R v Dilaveris
[2004] VSCA 77
•28 April 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.267 of 2002
| THE QUEEN |
| v. |
| ALEXANDER DILAVERIS |
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JUDGES: | PHILLIPS and CHARLES, JJ.A. and BONGIORNO, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 30 March and 28 April 2004 | |
DATE OF JUDGMENT: | 28 April 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 77 | |
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CRIMINAL LAW – Conviction – Obtaining property and financial advantage by deception – Pleas of guilty – Application to withdraw pleas – Applicant in custody at times alleged in presentment – Failure to demonstrate that times were material – No miscarriage of justice.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie, S.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Ms J. Dixon | M.M. & R. Pty. Ltd. |
PHILLIPS, J.A.:
I will ask Charles, J.A. to deliver the first judgment.
CHARLES, J.A.:
This is a most unusual application for leave to appeal against conviction. On 19 August 2002 the applicant was arraigned on ten counts of obtaining property by deception, two counts of obtaining a financial advantage by deception and one count of theft, these thirteen counts being alleged in presentment No. P00594273. The applicant pleaded guilty to all thirteen counts. He admitted three findings of guilt and 39 previous convictions arising from ten appearances before the County Court and the Magistrates' Court, and for some of these he had received suspended sentences.
On 14 October 2002 the matter proceeded in the County Court, and the applicant again pleaded guilty to all thirteen counts. Submissions were made by Mr Gamble on behalf of the applicant, including a submission that the offences were committed without any elaborate charade involving false documentation; in other words, it was put that there was not much premeditation or planning and that these offences were committed without any high level of sophistication. It was accepted, however, by defence counsel that a further term of imprisonment was appropriate and the breach of a suspended sentence was identified. The plea was completed and the matter adjourned to 18 October 2002, for sentence.
On 18 October, however, the applicant stated that he wanted to change his plea and the matter was further adjourned. On Monday 21 October that application was made through a solicitor, Mr Yianoulatos, newly appointed to act for the applicant. The applicant was called as a witness and said, on oath, that he had been pleading guilty "on instructions from Legal Aid". More than once, he asserted, he had been told by a solicitor with Legal Aid that it would be best for him if he pleaded guilty, notwithstanding that (according to the applicant) he maintained that he was not guilty. Whether that was so in relation to all of the counts or only some
of them is not clear. It suffices to concentrate on counts 1 to 5, because they are the subject of the present application.
At the conclusion of the evidence, the judge made it plain that he was not prepared to act upon the unsupported assertion of the applicant as to why he had pleaded guilty. As his Honour said -
"Now he has made serious allegations against a couple of lawyers who are representing him. It seems to me if those allegations are truthful, then I'd certainly need to hear from those people."
When the applicant's solicitor indicated that he was not calling further evidence and indeed was not in a position to do so, the judge added -
"Yes when I indicated to you before that unless you are going to call these witnesses who are going to support your client, I simply don't accept his evidence."
When the solicitor referred to the fact that his client had given sworn evidence as to his understanding of what had happened, the judge said this -
"The onus is on your client, as I said to you at the outset, to satisfy me that there is a serious risk of a miscarriage of justice. From 19 August, he has consistently pleaded guilty to these counts. He has been legally advised by a number of different lawyers. If, in fact, he really thought he was not guilty although he implicates [the two solicitors named] as people who, in effect, misled him, he doesn't suggest that about Mr Gamble and at no stage does he suggest to Mr Gamble that he's thought about it, he has had months to think about it. In that situation, I am just indicating to you my view … in the absence of other evidence. If you were to call [the solicitors] and they supported your client, then it may be that I would have to review my present belief in this matter, my present finding, when I don't think he is a reliable witness and as I have said, I have seen him in the witness box a few days ago, where he wasn't - where he was effectively conceding the counts. He had plenty of opportunity then to say look, I'm really not guilty of these matters, but he didn't. He just wanted a deferment of his sentencing."
An adjournment was then sought and reluctantly granted, but then illness intervened and a video-link had to be established on 25 October. Later on that day the judge formally rejected the application to allow the applicant to withdraw his pleas of guilty, expressing himself as far from satisfied that there was any risk of miscarriage, and saying -
"However, you have raised no matters which would justify me in permitting you to withdraw your plea of guilty in respect of those counts. The fact of the matter is that you originally pleaded guilty some considerable time ago, or indicated you would plead guilty some considerable time ago. When you in fact pleaded in this Court and pleaded guilty you then gave evidence and in the course of giving your evidence you never at any stage suggested that you were not guilty of the counts. In fact the only purpose it seemed for giving evidence was in fact to seek a deferment of the sentencing and it was only after you became aware that I was not going to permit your sentencing to be deferred that the following day, or the day after you then advised that you were seeking to withdraw your plea of guilty.
You were represented over a period of time by a number of solicitors and by Mr Gamble who represented you. I invited, through your now counsel, you to produce other witnesses which would corroborate the evidence you gave before me to the effect that you had told your legal representatives that you were in fact innocent of these charges but notwithstanding you telling them that they told you, 'Well you should plead guilty because it's in your interests to do so.' Now in fact none of those people have been produced to this Court. I regret to say, having observed you in the witness box and observed you on two occasions in the witness box, I would not be prepared to accept your evidence unless it was supported by some other independent source.
There is absolutely no material that had been brought before me which would satisfy me that there is any serious risk of a miscarriage of justice if I did not permit you to withdraw your guilty pleas. In these circumstances I am bound to refuse your application … "
On 25 October 2002 the judge then proceeded to sentence the applicant to six months' imprisonment on each of the thirteen counts. Two months on each count were ordered to be served cumulatively upon the sentence imposed on count 1, making a total effective sentence of 30 months. His Honour restored the suspended sentence of two years and directed that the applicant serve it. He ordered that one year of the suspended two-year sentence be served concurrently with the 30-month sentence imposed on the thirteen counts on the presentment. The total effective sentence then became 42 months, of which a non-parole period was fixed at 30 months. Compensation was ordered to be paid by the applicant to his victims. On 28 October 2002 the applicant filed notice seeking leave to appeal against both conviction and sentence.
It is in these circumstances surprising to find that the three grounds of appeal against conviction upon which the applicant now seeks to rely if his application to amend is granted are all based on a claim that the applicant was actually in custody during the dates between which the offences in counts 1 to 5 were said to have occurred. Counts 1, 2, 3 and 5 were alleged to have occurred between 1 February 1998 and 1 April 1998 (or in one case 31 March 1998) and, according to the applicant, he was in gaol between 27 June 1997 and 8 July 1998. If that be right, he could not have been committing the offences as alleged. Count 4 alleges the theft of cheques between 1 April 1998 and 31 August 1999, so that, at least in respect of part of that period also, the applicant was in gaol. It is on that basis that it is now claimed that there is a risk of miscarriage due to the fact that the applicant was in gaol until 8 July 1998, and that there was error in the judge's not permitting the applicant to change his plea of guilty.
There is more than one difficulty facing the applicant in this matter. First, as I have said, he pleaded guilty to all relevant charges on 19 August and confirmed the plea on 15 October 2002. Secondly, he made application to withdraw his pleas on the ground that he had been misled by the Legal Aid Office which, he said, had persuaded him to plead guilty despite his claim to be innocent. Thirdly, at no stage before 18 March 2004, when he filed notice of intention to seek to substitute grounds of appeal, did the applicant suggest that the convictions were unsafe because he was in gaol at the time. It must be remembered that the dates on which the offences were alleged to have occurred are not an essential part of the offence: a possibility therefore is that there was a mistake as to the dates on which offences were committed, but not as to the fact that the offences actually occurred, or that the applicant was the guilty party.
The application came before this Court first on 30 March last, the applicant then relying upon a notice filed on 24 March of intention to substitute grounds of appeal. That notice sought to substitute entirely new grounds in relation to conviction and, in effect, abandoned any application for leave to appeal against sentence. The new grounds raised matters which ought to have been, but were not, put to the sentencing judge, and in all the circumstances (especially the lateness of the notice) the Court, anxious to ensure that there had been no miscarriage of justice, allowed further affidavits to be filed. We adjourned the hearing until today, giving directions for the filing of affidavits and, as well, for the filing of any further outlines of submissions. Further affidavits have since been filed and we have a further outline of submissions from the respondent, but the applicant notified the Registry that he was not proposing to file any further submissions.
There is now before the Court an affidavit sworn on 18 March 2004 by Elissa Joanne Watson, an employee of the firm of solicitors acting for the applicant. Ms Watson deposes to her enquiries of the Adult Parole Board and of the Department of Justice, Central Prison Records, establishing that the applicant was indeed sent to gaol on 23 June 1997 and remained there until released on parole on 8 July 1998. It may be accepted, therefore, that he could not have committed the offences alleged in counts 1 to 5 on the dates set out.
On 20 April 2004 the applicant swore an affidavit in support of the application in which he said that he pleaded guilty to the charges the subject of the appeal, for the reasons stated, and in the circumstances explained, in his evidence before the judge seeking to change his plea. The affidavit then sets out the circumstances in which he spoke to various lawyers telling them that he wished to change his plea to not guilty and that he then found James Yianoulatos, a lawyer whom he met shortly before his last appearance in court. Various exchanges with Legal Aid are referred to and the affidavit continues that the applicant feels that "Legal Aid prejudged my case", and adds an assertion that he had problems, both with his mother's health and personal ones, at the time and that he was very confused and depressed. He asserts that he did not realise "that the charges related to events that were alleged to have occurred while I was incarcerated".
The applicant's affidavit still does not contain any explanation for his failing to take this point until the matter came before this Court. The Court is still left without explanation as to why it was that he pleaded guilty to offences which were said to have been committed while he was in gaol, or why, when he sought to change his plea, he mentioned only misleading advice from his lawyers and not the fact that he was in gaol at the time the offences were allegedly committed. The affidavit sworn by the applicant on 20 April 2004 contains no statement in clear terms asserting that the applicant was not in fact guilty of the offences alleged in counts 1 to 5 now before the Court.
The substance of the Crown case against the applicant in relation to counts 1 to 5 was as follows. It was alleged that in February 1998 the applicant went to the Midas Muffler franchise in Oakleigh to have his car repaired. He there spoke to one Lorie Stevens, the owner and manager of the Midas Muffler franchise. Stevens in a statement identified the applicant as the person to whom he spoke. The applicant, it was said, told Stevens that he had access to a number of repossessed Harley Davidson motorcycles, and that, as he knew a liquidator, he could secure a motorcycle for Stevens for $10,000. He said that if Stevens wanted to purchase one of the motorcycles he would need to provide a $3,000 deposit immediately to the applicant. Stevens provided the cash to the applicant as a deposit on a motorcycle (count 1). Over the following two or three weeks after this incident, the applicant visited the Midas franchise regularly, and told Stevens that he could obtain a BMW motor vehicle also the subject of a liquidation. He said that to secure this motor vehicle he required a $3,000 cash deposit. On this occasion Stevens provided the deposit sought, by means of a $3,000 cash advance on his bankcard. Over the next weeks the applicant made various excuses for the delay in the delivery of the Harley Davidson motorcycle and the BMW vehicle. Stevens never received either of them, nor did he receive the return of his deposit money (count 2).
During the period in which the applicant was making excuses as to why the BMW and Harley Davidson had not been delivered to Stevens, he told Stevens that they would arrive in containers and be left at the rear of the Midas premises. Since this was not a secure area, the applicant told Stevens he would provide security guards at his expense after hours, in case the containers were delivered without notice. These guards were to be provided by a company called "Ace Force Security" owned by Allen Ward. According to a statement from Allen Ward, he met the applicant in early 1999 whilst on patrol in the Yarraville area. The applicant and Ward discussed Ward's business and the applicant told Ward he could help him by getting more work in the Footscray and Sunbury areas. One day in January or February 1999, the applicant telephoned Ward, telling him he had a job for three guards at Midas Mufflers in Oakleigh, the work to commence that night and consisting of random checks on the property between 8 p.m. in the evening and 6 a.m. in the morning. Ward arranged for three guards to attend Midas Mufflers, and on his account the job was to last for about a month. The applicant continually rang Ward during this period, promising to pay the cost of a security guard. The applicant never paid for the services of the security guards and Ward discontinued the service (count 3). Then, after providing the security services to Midas Mufflers, Ward met the applicant at Budget Car Rental in Footscray, at the applicant's request. Ward was still pursuing the money owing to him for security services. During this time a number of cheques disappeared from the glove box of Ward's car. The cheques came from a National Bank cheque book in the name of "Ace Force Security". On one occasion at the Budget rent-a-car premises, Ward had used the toilet. When he returned to his car he saw the applicant inside it. When challenged, the applicant said he was looking at Ward's car to see if there was any damage. Later, the National Australia Bank advised Ward that a cheque written under the name of "Ace Force Security" had been dishonoured. Ward confronted the applicant about this, since he remembered the occasion on which he found the applicant in his car. The applicant denied he had stolen the cheque but agreed to pay the dishonour fee of $35. The cheque was the subject of count 4, or was another of those stolen by the applicant and used to pay Stevens in relation to count 5 (count 4).
Shortly after these events the applicant brought a second motor vehicle to Midas Mufflers for repairs. The applicant told Stevens this vehicle belonged to his fiancée. Repairs were performed at a cost of $1,100. The applicant promised to pay at the end of the following week. The applicant did not pay for the repairs as promised and again offered various excuses for delay in paying this money (count 5).
It was originally the Crown case that by March 1998 Stevens contacted the applicant and demanded the whole of his deposit moneys, $6,000, and payment for the repairs to both cars. The applicant arranged to meet Stevens at a car rental company in Footscray. Stevens went to the meeting, and Allen Ward also was present, although the applicant made a point of keeping the two men apart. The applicant provided Stevens with a cheque for $10,000 in the name of "Ace Force Security". The applicant told Stevens this figure represented the $6,000 he had paid as deposits for the two motor vehicles, the $1,100 in car repairs, and the balance was interest. Stevens immediately deposited this cheque into his account with special clearance, but it was dishonoured the next day.
This Court now has before it statements made by various witnesses, some on the basis of which the Crown acted at the time of the consideration of imposition of sentence and some recently reconsidered. Stevens, in a statement dated 5 November 2001, described the incidents giving rise to counts 1, 2 and 5 as occurring in the early months of 1998. In a second statement dated 2 April 2004, Stevens maintained his memory of the dates of the incidents. However, he stated that the $3,000 in relation to count 2 was obtained from the ANZ Bank in Oakleigh as a cash advance on his bankcard. Stevens stated that this was the only cash advance he ever withdrew for any purpose from his ANZ banking accounts. Further investigations by police, and deposed to in an affidavit of Jennifer Joan Combes dated 26 April 2004, reveal that there was a cash advance of $3,000 from an automatic teller machine in Oakleigh from the ANZ account of Stevens on 16 December 1998. The account is in fact in the name of Ringwood Exhausts Pty Ltd, but the card holders for that account are recorded as “Lawrie Stevens” and Anne Lear. This evidence supports the view that the transactions Stevens describes in his statements took place late in 1998 and perhaps early 1999, and suggests that Stevens was mistaken when he stated that the events took place in the early part of 1998.
Allen Ward, in a statement of 5 October 2000, stated that the transactions giving rise to count 3 occurred in early 1999. A second witness, Mark Charles Darmanin, in a statement of 12 April 2004 recalls events occurring during 1997 or 1998, and no later than 14 January 1999. A third witness, Warren David Walters, in a statement dated 11 April 2004 places the events in late 1998. Darmanin and Walters were security guards employed by Ward to patrol the premises of Midas Mufflers at Oakleigh.
Ms Dixon for the applicant submitted that the convictions on counts 1 to 5 were reached in circumstances where there had been a miscarriage of justice, having regard to the applicant having been incarcerated at the times alleged in the counts, although she properly conceded that the onus was on the applicant to establish this, and that the onus was a heavy one: Vella[1]. Ms Dixon conceded that the evidence called before the sentencing judge fell short of establishing that the applicant had been overborne by his legal advisers and that the judge was entitled to view the application to change the pleas with a degree of scepticism.
[1](1984) 14 A.Crim.R. 90 at 95.
It was then submitted that the material before the Court on 30 March did not disclose a strong Crown case, that the evidence of Ward and Stevens was inconsistent and that no independent documentary or banking evidence had then been produced, the last fact presumably being brought about by the applicant having twice indicated his intention to plead guilty. Ms Dixon submitted that the applicant should however have been permitted to change his plea, and, even if the judge was not in error in refusing to permit him to do so, this Court should intervene to correct a miscarriage of justice in respect of counts 1 to 5.
Counts 1 to 5, and the material in the Crown brief supporting the prosecution case, all of which had been served on the applicant, clearly identified the businesses, the locations and the factual circumstances giving rise to the charges in counts 1 to 5, as well as the persons involved. At no time has the applicant denied on oath that he
was guilty of the offences alleged in counts 1 to 5, nor has he ever denied that he was the person with whom Ward and Stevens were dealing. The applicant has never stated on affidavit that he is innocent of the charges contained in counts 1 to 5.
In my opinion the sentencing judge was perfectly entitled to reject the applicant's attempt to withdraw his pleas of guilty, and properly exercised his discretion in not permitting the applicant to change his pleas of guilty. Indeed, it would be difficult to contend that his Honour's discretion miscarried on the material that was before him at the time. This Court, on 30 March last, adjourned the matter to enable the parties to place further evidence before the Court, to enable the Court to satisfy itself that no miscarriage of justice had occurred by reason of the dates contained in the presentment. The material since put before the Court in my view establishes that the events alleged in counts 1 to 5 took place, not in the early part of 1998, but perhaps in the latter part of 1998 or early 1999. The hearing of the plea took place on 14 October 2002, nearly four years later, which explains why the memory of witnesses might well have varied as to the precise time when these events occurred.
The fact that the date of the offences was imperfectly alleged in counts 1 to 5 is not fatal to the counts on the presentment (Crimes Act 1958, s.375). The pleading defect was curable without injustice (Crimes Act s.372(1)). The applicant pleaded guilty twice, and the judge exercised his discretion properly in refusing to permit the applicant to withdraw his pleas of guilty. No substantial miscarriage of justice is shown to have occurred. I would give leave to the applicant to amend his notice of application for leave to appeal against conviction to substitute new grounds according to his Notice of 24 March 2004, but would dismiss the application for leave to appeal against conviction. The application for leave to appeal against sentence was not pursued, and should be dismissed.
PHILLIPS, J.A.:
I agree.
BONGIORNO, A.J.A.:
I agree.
PHILLIPS, J.A.:
The order of the Court is as follows:
The application for leave to appeal against conviction and the application for leave to appeal against sentence are both dismissed.
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