prejudicial letter written by the appellant to Mr Denton.
(Page 24)
80 At the close of counsel's addresses, the court adjourned. It was then approximately 3 pm on 15 July. The trial judge made reference to exhibit 39 in the following context:
If you will go into the jury room and if you want to take the exhibits with you - you have a huge exhibit there that came in at the very end that you might not have seen and I'm sure you haven't, meant to be the bundle of documents the accused received in April from Esanda so you might want to flick through those while you have a minute. I'll invite you to go into the jury room.
The trial judge's summing up
81 When the trial judge summed up to the jury, reference was made to Esanda records but without specific reference to exhibit 39:
Then the state says if you look further at this and remember the evidence of Mr Dropulich that it just cannot be true that anybody ever gave him a payout figure of 4 to 5 thousand dollars, when at that time, when you look at Esanda's records, there was this enormous amount of money owing, much greater than four, five thousand. I can't see it right now, the exact amount, but Mr Dropulich gave that evidence. So you consider all of that, ladies and gentlemen.
82 More specific reference was made in the passage that I have previously quoted. That reference needs to be seen in the context of the trial judge's directions. The directions at this point were concerned with the question of lies told by the appellant which were said to evidence a consciousness of guilt. A direction in accordance with Edwards v The Queen (1993) 178 CLR 193 was given and no complaint is made about that. The trial judge said:
The state says that he lied when he told you that he telephoned Esanda, or his accountant had, and obtained payout figures. The state says they're not there. He never telephoned Esanda. Finally, you remember when he was under cross examination he told the prosecutor on both counts that he had made lump sum payments against those vehicles back before his company went into liquidation and while the business was still operating he had made large lump sum payments and therefore believed that there was only 5 or 6 thousand owing on one and 4 or 5 thousand on the other.
The state again with those lump sum payments says if you look at the scratch pad it's clearly not true and I'm sure Mr Myers would say if you look in the Esanda files, which is that big document that came in at the end, there's just nothing there to show it. The state case would be that he's lied to you about those matters. (emphasis added)
(Page 25)
83 In this passage, the trial judge took upon herself to add to the prosecution case a contention that the Esanda file (exhibit 39) confirmed the prosecution contention that exhibits 20 and 29 contradicted the appellant's evidence in relation to his belief as to payout figures and the appellant had lied about that aspect of the case.
84 It was not the prosecution case that the Esanda files in themselves revealed that the appellant had lied.
85 The trial judge made no reference to the content of the Esanda file. Perhaps the trial judge had not had an opportunity to carefully consider it. It seems unlikely that she did, because it had been sent in with the jury during their afternoon adjournment.
86 In fact, nobody paid any attention to the prejudicial material contained within the Esanda file. Had the trial judge appreciated the nature of the prejudicial material within the file, her Honour may have directed the jury that they should avoid reaching any conclusion that the appellant was guilty of the offences alleged in consequence of prejudicial material contained within that file.
87 The trial judge should have informed the jury on this issue that they should determine the case against the appellant on the evidence which had been led and on the evidence alone. They should have been told to avoid reference to any hearsay material contained within the Esanda file which was unsubstantiated by sworn testimony. This was especially so in relation to the reference to the 'fake letter' and the letter from the appellant to Mr Denton in which threats of 'street justice' were made. The jury ought to have been told that they should not reason that the appellant was a person with a propensity to commit the crimes alleged by reason of his past record of default with Esanda. No such direction was given, nor was it sought.
Should the Esanda file have been tendered?
88 In my opinion, the Esanda file should never have been tendered at all. All that was required was that the appellant be referred to the file and asked whether that file contained the material which he had been seeking. He could then have been asked whether he had had access to it for at least a week prior to the trial and therefore had all relevant material to enable him to prepare for trial. The content of the file was otherwise irrelevant. Much of it was inadmissible.
(Page 26)
89 It was not to the point that exhibits 20 and 29 already contained much of what was contained within the Esanda file. Much of what is in exhibit 29 was also inadmissible. However, no objection was taken to it and there is no ground of appeal in relation to its admissibility.
90 Nevertheless, the Esanda file itself contained prejudicial material. In my opinion, its admission into evidence constituted a miscarriage of justice by reason of (1) the inadmissible hearsay material within it and (2) the material within it prejudicial to the interests of the appellant.
Cross-examination on name
91 I have already made reference to the fact that when the appellant was first cross-examined, he was asked about his true name. The relevant passage from the transcript of the proceedings is as follows:
Is your name today Arthur Samuel Heedes?---That's what I am charged with, yes.
Is that your name today?---Can you please clarify the question?
It's a simple question. Is your name today, your legal name today, Arthur Samuel Heedes?---You've asked for the legal name. No, it is not.
You're only entitled to go under your legal name, aren't you?---No, that's not correct.
All right, so what is your legal name?---It was changed to my birth name, which was Arturo Salvatoro Fazio.
The purpose of changing that name, was that to avoid creditors?---Absolutely not.
No? When did you change that name?---About 18 months ago.
92 It is not clear why the prosecutor saw fit to cross-examine the appellant in this way. Whether his correct name was Arthur Samuel Heedes, or Arturo Salvatoro Fazio appears to have had no relevance to the case whatever. The purpose of the questioning could only have been to impugn the appellant's character by putting to him that he had changed his name to avoid his creditors. That course was prohibited by s 8 of the Evidence Act 1906 (WA). Section 8(1)(e) of the Evidence Act provides that a person charged and called as a witness shall not be asked, and if asked, shall not be required to answer any question tending to show that he has committed or been convicted or been charged with any offence other than that wherewith he is charged or is of bad character unless certain circumstances apply. One of those is contained with s 8(1)(e)(ii);
(Page 27)
- namely, where he has personally, or by his advocate, asked questions of witnesses for the prosecution with a view to establishing his own character, or where the conduct of the defence is such as to involve imputations on the character of the prosecutor, or witnesses for the prosecution. If such imputations have been made, it is open for the prosecution to call evidence that a person is of bad character (emphasis added): s 8(1)(f) Evidence Act. There is an established role of practice that leave must be sought before such cross-examination.
93 In the event that an accused person, or his counsel, chooses to attack a prosecution witness to show their unreliability, or bad character generally, there remains a discretion to exclude evidence which would otherwise be admissible if the trial judge considers its prejudicial effect outweighs its probative value: Matthews v The Queen [1973] WAR 110, 113 (Jackson J):
[I]t is accepted in Selvey's case[Selvey v Director of Public Prosecutions [1970] AC 304] that there is a discretion to exclude evidence which has become admissible under s 8(1)(e) of the Evidence Act where the judge considers it would be unfair or unjust to the accused to admit it.
94 Questions as to the character of an accused person 'may be fraught with results which immeasurably outweigh the result of questions put by the defence and which make a fair trial of the accused person almost impossible': R v Jenkins (1945) 31 Cr App R 1, 15.
95 In the present case, counsel for the appellant did cross-examine a prosecution witness to establish bad character. Counsel for the appellant cross-examined Mr Navarro at trial in a manner which undoubtedly reflected upon his character. He was asked why, in the agreement to purchase the Ford Transit van, he had selected $17,800 as the purchase price rather than the true purchase price of $21,000. The following propositions were put to him:
You see you've said, 'The purchase price selected is $17,800.' What I'm suggesting to you is that you decided to write down the true purchase price of the vehicle, didn't you, for the purpose of transfer?---No. You have an option for fair market value and I valued the vehicle according to the red book at the time and I opted for 17,800.
What was the purchase price that you say you paid for the vehicle?---$21,000.
...
(Page 28)
- I put it to you that you wrote in that price as a selected price in order to avoid extra stamp duty?---I disagree. The price negotiated was $21,000. That's what Mr Heedes wanted for the vehicle. I believe he may have advertised up around the 22,000-odd. I still believe that I paid too much for this for a start.
...
I put it to you that when you put in that purchase price selected you knew you were being dishonest so far as the revenue is concerned?---I disagree.
96 Not content with this attack, counsel for the appellant in his address to the jury said:
You will recall my cross-examination of Mr Navarro where he would not have it, would he, that the $17,000 was put in for the purpose of not having to pay quite so much stamp duty. Well, experience tells us, doesn't it, and this is where juries know form time to time that people do sometimes put in documents to write it down a bit so you don't have to pay so much stamp duty. It's not the right thing to do, it's not the proper thing to do but it does happen.
97 There is therefore no doubt that counsel for the appellant made an attack on the character of a prosecution witness. The question still remained, however, whether if the prosecutor had made application (and he did not) for leave to cross-examine the appellant in relation to character, such leave would have been given. Even then, if leave had been given, only admissible evidence could have been called. The contents of the Esanda file did not constitute admissible evidence for that purpose, save for the letter from the appellant to Mr Denton. It seems to me unlikely that the trial judge would have granted leave to the prosecutor to cross-examine the appellant in relation to that letter. The prejudicial effect of it far outweighed any probative value that it had.
98 In any event, the matter is academic because no application was made for leave to cross-examine the appellant on the issue of character. The case was left in a situation where the appellant had been cross-examined on the basis that he had changed his name to avoid his creditors. This was a direct attack upon his character, and it was not authorised.
99 In Donnini v The Queen (1972) 128 CLR 114 the accused person was cross-examined at trial by the prosecutor about a change of name. He had been charged with robbery under arms, and illegally using a motor vehicle. At the time of the robbery, he lived in a flat which he rented from a Mrs Brading, to whom he was known as Michael Thomas. In
(Page 29)
- cross-examination at trial, he was pressed by the prosecutor as to his reason for assuming the name of Michael Thomas in his dealings with Mrs Brading. In answer to the questions, the accused revealed the fact that he had past criminal convictions. He said that one of the reasons for using a false name was 'the taxation'. He said he thought that they were 'on to him'.
100 The case turned on the directions that should have been given to the jury as to what they should make of evidence of bad character, particularly the evidence of prior convictions, where the only purpose of the admission of that evidence was to deny evidence of good character led for the accused. The appeal was dismissed because, in the circumstances of the case, the language used by the trial judge in his charge to the jury was sufficient to preclude the use of the evidence of prior convictions as evidence of propensity on the part of the accused person to commit the crimes with which he was charged.
101 Menzies J (130) said that no doubt the object of the prosecutor's cross-examination was to elicit that the accused had reason for using a false name that had nothing to do with his professed reasons; ie, taxation liability. His Honour said:
I am less sure, however, that the Crown Prosecutor's persistent questioning about the use of a false name did not amount to questioning to show that the accused was of bad character: ie that he was a man with a discreditable past. However, once the accused volunteered, as he did, evidence of his previous convictions, I think that the further questioning should be regarded as going to his credit rather than to his character. Accordingly, I do not consider that the questioning contravened s 399 [the equivalent of s 8(1)(e) of the Evidence Act]. (131)
102 In The Queen v Noll (Unreported, VSC, 0203/97, 8 October 1997) an application was made by the prosecutor to lead evidence that upon being intercepted by police the accused person gave a false name. The prosecution contended that the falsity of the name given was significant because had the accused given the name Noll it would have linked him to a co-accused. That was because a motor vehicle allegedly used in the commission of the offences with which the accused was charged had been found abandoned some distance from the crime scene. It was registered in the name of the co-offender's wife.
103 The accused gave the name Peter Bartollo to police. It was a name that he had used in the past as an alias. It was shown in police records. Coldrey J refused leave to lead evidence that the accused had given a false name. His Honour said:
(Page 30)
- In my view that factor [a reference to the existence of the name Bartollo in police records] effectively removes the probative value of this evidence. Moreover, in order to explain the use of that name, the accused may have to reveal the use of an alias, and further, that such alias had in the past been known to the police. These matters could create a considerable level of prejudice. (30 - 31)
104 These cases support the view that cross-examination of an accused person about changing his name will often lead to a result prejudicial to the accused. In Donnini's case, it brought about an admission by the accused that he had a criminal record. In Noll's case, it would have revealed the use of an alias which had, in the past, been known to police. In the present case, the cross-examination raised the question of the appellant changing his name so as to avoid his creditors. This created obvious prejudice.
The trial judge's directions on the appellant's name
105 When the trial judge came to charge the jury, reference was made to the issue, but in an unfortunate manner. Instead of the trial judge telling the jury that they should draw no adverse conclusion against the appellant from the question which was asked of him about avoiding his creditors, the trial judge aggravated the matter by saying (in the course of reading count 1 on the indictment):
Count 1 says:
Between 17 March 2000 and 31 March 2000 at Perth, Arthur Samuel Heedes -
and that's the name he's going by in the trial -
with intent to defraud by deceit or fraudulent means gained a benefit, namely $21,000 in money, for Arthur Samuel Heedes
106 Reference by the trial judge to 'that's the name he's going by in the trial' suggested that the trial judge herself thought that there was something in the fact that the appellant had changed his name.
107 What the trial judge should have told the jury was that they could not adopt any propensity reasoning to conclude that because the appellant had changed his name, he had done so to avoid creditors and that therefore he was the sort of person who would be likely to commit the offences of fraud with which he was charged.
108 An example of the required direction is to be found in R v Nylander [2003] SASC 191. There, the appellant, who was charged with armed
(Page 31)
- robbery, was stopped by police on a roadway and asked to give his name. He gave a false name. Other evidence at trial raised a suspicion that, at the time the appellant was approached by police, he was about to embark on an armed robbery or some other criminal activity. If this was so, it provided a very powerful and obvious alternative motive for the appellant to give a false name to the police in order to conceal from them his true identity. In the course of his judgment, Bleby J (with whom Prior and Sulan JJ agreed) said at [39]:
The jury could have been warned that they might think that the evidence suggested that the appellant, at the time he was on the median strip, was up to no good. They could be told that if they were tempted to think that way, they should not adopt any propensity reasoning to conclude that he was involved in the four armed robberies in question. That would have enabled the Judge then to have reminded the jury that there might well, on the evidence, have been another powerful motive for the appellant to use the false name when he did, and thus to have given a full and proper direction relating to the use of the false name as evidence of consciousness of guilt.
Conclusion
110 I am of the opinion that the convictions of the appellant constituted a miscarriage of justice by reason of:
(a) the admission into evidence of the Esanda file (exhibit 39) with the prejudicial effect that it must have had;
(b) the cross-examination of the appellant in relation to his change of name and the suggestion that he had changed his name to avoid his creditors;
(c) the reference by the trial judge to the appellant 'going by' a particular name in the course of his trial;
(d) the trial judge directing the jury that material in the Esanda file might reveal that the appellant was lying in relation to his evidence, where it was not part of the prosecution case that there were any lies contained within that material, or indeed any lies that constituted a consciousness of guilt.
111 In my opinion, the combination of these four factors constituted such procedural irregularities which amounted to such a serious breach of the presuppositions of the trial process as to deny the application of s 30(4) of the Criminal Appeals Act 2004 (see Weiss v The Queen [2005] HCA 81;
(Page 32)
- (2005) 224 CLR 300, (46) (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ). See also Gately v The Queen [2007] HCA 55 [109] (Heydon J).
112 In Gassy v The Queen [2008] HCA 18, Gummow and Hayne JJ at [33] - [34] warned against use of the words 'such a departure from the essential requirements of the law that it goes to the root of the proceedings'; or 'fundamental' in this context, indicating rather that the statutory question is whether the court considers that 'no substantial miscarriage of justice has actually occurred'. (See s 30(4) Criminal Appeals Act.)
113 Gummow and Hayne JJ said at [33] - [34] that the oft quoted passage in Wilde v The Queen (1988) 164 CLR 365 at 373 ('such a departure from the essential requirements of the law that it goes to the root of the proceedings') is a description in words other than the statutory words of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. In my opinion, the present case is one in which it cannot be concluded that there has been no substantial miscarriage of justice.
Should there be a retrial?
114 Ordinarily, the errors revealed by the appellant's grounds of appeal (as reformulated by the court) would necessitate a retrial. In this case, however, the prosecution very fairly stated that if the appeal against conviction was upheld on the grounds which the court had indicated were live before it, the State would not ask that the appellant be retried. The respondent's concession in this regard is not determinative of the matter, but it is an important factor.
115 By s 30(5) of the Criminal Appeals Act, the court may, if it allows an appeal against conviction, set aside the conviction or convictions and may (inter alia) order a new trial or enter a judgment or judgments of acquittal.
116 In Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285, Kirby J at [79] pointed out that although the court has the power to grant a new trial of a criminal proceeding, it is not obliged to do so. It has a discretion and a discretion which must be exercised in a principled fashion. At [80] - [81] Kirby J said:
An important consideration favouring the ordering of a new trial in such circumstances is the fact that, by doing so, the Court discharges its principal functions as an appellate court. It identifies any legal error. It quashes the judgment or orders infected by that error. It vindicates the law
(Page 33)
- by its order permitting a retrial when the error will not presumably be repeated. Such order also respects the proper functions of the trial court, including the jury (where applicable), as the decision-maker resolving disputed matters of fact in serious criminal cases where guilt is contested. It leaves that decision-maker, properly instructed, to bring in the verdict that leads to conviction or acquittal. It avoids overreaching the functions of the appellate court. It maintains the divide between the respective powers and responsibilities of the Executive Government, to decide upon the prosecution of criminal offences (including by way of a repeated prosecution at a second trial) (cf Stanoevski v The Queen (2001) 202 CLR 115 at 130 [61]), and of a court, whose functions ordinarily arise in criminal matters only after the decision to prosecute (or reprosecute) is taken.
117 Kirby J provided examples of instances in which a new trial was not ordered:
Instances where a new trial is not ordered: There are certain instances where this Court, in the exercise of its judicial power, has refrained from ordering a retrial. The cases include:
• where the evidence adduced at the first trial did not, and could not, as a matter of law, prove the offence charged against the appellant (Crampton v The Queen (2000) 206 CLR 161);
• where the only basis upon which the prosecution could succeed at a new trial would be by propounding a different case from that presented at the first trial, permitting which would constitute a serious injustice to the accused. This Court has said 'it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case' (Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630);
• where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial (Parker v The Queen (1997) 186 CLR 494 at 520, 538);
• where it is shown that the appellant, who succeeds in the appeal, has served the custodial part of his sentence (Parker v The Queen (1997) 186 CLR 494 at 520) and a fortiori where an appeal has been brought by the prosecution against that sentence but has been rejected ((Parker v The Queen (1997) 186 CLR 494 at 538-539). Even more powerful will be the case where the successful appellant can show that he or she has served the entire sentence so that, if a second trial were had, it could not result in the practical imposition of any additional, or other, punishment upon the appellant. Sometimes this latter consideration will be subject to a possible countervailing need to order a new trial to vindicate reasons in addition to the punishment of the appellant. Thus, where the
- successful appellant is a legal practitioner, or some other person for whom a conviction is critical for legal reasons, an order for a retrial may be made, so as to allow the prosecuting authority to decide whether larger considerations of the public interest require a fresh determination of the guilt of the appellant of the charge that miscarried for legal error at the first trial (MacKenzie v The Queen (1996) 190 CLR 348 at 376-377; Stanoevski v The Queen (2001) 202 CLR 115 at 128 [51], 130 [61] ).
- Other considerations that may be relevant include:
• whether there has already been more than one earlier trial;
• whether, having regard to the venue, publicity and errors in the first trial it would be impossible to secure a fair retrial of the accused in any venue actually available (Tuckiar v The King (1934) 52 CLR 335 at 347, 355);
• whether the intervening death of witnesses could make an order for a retrial manifestly unjust or oppressive to the appellant;
• whether a retrial would, in the circumstances, impose unacceptable trauma and distress on witnesses, unwarranted by the alleged offence and the prospects of conviction (cf Longman (1989) 168 CLR 79 at 109; Crofts v The Queen (1996) 186 CLR 427 at 452-453; KBT v The Queen (1997) 191 CLR 417 at 438);
• whether a supervening change of the criminal law, abolishing the offence with which the appellant was charged, might make a retrial seriously unjust or oppressive (cf R v Stringer (2000) 116 A Crim R 198 at 221-222 [89]-[91], 226 [108], 228-229 [116]-[118] (a case of an application for a permanent stay on the basis of a supervening change of the law));
• whether the age, mental or physical condition of the appellant are such that they would make a retrial clearly unjust in the circumstances; and
• whether the prosecution indicates that it does not seek an order for a retrial (Griffiths v The Queen (1994) 69 ALJR 77; 125 ALR 545). [82] - [83]
118 Instances particularly relevant to the present case are:
• where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial [Parker v The Queen (1997) 186 CLR 494 at 520, 538];
(Page 35)
- • where it is shown that the appellant, who succeeds in the appeal, has served the custodial part of his sentence [Parker v The Queen (1997) 186 CLR 494 at 520]
...
• whether the prosecution indicates that it does not seek an order for a retrial [Griffiths v The Queen (1994) 69 ALJR 77; 125 ALR 545].
119 In the present case, the matters complained of occurred between seven and eight years ago. A considerable period of time has elapsed. Further, the appellant, who was sentenced to 12 months' imprisonment, served approximately 3 1/2 months of that term before being released on bail by Roberts-Smith JA on 12 December 2005. The appellant would have been eligible for release on parole after serving 6 months of his sentence.
120 In these circumstances, I do not consider that a retrial is necessary and I would instead quash the convictions of the appellant and enter verdicts of acquittal in relation to each of the counts on the indictment.
Appeal against sentence
121 It is strictly unnecessary to consider the grounds of appeal against sentence, but as the question of sentence has some relevance to the decision not to grant a retrial I will deal with the issue.
122 The grounds of appeal against sentence primarily contend that the sentencing judge ought to have imposed a sentence of suspended imprisonment rather than one of imprisonment to be served immediately.
Submissions on sentence after trial
123 The submissions in relation to sentence were taken on 2 September 2005. Counsel for the appellant made a lengthy plea, in which particular stress was placed upon the medical condition of the appellant's de facto. She had suffered breast cancer and had a terminal condition. She was actually working, but required considerable assistance. The appellant was her carer.
124 Counsel for the appellant also placed emphasis upon the fact that the appellant had made restitution to Messrs Navarro and Bailey in the sum of $6,000 and $25,900 respectively. Payments had been made within the preceding few days. Counsel for the appellant stated that the amounts paid were those which were referred to in the statement of material facts
(Page 36)
- which had only recently been received. There had been no application or request made for restitution.
125 Counsel for the appellant submitted to the sentencing judge that the appellant had shown remorse towards the two victims of the offences, although it was true that he had not expressed remorse in relation to Esanda.
126 The sentencing judge was unimpressed with the remorse claimed, saying:
YEATS DCJ: But it was such a blatant thing to do. It's a bit late to be sorry for what he did when - that's where it just was a painful trial, Mr Bayly, when it was so obvious what he had done and intentionally done and wilfully done and the jury had to look at that and they were satisfied beyond reasonable doubt he intended to defraud these two men.
127 Counsel concluded his submissions by contending that the amount by which the victims had been defrauded was not such as to demand a sentence of imprisonment. In the alternative, he submitted that if a sentence of imprisonment was necessary, consideration could be given to its suspension. His submissions were as follows:
Can I just say in relation to the matter that a fraud of $30,000 in circumstances where the person who has defrauded has a record that Mr Heedes has, would often not attract, in my respectful submission, a term of imprisonment. It's not by today's standards a huge amount of money. I understand it's a lot of money for the complainants but in terms of matters that come before these courts - and I suppose one has to put (indistinct) fraud in some kind of category compared with others - it's not a huge amount of money. Those moneys have now been repaid.
In my respectful submission, having regard to all of that, a term of imprisonment would not necessarily be the outcome in Mr Heedes' case. There are alternatives. If your Honour thought that the term of imprisonment was appropriate, then in my respectful submission your Honour could give consideration to suspending it. Of course one possibility would be, given that we now have a situation where the complainants are seeking further moneys, to place him on some kind of community based order with the intention that some form of repayment be put into place in respect to those damages which are eventually proved that he should be responsible for in relation to this matter to ensure that the complainants get paid and I am sure that they would be happy about that.
128 The sentencing judge then asked whether the appellant was in a position to pay a fine. Counsel for the appellant took instructions and then revealed that the appellant could pay a moderate fine. He said that
(Page 37)
- because the appellant had employment, he could pay off a fine if it was thought appropriate. There was then discussion about imprisonment in default of payment of a fine and the sentencing judge responded, 'That's what I was thinking'. She added, 'That's what I was thinking of doing'.
129 In a further comment the sentencing judge said:
YEATS DCJ: But when you have a fraud of this size the question is whether you get to imprisonment at all.
BAYLY, MR: Yes.
130 Counsel for the prosecution then submitted that the seriousness of the offences committed by the appellant was such that only imprisonment was justified and the offences required immediate imprisonment. This was a different submission from that which had been made by the prosecutor at trial. The prosecutor at trial had observed upon the application for bail at the conclusion of the trial:
YEATS DCJ: No, I can't punish him for that. The offences he has committed are serious.
MYERS, MR: Enough to warrant a gaol sentence but whether it's the only - an immediate - one immediately served is the only possible sentence - I'm not sure that can be said, your Honour, but it certainly is an option.
131 The sentencing judge pointed out to the prosecutor who made the sentencing submissions that his submissions appeared to be different from those which were put at the conclusion of the trial. Counsel responded that he interpreted the trial prosecutor's words to mean that immediate imprisonment was open.
132 During the course of the prosecutor's submissions, the sentencing judge made an observation which rather suggested that she was considering a sentence other than one of imprisonment to be served immediately. She said:
YEATS DCJ: It's just on the cusp between civil and criminal and, as Mr Bayly rightly says, paying back the money goes a long way.
133 The sentencing judge took time to consider the matter and returned to court approximately an hour after the submissions had been made.
Sentencing comments
134 The sentencing judge began by detailing the circumstances of the offences. It is unnecessary to repeat those observations.
(Page 38)
135 The sentencing judge was unimpressed with the appellant. She described his behaviour in giving evidence (when he apparently held a Bible or book of scriptures prominently in his left hand) to be 'completely disgraceful'.
136 Her Honour made reference to matters personal to the appellant, including the fact that he was 41 years of age, had an extensive record of convictions mostly for driving offences, but also in 1992, convictions for four counts of obtaining benefits not payable under Commonwealth legislation. There was also a conviction in 1997 for wilfully misleading a police officer. Nevertheless, the sentencing judge accepted that in terms of the offences for which the appellant was before the court, he did not have a serious prior record.
137 Reference was made by the sentencing judge to a pre-sentence report and psychological report. Her Honour said she was disappointed to learn from their contents that the appellant showed 'no real remorse' and continued to lie about the offences, calling them non-intentional, and alleging that he was unaware that the vehicles were encumbered and only found out that they were when he was charged. The sentencing judge considered these statements to be lies and she categorised the appellant as a dishonest person 'who cannot seem to help himself. … He lies when it suits him'.
138 The sentencing judge took account of the fact that the appellant's partner of 13 years was ill with terminal breast cancer. She noted that this was a great tragedy in the appellant's life, but considered that he had done his case no good 'by his attempts to use that tragedy for his own purposes'. In this respect, the sentencing judge made reference to the letter which she had received after the first day of trial in which it was indicated that the appellant would not be coming to court because he had been in hospital all night with his ill partner. Her Honour rejected any mitigation on the basis that the appellant was the sole carer of his partner.
139 The sentencing judge noted that the appellant had 'made some compensation' and indicated that this matter would be taken into account in mitigation. (In fact, it appears that complete restitution had been made to the two victims of the offences.)
140 The sentencing judge accepted that the appellant's business had collapsed and described the appellant as 'his own worst enemy'. She specifically discounted any question of remorse as a mitigatory factor. The offences were described as well planned frauds on two vulnerable
(Page 39)
- members of the community, with a total loss of nearly $47,000 (thus explaining why her Honour considered that something less than full compensation had been made). The sentencing judge accepted that there can be cases of fraud involving smaller amounts of money which are not so serious as to require imprisonment, but considered that this was a case in which the only appropriate sentence was one of immediate imprisonment. Her Honour added:
Because of the size of the frauds I accept that the sentences required need not be lengthy. It is the fact of going to prison for committing intentional frauds of this nature and this size that must be punished in this way. In each case I would have imposed a sentence of nine months' imprisonment but I reduce that to six months' imprisonment to take account of the changes in our sentencing laws. I order that the two sentences of six months' imprisonment be served cumulatively on each other making a total sentence of 12 months' imprisonment.
I order that the offender be eligible for parole and I order that the sentence commence on 29 August 2005 to take account of the four days this offender spent in custody after his trial.
141 The real question in relation to the appeal against sentence is whether a sentence of suspended imprisonment was open to be imposed. If it was, it had to be imposed.
142 It is clear that the sentencing judge appreciated that a sentence of suspended imprisonment was one of the options open. A submission had been made by counsel for the appellant that it was one of the dispositions which was open. It would appear, however, that the sentencing judge concluded (although she did not say so) that the seriousness of the offences were such that only imprisonment to be served immediately was open.
143 It was not necessary for the sentencing judge to specifically advert in her sentencing comments to the question of suspension. It is clear enough that when her Honour said 'I am satisfied that the only appropriate sentences are sentences of immediate imprisonment' her Honour was foreclosing the prospect of any suspended sentence.
144 In Newton v The State of Western Australia [2006] WASCA 247, Steytler P indicated that although it is ordinarily desirable to give express consideration to the question whether a suspended term of imprisonment should have been imposed, it may be clear from the circumstances of the
(Page 40)
- case that the sentencing judge gave consideration to that aspect. His Honour said:
[I]t is apparent from the transcript of the sentencing proceedings that, immediately prior to sentencing the appellant, the sentencing Judge engaged in some debate with the appellant's counsel as regards the question whether a conditional suspended sentence should be imposed. It is plain from what was said in the course of that debate that she considered that the offending was too serious to justify an outcome of that kind. While she did not say this in the course of her abbreviated sentencing remarks, it is plain that she adhered to that opinion. She said that the offending was 'extremely serious', that the most important thing was general deterrence and that, notwithstanding that the sentencing exercise had been 'very difficult', she did not believe that she had any other choice than to impose a sentence of immediate imprisonment. In the circumstances, and accepting that the scheme set up by the Sentencing Act 1995 (WA) requires that a court be positively satisfied that the option of suspending imprisonment is not appropriate before it can impose a term of immediate imprisonment (see Duong v The State of Western Australia [2006] WASCA 110 at [12], [42]; Dinsdale v R (2000) 202 CLR 321 at [13], [15]), and accepting also that it is ordinarily desirable to give express consideration to this question, there was, in the circumstances of this case, no requirement for the sentencing Judge to say more than she did. [10]
146 Counsel at the hearing of this appeal conceded that it was somewhat puzzling that the sentences which were ultimately imposed took the form that they did. Nevertheless, counsel for the respondent contended that the sentences were within range. He relied in particular upon Skipworth v The State of Western Australia [2008] WASCA 64 [47] - [50] (Pullin JA) where there is reference to sentences in a number of cases which involved fraud, attempted fraud, or forging and uttering (with other related charges in some cases). Pullin JA noted [48] that suspended sentences were ordered in only one case, that being Deville v The State of Western Australia [2004] WASCA 264. It was a case of 23 fraud offences which involved approximately $102,000. The offences had been committed about five years before the offender was indicted. He had no prior convictions and had undertaken significant rehabilitation before
(Page 41)
- sentencing, establishing himself in business and undertaking to repay the money involved. In all other cases, sentences of imprisonment were imposed. They varied enormously, the main group of offences revealing a range of aggregate sentences of between 1 year 4 months and 6 years 8 months.
147 Clearly, there is no tariff for offences of this nature. The range to which reference is made by Pullin JA in Skipworth is of limited value. There will be cases in which sentences of suspended imprisonment are appropriate for frauds of the nature committed by the appellant in this case.
148 Having regard to the fact that the appellant:
(a) had apologised and shown remorse towards the victim of the offences;
(b) had made payments of restitution to each of the victims in the amounts for which they were out of pocket;
(c) had no prior convictions of relevance to the offences in question;
(d) had extenuating personal circumstances in relation to his de facto wife's illness; and
(e) had committed offences in relation to which at most the amount involved was $47,000,
it seems to me that a sentence of suspended imprisonment was clearly an open disposition. Had I not allowed the appeal against conviction and entered verdicts of acquittal I would have allowed the appeal against sentence and varied the sentences imposed so as to suspend each of the sentences for a period of 12 months. As they dated from 29 August 2005 that period would have expired.
149 MURRAY AJA: I have had the advantage of reading in draft the reasons now published by Miller JA. I agree with them and with the orders proposed in relation to the appeal against the convictions.
150 Were it necessary to do so, I too would have allowed the appeal against sentence and would have substituted sentences of suspended imprisonment for the terms ordered by her Honour, the trial judge, to be immediately served.
3
34
2