Ohl v Tasmania
[2019] TASSC 24
•4 June 2019
[2019] TASSC 24
COURT: SUPREME COURT OF TASMANIA
CITATION: Ohl v Tasmania [2019] TASSC 24
PARTIES: OHL, Normal Edward
v
STATE OF TASMANIA
FILE NO: 3034/2016
DELIVERED ON: 4 June 2019
DELIVERED AT: Hobart
HEARING DATES: 18 February, 7 March 2019
JUDGMENT OF: Marshall AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Procedure – Notices of appeal – Time for appeal and extension thereof – Two years and seven months out of time – No reasonable explanation for delay of that magnitude – No merit in grounds of fresh evidence and incompetence of counsel.
Aust Dig Criminal Law [3555]
Criminal Law – Appeal and new trial – Particular grounds of appeal – Fresh evidence – Availability at trial – Evidence in possession of Crown not disclosed to defence – Fresh evidence said to be absence of tendered documents on a disc – Absence of material not sufficient to constitute fresh evidence – Not probable appeal would succeed.
Smillie v Tasmania [2017] TASCCA 26, considered.
Aust Dig Criminal Law [3498]
REPRESENTATION:
Counsel:
Applicant: G Melick SC
Respondent: J Hartnett
Solicitors:
Applicant: Ray Broomhall
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASSC 24
Number of paragraphs: 37
Serial No 24/2019
File No 3034/2016
NORMAN EDWARD OHL v STATE OF TASMANIA
REASONS FOR JUDGMENT MARSHALL AJ
4 June 2019
Mr Norman Ohl ("the applicant") has applied for an extension of time within which an application for leave to appeal against a conviction may be made pursuant to s 407(5) of the Criminal Code. The application may be heard by a single judge: see s 418(1)(a) of the Code.
On 17 February 2014, Tennent J imposed a conviction on the applicant on two counts of dishonestly acquiring a financial advantage contrary to s 252A of the Code. The applicant was sentenced to 14 months' imprisonment with effect from 14 February 2014, with six months suspended. The sentence was increased by the Court of Criminal Appeal (Director of Public Prosecutions (Acting) v Ohl [2014] TASCCA 4) to three years and three months' imprisonment with effect from 14 February 2014. Special leave to appeal from the judgment of the Court of Criminal Appeal was refused by the High Court on 9 April 2015: see Ohl v The Acting Director of Public Prosecutions [2015] HCASL 57.
The application for leave to appeal was filed on 18 October 2016. This was two years, seven months and two days after the expiry of the time limited to appeal from his conviction: s 407(1). Mr Ohl understood he had 14 days to appeal his conviction, but accepted advice from his then lawyers that he had no grounds of appeal. He said that he knew at the time of his conviction that five documents relied on by the prosecution to convict him were forgeries. He also said that he knew at the time that his counsel at the trial was incompetent.
The principles to be applied when considering an application for an extension of time within which to seek leave to appeal are well settled and are set out in R v Davis [2003] VSCA 173, 6 VR 538 at [5] where Winneke ACJ said:
"[5] The bases upon which this Court will grant an application to extend time for leave to appeal against conviction and/or sentence are not in doubt. Those bases were conveniently summarised by Gowans, J in the case of Darby and encapsulated in the reasons for judgment of the Full Court in the case of O'Keefe. They have been followed in this Court subsequently in numerous applications, including R v Martin, R v Craker and other cases. As Gowans, J said in the case of Darby:
'The principles which govern an application for extension of time are as follows:
(1) the prescription by the statute of the time limit for giving notice is intended to secure finality, and compliance is intended to be required in the ordinary case;
(2) extension of the time is a matter for discretion of the Court, and the applicant must put material and considerations before the Court which will persuade it to exercise its discretion in favour of an extension;
(3) rigid restrictions cannot be imposed on the exercise of discretion, but in general the Court will require special and substantial reasons for extending the time;
(4) the longer the time which elapses since the expiration of the statutory period and the more the changes that have taken place in the meantime, the more exceptional will the circumstances put before the Court have to be;
(5) it is the practice of the Court not to grant any considerable extension of time unless it is satisfied that there are such merits in the proposed appeal that it would probably succeed;
(6) a reasonably satisfactory account of the failure to comply with the statutory requirements needs to be forthcoming.'
In the case of O'Keefe, the Court, having referred to those principles set forth by Gowans, J, went on (at p5 of the report):
'An applicant who has been dilatory or has acted in such a way as to indicate that he does not intend to appeal has small, if any, claim to the exercise of the discretion of the Court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the Court has not been to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed'."
The charges
In Director of Public Prosecutions (Acting) v Ohl (above), Blow CJ referred to the two charges which Mr Ohl faced at trial and said, at [2]-[5] as follows:
"[2] The two charges related to two separate fraudulent transactions, with different victims. Count 1 concerned the acquisition of a property in Rokeby. The respondent operated a company named Let's Fix It Pty Ltd. A professional relationship and a friendship developed between the respondent and a Mr Fraser. Mr Fraser had a friend named Nanda. Mr Fraser, Mr Nanda and the respondent became involved in the purchase of some commercial properties. The three men set up a company named RKN Investments Pty Ltd. In July 2004 the three men agreed that that company would purchase the Rokeby property as an investment. On 29 July 2004 the respondent signed a contract for the purchase of the property for $250,000. In that contract he 'and or nominee' was named as the purchaser. Mr Fraser gave evidence at the trial that the respondent told him in July 2004 that the purchase price was $350,000; that he did not see the contract at that stage; that the settlement date was 29 September; and that, as the settlement date approached, the respondent told him and Mr Nanda that the vendors would like two separate contracts, one for $250,000 for the building and the land, and one for $100,000 plus $10,000 GST for the chattels, equipment and fittings. Mr Fraser gave evidence that the respondent subsequently told him that he had paid the sum of $110,000 for the goods and chattels, financed by increasing his overdraft. No such payment had been made but the respondent obtained reimbursement. A cheque for $110,000 dated 1 February 2005 was drawn on the bank account of RKN Investments Pty Ltd in favour of Let's Fix It as trustee for the Ohl Family Trust. That cheque was signed by Mr Fraser and the respondent, taken by the respondent, and evidently presented and honoured. The verdict of the jury on count 1 indicates that they were satisfied beyond reasonable doubt that the respondent thereby committed the crime of dishonestly acquiring a financial advantage.
[3] The particulars of count 1 were stated in the indictment as follows:
'NORMAN EDWARD OHL at Hobart in Tasmania between the 1st day of July 2004 and the 22nd day of September 2006 by deception, to wit falsely represented to Kevin Fraser and Raj Nanda and/or RKN Investments Pty Ltd, the purchase price and terms of a contract for the sale of property and chattels situated at 27 South Arm Road, Rokeby dishonestly acquired for himself and/or Let's Fix It Pty Ltd and/or the Ohl Family Trust a financial advantage, namely the crediting of Let's Fix It Pty Ltd and/or the Ohl Family Trust the sum of $110,000.'
[4] The second charge concerned a proposal to purchase and develop a property in Chapel Street, Glenorchy. The respondent's tax accountant, Mr Demeyer, the respondent, and two other investors formed a syndicate to purchase and develop the property. The purchase price of the property, including chattels, was $1.42 million. The syndicate members agreed that they would purchase the property with mortgage finance from a bank; that Mr Demeyer would contribute $100,000; that another investor would contribute $100,000; and that a third investor would contribute $200,000. The respondent told the others that he had purchased the plant and equipment at the site for $210,000 under a separate contract. That was untrue. The syndicate members agreed to form a unit trust, named the Chapel Street Unit Trust, with a company named Chapel Industries Pty Ltd as its trustee, and that the respondent would receive a one third interest in the unit trust in return for his asserted contribution of $210,000. In addition, $90,000 from the funds of the syndicate was paid to the respondent, with the concurrence of the syndicate members, for work that he said he had done in obtaining tenants for the premises and attending to 'due diligence' requirements.
[5] The jury's verdict of guilty on count 2 relates to the respondent's acquisition of his units in the unit trust and the payment of $90,000. It indicates that they were satisfied beyond reasonable doubt that he committed the crime of dishonestly acquiring a financial advantage by obtaining both the units and the payment of $90,000. ...".
Applicant's submissions
Counsel for the applicant submitted that at trial there was never appropriate disclosure made by the Crown. Counsel said that the documents relied on by the Crown were, in the main, selected documents from the hard drive of Mr Ohl's computer. Mr Ohl relied on the evidence of a computer expert, Dr Schatz, who deposed that many of the files on a disc copied from Mr Ohl's hard drive were copied or created four months after Mr Ohl ceased to be engaged in business.
Counsel for Mr Ohl said that two critical pieces of evidence, being two invoices allegedly created by Mr Ohl, were not on the disc, and the question remains as to who created them. Counsel said that it took Mr Ohl three years to obtain a copy of the disc.
The essence of Mr Ohl's complaint is that the disc from which evidence in the trial was obtained was potentially altered or contaminated and did not contain two of the critical documents at trial. Counsel said that the defence could have been conducted differently had Mr Ohl known that the two critical documents were not extracted from his hard drive. Those documents were Exhibits P13 and P16.
Exhibit P13 was a copy of an invoice from Mr Ohl's company (Let's Fix It) to Chapel Industrial dated 14 February 2005. Counsel said it was a critical document because it was created out of sequence. This is because it was backdated and sent on or about 12 April 2006 in response to Exhibit P12 which was a request by Mr Demeyer for an invoice for the purchase of items to the value of $210,000.
Exhibit P16 was a tax invoice dated 24 March 2005 (with American dating of 3/24/2005) for Mr Ohl's due diligence fee of $90,000. This document was not amongst the Crown papers on disclosure. However it does not appear to relate to anything in dispute. There is no dispute that Mr Ohl claimed a due diligence fee of $90,000. The suggestion that Mr Demeyer (an American) authored this invoice was not put to Mr Demeyer at trial. There appeared to be no reason to do so as it was not in contest that Mr Ohl claimed a due diligence fee. The critical issue was whether he was entitled to such a fee.
Counsel for Mr Ohl submitted that there was evidence available to Mr Ohl which he could not have attained with due diligence and was cogent and relevant. The evidence is said to be the copy of the disc which does not contain Exhibits P13 and P16.
Mr Ohl, in seeking an extension of time within which to seek leave to appeal, also relies on the incompetence of his counsel. Mr Ohl was represented by Mr Barker SC at trial, with Mr Stevens acting as junior counsel and instructor. Mr Ohl said that he passed on certain instructions to Mr Stevens which were not complied with by Mr Barker. Counsel for Mr Ohl also referred to Mr Barker's failure to cross-examine Mr Demeyer on a prior inconsistent statement. Counsel also referred to Mr Barker's failure to raise the fact that a Crown assertion as to the existence of a tax invoice dated 2 February 2005 was wrong. Counsel noted that Mr Ohl had prepared voluminous comments for his legal advisors, many of which were not taken up by Mr Barker.
Crown submissions
Counsel for the Crown submitted that there was no reasonable explanation for the delay in filing this application. Counsel referred to Mr Ohl's engagement in the appeal process right up to seeking special leave to appeal in the High Court. Counsel observed that it was known to Mr Ohl at trial that his computer had been stolen and that it was open to him to challenge documents relied on by the Crown at trial. Counsel noted that Mr Ohl's detailed instructions to his lawyers at trial raised no issue about his computer being stolen.
Significantly, counsel submitted that Mr Ohl had not demonstrated that there was any material on the disc, taken together with other evidence at trial, that raised a reasonable doubt as to Mr Ohl's guilt. There is no evidence, counsel contended, which could be described as fresh.
Counsel for the Crown referred to the transcript of the trial where Mr Barker said he wanted to take instructions regarding Exhibit P16 and that ultimately the exhibit was tendered without objection. The case at trial for Mr Ohl appeared to be that he had in fact sought a due diligence fee but did so at the urging of Mr Demeyer. This was rejected by the jury.
Counsel for the Crown noted that the documents tendered at trial were produced either by their author or their recipient, rather than from the hard drive of a computer. Counsel said that there is no evidence that Exhibits P13 and P16 were forgeries. Counsel contended it did not require the production of a disc to make that assertion.
In answer to Mr Ohl's complaint about the modification of material on his computer after it was stolen, counsel for the Crown claimed that when a file is opened or archived on a computer, it appears as if it has been modified. Downloading of a document can result in an appearance of modification, counsel observed. The modification of the files which were on Mr Ohl's computer after he left the business, counsel contends, do not prove that any documents have been forged.
Finally, counsel for the Crown rejected the submission that Mr Ohl was denied a fair trial by incompetent counsel. Counsel pointed to the re-appointment by Mr Ohl of the counsel at trial to conduct his defence of the appeal against sentence by the Crown. Counsel submitted that one could draw a clear and reasonable inference that Mr Ohl was content with the way his trial had been conducted.
Consideration
Time limits, in the ordinary course, are expected to be complied with. The onus is on the applicant to persuade the Court to exercise its discretion in his favour. In the usual case special and substantial reasons will be required for extending time. The greater length of time since the expiry of the time limit imposed, the more exceptional the reasons for extending time will be required to be. A proposed extension for a considerable period of time will not usually be given unless it is likely that the proposed appeal will succeed.
For the reasons which follow, the Court is of the view that the application for an extension of time in this case should be rejected.
The Court rejects the submission that there was never appropriate disclosure made by the Crown. All documents tendered at trial, with the exception of Exhibit P16, were disclosed prior to trial. Mr Barker took instructions on Exhibit P16 and there was no objection to its tender. There is no evidence of the existence of any further critical document which was not disclosed by the Crown prior to trial and which should have been disclosed to Mr Ohl.
The Court notes counsel's submissions, as recorded above, about Mr Ohl's attempts to obtain a copy of the relevant computer disc. However this application was commenced prior to Mr Ohl being given access to the disc. Mr Ohl did not need the time required to obtain a copy of the disc in order to make this application.
Counsel for Mr Ohl relied on the fact that Exhibits P13 and P16 were not on the disc and stated that a real question remained as to who created them. However it was open to Mr Ohl at trial to challenge the authorship of Exhibits P13 and P16. He gave no instructions to his counsel to do so. Both exhibits were tendered without objection. Counsel for Mr Ohl, on this application, has challenged the authorship of P16, referring to the American dating system on it as indicating authorship by Mr Demeyer. It is important, however, to focus on what P16 is. It is an invoice for a due diligence fee. There was no dispute that Mr Ohl sought a due diligence fee in respect of the relevant transaction. The only dispute was whether he did so at Mr Demeyer's suggestion. That was a matter appropriate for the jury to consider at trial.
Exhibit P13 is a tax invoice on the letterhead of one of Mr Ohl's businesses, Let's Fix It. It does not have American dating. Mr Ohl's counsel considers it suspect because it is out of sequence with surrounding events. However, on the evidence at trial it appears to have been backdated and written on or about 12 April 2006 in response to a request by Mr Demeyer for such an invoice. There is nothing particularly suspicious about Exhibit P13.
It is difficult to see how the obtaining of the copy of the disc (being a disc which did not contain P13 and P16) can be said to be evidence which was not capable of being attained with due diligence. But even if that were so, it does not mean that those exhibits were necessarily created by someone other than Mr Ohl. From Mr Ohl's point of view, at most, they were equally consistent with having been produced by him at Mr Demeyer's urging.
The application in this matter was filed over two years and seven months out of time. This means that the Court is required to consider whether the findings of guilt by the jury are attended with such doubt as to make it probable that the appeal will succeed. Had the jury received an argument that Exhibits P13 and P16 were forgeries, it cannot be said that it would have cast doubt on the guilt of Mr Ohl. There was evidence from Mr Demeyer that Mr Ohl sought a due diligence fee. There was also evidence from Mr Demeyer that Mr Ohl claimed that he had purchased chattels to the value of $210,000. The critical issue for the jury was whether or not to accept Mr Ohl's case that both acts were done at the urging of Mr Demeyer. It is difficult to see how the jury would have been likely to acquit based on an argument that Mr Ohl did not author documents claiming monies he had sought from his business partners. The fact remains that there was oral evidence that such payments were sought by Mr Ohl.
Counsel for Mr Ohl seems to rely on a suspicion that Exhibits P13 and P16 must have been authored by someone other than Mr Ohl because they were not on the disc, and that there were modifications to files on Mr Ohl's computer after he left his business. Simply because documents were not on a particular disc taken from a computer used by Mr Ohl does not mean that they were not created by him or on his behalf. On the question of modification, I accept the submission of Crown counsel that even any downloading of a document may show up as a modification of a computer file.
Counsel for Mr Ohl, in support of the application for an extension of time, relied on authorities such as Smillie v Tasmania [2017] TASCCA 26 at [68]-[70] to support a submission that a miscarriage of justice had occurred. As the Court made clear in Smillie, "fresh evidence" is evidence that was not available at the time of the trial, or could not, with reasonable diligence, have been obtained at that time. There is nothing on the copy disc of documents taken from Mr Ohl's computer which is "fresh evidence". There is no new piece of evidence. Rather, what is relied on is the absence of Exhibits P13 and P16 from the disc. This omission is not fresh evidence in the true sense of that expression. In any event, I do not consider that it raises a significant possibility that if evidence about what was on the disc had been adduced, the jury would have acquitted. As will be discussed later, on the issue of incompetence of counsel, the trial was conducted on the basis that no tendered documents had been authored by those persons who, on the face of the documents, had in fact authored the documents. Such was the unchallenged evidence of Mr Stevens.
In conclusion, it is not clear that the decision of the jury is attended with such doubt so as to make it probable that any appeal would succeed. The application for extension of time based on the documents tendered at trial fails. I now turn to the question of improper conduct of the trial by defence counsel.
Incompetence of counsel
Mr Garth Stevens, a legal practitioner, gave evidence during the hearing of this application that he instructed and appeared with Mr Barker at the trial. Mr Stevens said that the trial was not conducted on the basis that the tendered documents had been authored or created by another person or persons. He received no instructions to object to the tender of any documents. Although Mr Ohl claimed that he wanted to give evidence at his trial, in his evidence on this application Mr Stevens gave unchallenged evidence that Mr Ohl's instructions were that he would not give evidence at the trial.
Mr Stevens said that Mr Ohl's case at trial concerning count 1, based on his instructions, was that there was no deception. Mr Fraser, Mr Ohl instructed, suggested an arrangement for their mutual benefit or turned a blind eye to the falsity of Mr Ohl's representations. Mr Stevens said the documentation tendered, on instructions, represented agreed or acquiesced arrangements. In respect of count 2, Mr Ohl's instructions were that Mr Demeyer had suggested an arrangement for their mutual benefit or had turned a blind eye to the falsity of the representations.
Mr Stevens gave evidence that post-conviction he advised Mr Ohl that there was no merit in an appeal against conviction or sentence. Mr Ohl accepted that advice. When the Crown appealed against sentence, Mr Stevens was instructed not to cross-appeal.
Mr Stevens said that Mr Ohl re-engaged Mr Barker for the Crown's appeal against sentence and, at that time, raised no issue about Mr Barker's conduct of the appeal.
Incompetence of counsel can, in some circumstances, result in a party not receiving a fair trial. While some general criticisms may be made about Mr Barker not putting very detailed instructions to Crown witnesses in cross-examination and, in one case, failing to press a witness on a prior inconsistent statement, it is not clear that he acted in an incompetent fashion. The extent to which opposing witnesses are challenged on instructions before a jury will often be a question of degree and fine judgment. There is no evidence of any glaring, critical omission made by Mr Barker in cross-examining Crown witnesses. Mr Barker's conduct of the trial was consistent with his instructions that Mr Fraser and Mr Demeyer suggested the arrangements the subject of the respective counts.
Counsel for Mr Ohl conceded in reply submissions that the application would not be pressed if the only ground was incompetent counsel. This was a wise concession. It is not clear the jury verdicts would have been attended by such doubt that an appeal would succeed based on the allegation that Mr Barker conducted the trial incompetently.
Conclusion and order
Having regard to the foregoing the Court is of the view that the application for an extension of time for leave to appeal should be refused. There is no merit in what may be described as the "documents" point. There is also no merit in the incompetence of counsel point.
The order of the Court is that the applicant's application dated 18 October 2016 is dismissed.
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