R v Parkes

Case [2004] NSWCCA 377

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:    R v. Damien PARKES [2004]  NSWCCA 377

FILE NUMBER(S):
60142/04

HEARING DATE(S):             13 August 2004

JUDGMENT DATE:               05/11/2004

PARTIES:
Damien Parkes - appellant
Regina - respondent

JUDGMENT OF:      Hodgson JA Hulme J Smart AJ   

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC 01/11/0150

LOWER COURT JUDICIAL OFFICER:   Christie DCJ

COUNSEL:
The appellant appeared for himself
Robert Sutherland SC for respondent

SOLICITORS:
Commonwealth Director of Public Prosecutions, Sydney for Crown/respondent

CATCHWORDS:
CRIMINAL LAW - Appeal against conviction - Plea of guilty - Application to withdraw plea dismissed by District Court judge - Principles applicable on appeal.

LEGISLATION CITED:

DECISION:
1.  Appeal against conviction dismissed.  2.  Leave to appeal against sentence refused.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 60142/04
DC 01/11/0150

HODGSON JA
HULME J
SMART AJ

Friday 5 November 2004

R. V. PARKES, Damien

Judgment

  1. HODGSON JA: On 14 June 2001, the appellant, represented by Mr. Gelbert of Counsel, pleaded guilty before Armitage DCJ on two charges under ss.232(6) and 1317FA(1) of the Corporations Law, as taken to be included in the Corporations Act by s.1401 of that Act, namely:

    (i)           On or about 8 July 1996 at Sydney in the State of New South Wales, while an officer of Schoeller Australia Limited ("Schoeller") knowingly and dishonestly and intending to gain, directly or indirectly, an advantage for himself and Catherine Parkes made improper use of his position as such an officer by causing Schoeller to pay the sum of $10,000 to Barrack Mortgage Managers Pty Limited.

    (ii)          On or about 20 August 1996 at Sydney in the State of New South Wales, while an officer of Schoeller Australia Limited ("Schoeller") knowingly and dishonestly and intending to gain, directly or indirectly, an advantage for himself and Catherine Parkes made improper use of his position as such an officer by causing Schoeller to pay the sum of $145,980.85 to the State Bank of NSW.

  2. The appellant also admitted to further offences and asked that they be taken into account, namely:

    On or about 19 July 1996 at Sydney, while an officer of Schoeller Australia Limited ("Schoeller") knowingly and dishonestly and intending to gain, directly or indirectly, an advantage for himself and Catherine Parkes made improper use of his position as such an officer by causing Schoeller to pay the sum of $13,000 to Barrack Mortgage Managers Pty Limited.

    On or about 20 August 1996 at Sydney, while an officer of Schoeller Australia Limited ("Schoeller") knowingly and dishonestly and intending to gain, directly or indirectly, an advantage for himself and Catherine Parkes made improper use of his position as such an officer by causing Schoeller to pay the sum of $16,665 to the State Bank of NSW Limited

  3. Armitage DCJ then remanded the appellant for sentence to the District Court in Sydney on 3 August, and refused bail.

  4. Proceedings on sentence commenced before Christie DCJ on 24 August 2001, the appellant still being represented by Mr. Gelbert.  Documentary evidence was tendered and…

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AGLC
R v Parkes [2004] NSWCCA 377
Case
[2004] NSWCCA 377
Decision Date

CaseChat Overview and Summary

The appellant, Damien Parkes, has appealed against his conviction by the District Court of New South Wales, arguing various grounds for the reversal of his plea and conviction. The primary issues revolve around the validity of the plea of guilty, the procedural fairness of the trial, and the existence of a miscarriage of justice. The court must determine whether the District Court judge erred in refusing to allow the withdrawal of the guilty plea and in the handling of the trial's procedural aspects.

The primary legal issue is whether the District Court judge erred in not granting an adjournment for the appellant to adequately defend a Corporations Law matter, not allowing a plea reversal, and in ascertaining the strength of the defence. Other issues include whether there was a miscarriage of justice due to the appellant's lack of awareness of exculpatory documents, the judge's determination of guilt without a jury, and the validity of the appellant's guilty plea. Additionally, the court must consider whether the appellant's rights were compromised by delays in the prosecution and whether the charges are legally sustainable.

The Court of Appeal considered the principles applicable to appeals against convictions following a guilty plea, noting the importance of the finality of legal proceedings and the principle that a guilty plea is typically an admission of the necessary legal ingredients of the offence. The court examined the appellant's contentions that the plea was entered due to a sense of hopelessness and lack of preparation, rather than a consciousness of guilt. The Court of Appeal assessed the evidence and affidavits presented to determine whether there was sufficient material to support a plea reversal and whether the appellant's plea was a free and voluntary admission of guilt.

The Court of Appeal found that the District Court judge did not err in refusing the adjournment or in assessing the appellant's plea as a free and voluntary admission of the essential elements of the offence. The court held that the appellant's arguments about the lack of preparation and the existence of exculpatory documents did not affect the validity of the plea. The Court of Appeal concluded that there was no miscarriage of justice and that the appellant's rights were not compromised by procedural delays. The appeal against conviction was dismissed.

The Court of Appeal will consider the remaining grounds relating to the sentence, ensuring that the delay and the period the appellant has spent in maximum security are appropriately factored into the sentencing decision.

Orders

Orders of the court

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Background

Background to the litigation

The appellant seeks to rely on the following grounds of appeal:1 That His Honours Blanche and Armitage erred by not granting the Appellant an adjournment sufficient for a Corporations Law matter to be adequately defended. 2 That DCJ Christie erred by not allowing a plea reversal and not accepting the evidence of counsel and the solicitor for the Appellant acknowledging “there was no consciousness of guilt" when the guilty plea was entered. 3 That His Honour erred by attempting to ascertain the strength of the defence when the matter before the court was that of a plea reversal. There was sufficient material to support a plea reversal. The material provided was not an attempt at a full defence. 4 That His Honour erred by judicially determining the guilt of the Appellant in the absence of a jury. 5 That His Honour erred by not establishing from the Appellant whether there were any inducements provided to enter his guilty plea. 6 That there was a miscarriage of justice when the Appellant was informed by counsel that there were no records at ASIC to assist his defence. 7 That His Honour erred by not establishing from the Appellant that all of the documents required were made available to the Appellant and that the decision to enter a guilty plea was made with the benefit of all of those documents. 8 That His Honour erred when he judicially considered evidence that was inadmissible under Section 18 of the Evidence Act. 9 That there was a miscarriage of justice when the Appellant was tried separately on different counts for the same trading period involving the same corporate entity. 10 That a miscarriage of justice occurred when the Crown tendered a Statement of Facts that it knew or ought to have known, contained substantial inaccuracies and inadmissible evidence. 11 That a miscarriage of justice occurred when the prosecution took over 5 years to mount it's (sic) case and continues to occur as the matter is now 8 years old. 12 That a miscarriage occurred with the learned trial judge permitted the Crown to access privileged correspondence. 13 The charges are legally unstainable. 14 Bail should have been granted to allow procedural fairness to the Appellant. 15 The delay in having this appeal considered and the period the Appellant has spent in maximum security occasioned by the delay now needs to be impacted upon the sentence. STATEMENT OF FACTS A convenient starting point for consideration of this matter is the Statement of Facts admitted into evidence without objection on 24 August 2001, but which the appellant contends contains substantial inaccuracies:1. From December 1995 Damien Parkes ("the Prisoner") was an officer and was in control of Schoeller Australia Limited (“Schoeller"). 2. Schoeller purported to operate as a merchant bank and raised unsecured funds from the public until 12 January 1997 when it was placed into administration. It was placed into liquidation on 27 August 1997. 3. In early 1996, the Prisoner told his estranged wife and the mother of their four children, Catherine Parkes, that he would find her alternative accommodation to the two bedroom unit that she and the children were residing in. He said to her that he "would try and get a house". 4. She then saw an advertisement for a property at 355 Military Road, Vaucluse (the “property") in the paper and had a conversation with the Prisoner about her desire to move into the property. He said that he would have a look at the property. After inspecting the property he told her "Yes I'll do it if I can".5. When he was inspecting the property the Prisoner told the Real Estate Agent "This is not for me. I've just got to make sure that it is comfortable for my wife and children."6. In late May 1996, the Prisoner approached a Schoeller employee and former solicitor, Kenneth Long ("Long"), and the following conversation took place: The Prisoner: "We are going to buy a property to accommodate the children of one of the shareholders of Schoeller, Dr Sung Cha. Dr Cha has significant funds in Schoeller. The purchase will be through a trust." Long: "What do you want me to do?"The Prisoner: “Just do the conveyancing."7. On 30 May 1996, a trust was set up called the First Capital Trust. The trustee of this trust was Barrack Mortgage Managers Pty Limited (“Barrack") and the sole director of that company, at that time, was Long. Long had been asked to set up Barrack as a shelf company by the Prisoner in November 1995. The primary beneficiaries of the trust was the Pan Pacific Bankers Trust. The Prisoner was the executive director of both trusts ("the executive director"). The executive director had all the same powers of the trustee to buy and sell property.8. On 30 May 1996, contracts were exchanged for the property (“the first contract”). The purchase price was $460,000. The first contract was signed by the Prisoner. The name of the Purchaser on this contract was Pan Pacific BT Nominees P/L as trustee for the First Capital Trust. This contract was signed by the Prisoner as a director of Pan Pacific BT Nominees Pty Limited.9. The first contract incorrectly showed Pan Pacific BT Nominees as the trustee of the First Capital Trust. That error was remedied by the creation of a second contract dated 5 July 1996 which had Barrack as the Purchaser. This contract replaced the first contract.10. The deposit for the property was paid by way of a cheque for $23,000 dated 7 June 1996 (5% of the purchase price) drawn on the account of Barrack as trustee for the First Capital Trust. This cheque was signed by Long after the Prisoner had said to him, “I need a $23,000 cheque to cover the five percent deposit on the property. Take it out of the First Capital Trust Account. I’ll transfer funds to cover the cheque.”11. The cheque was presented on 14 June 1996 leaving the Barrack account overdrawn for $22,900. On 8 July 1996 and 19 July 1996 the Prisoner authorised the payment by Schoeller of $10,000 and $13,000 respectively to Barrack to cover this overdraft after requests made by Long. The Prisoner signed both cheques and authorised both cheque requisitions.12. The $10,000 payment is the subject of the first count on the indictment. The $13,000 payment is the subject of the first charge on the Schedule.13. On around 2 August 1996 the prisoner signed a letter without an addressee which stated:"RE BARRACK MORTGAGE MANAGERS PTY LIMITED AS TRUSTEE FOR THE FIRST CAPITAL TRUST We refer to the above and confirm that Schoeller is holding funds on behalf of Dr Cha's interests which generate sufficient income on a monthly basis to cover the payments on the loan of $420,000 for the Vaucluse property on the assumption that the interest rate is 12% per annum. It is anticipated that the monthly interest repayments will be made directly from Schoeller." The letter was received by the Solicitors for Arkway Pty Ltd, the first mortgagee. 14. Long drafted this letter on the Prisoner's instructions for a lender or a lender's solicitor. When shown this letter during an examination held pursuant to s.19 of the Australian Securities Commission ("ASC") Act on 8 December 1997 ("the December examination"), the Prisoner admitted that he signed it although he said that he could not recall it. He also admitted that there were no funds on deposit to generate that monthly income. 15. The settlement for the property occurred on 20 August 1996. On that day, the Prisoner authorised and signed a cheque from Schoeller payable to the State Bank of NSW for $145,980.85. This was used to purchase a bank cheque to pay the vendors of the property ("the Cohens") as part of the settlement monies. In the s.19 examination the Prisoner admitted he signed the cheque requisition, he said "I presume I authorised it” but states that he could not recall it. 16. Also on 20 August 1996, the Prisoner authorised and signed a cheque from Schoeller payable to the State Bank of NSW for $16,555. This was used to purchase a bank cheque to pay the stamp duty on the property.17. The first of these two payments is the subject of the second count on the indictment and the second payment is the subject of the second charge on the Schedule. 18. Annexed hereto and marked "A" is a diagram which shows the companies and trusts associated with the Prisoner. 19. The Prisoner admitted in the s.19 examination that his wife and children lived in the property. He stated that it was originally an investment property for a trust with an offshore beneficiary. He admitted signing the first contract for the purchase but said "I was asked to sign it by the beneficiaries of the trust originally ... I think that's Cha … I can't remember". 20. The Prisoner stated that he had inspected the property on one occasion prior to the purchase. The Prisoner stated that either Cha (later in the December examination he said it was Dr Cha) or another person called Chia rang and said that "he was interested in investing ...in the area. And I was familiar with the area, because I know that Mrs Parkes was also in the marketplace. He nominated the place, and I went and had a look at it.”21. In August 1996, Mrs Parkes and her four children moved into the property. There was no rent paid by either Mrs Parkes or the Prisoner to Schoeller. During her examination under s.19 of the ASC Act on 3 July 1998, Mrs Parkes stated that her only understanding was that the Prisoner was buying the property for her and their four children.22. In the December examination, the Prisoner explained how Mrs Parkes and his children came to reside in the property as follows: “There was a problem that he had with his children at university and they didn't want to reside there. ... both Cha and Chia both have kids, both at university Q. .in Australia. A. "Yes... the children didn't like the place”: However in an earlier examination under s.19 of the ASC Act on 29 July 1997 ("the July examination”) the prisoner was asked about Mr Cha's family. He replied: A. "He was divorced. That’s all I know."Q. "Does he have children?" A. "I don't know." Q. "Don't know?" A. "No." Q."Don't know whether he has family or children residing in Australia? A. "No. I'm fairly sure he doesn't. 23. In the July examination the Prisoner has said that Chia had two children and it was he who was "buying property out here and he was going to have his kids educated here”. 24. The Prisoner also attributed the reason for the purchase of the property to Chia in a note written to the liquidator in 1998 where he wrote:“Cheq (sic) to Cohen on behalf of Chia. Chia was owed money from Pantec. We did a set off. Add the Cohen cheq (sic) to Pantec Australia debt. Journal entry December verifies this.”25. This explanation can be contrasted to the explanation of the payment as stated on the cheque requisition relevant to the payment of $145,980.85. The cheque requisition indicated that the amount was to be put to the loan account of Barrack.26. Parkes was a former director of Pantec Australia and continued to exercise financial control of that company.27. In relation to the other three payments, the relevant cheque requisitions indicated that the payments of $10,000, $13,000, and $16,655 were to be put to the loan account of “AWC”. AWC is an abbreviation of Austwide Capital Pty Limited which is also another company controlled by the Prisoner.28. All four cheque requisitions do not match the final accounting records which were delivered to the liquidator by the directors of Schoeller. Those accounts show that none of these payments were attributed as relating to either AWC or Barrack. Those accounts show that the payment of $145,980.85 is recorded as a loan to Pantec Australia Pty Ltd and the payments of $10,000, $13,000 and $16,655 were debited to a General Ledger account in the name of First Capital Trust.29. There is no loan contract or agreement by any of the parties Pantec Australia, Austwide Capital or Barrack, to repay the funds advanced by Schoeller or interest on the funds advanced by Schoeller. None of these advances were reported to Schoeller’s directors or to Schoeller’s Credit Committee. Pantec Australia and Austwide Capital were deregistered on 11 June 1997 and 11 September 1998 respectively. Barrack was placed into liquidation on 30 March 1999.30. The monies advanced by Schoeller in respect of the property have not been recovered by Schoeller. Schoeller was never paid a fee for its involvement in the purchase of the property.31. None of the staff of Schoeller, nor Mrs Parkes, nor any of the Directors of Schoeller have ever met or spoken to, or seen any correspondence to or from Cha or Chia. Neither Cha nor Chia have made a claim in the liquidation of Schoeller. 32. The Prisoner maintains that neither he nor his family are beneficiaries of the First Capital Trust. Notwithstanding this, Mrs Parkes resided at the property from August 1996 until shortly before her death in November 1999. The Prisoner's four children continue to reside at the property. The Prisoner has resided at the property for periods of time between November 1999 and May 2001. 33. As at 1 July 1998, Schoeller had a deficiency of approximately $2.8 million of which investors were owed approximately $2.4 million.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before Christie DCJ, the appellant relied principally on the contentions that he did not plead guilty from any consciousness of guilt but by reason of a sense of hopelessness, because he could not locate documents that would establish his innocence. DECISION OF PRIMARY JUDGE In his reasons for refusing leave, Christie DCJ referred to and accepted the contents of affidavits provided by Mr. Gelbert and Mr. O’Connor. He assessed the appellant as an intelligent person, and also as being capable of saying anything that would appear to him to justify the stance he now took. He said he was not able to accept that the appellant did not understand what he was doing when he signed the written instructions. He said that a proposition put forward by the appellant that he withheld rent in respect of the mortgaged property and paid it to mortgagees was “off the top of his head on 11 June 2002”. The primary judge said that there was no evidence that there was anything that could establish payment by the appellant or his wife for the purchase or occupation of the premises, or that anyone at Schoeller knew, much less approved, of the advances made for the purchase of the property. He said that the moneys advanced by Schoeller were not recovered. He held that the plea was a free and voluntary admission by the appellant of the essential elements of the offence. The primary judge considered that there could be some dispute about some aspects of the facts, meaning the facts set out in the Statement of Facts referred to above, but none that would affect the validity of the plea for the factual basis of the elements of the offence. ISSUES ON APPEAL The grounds of appeal against conviction relate to the following general issues:1.Refusal of adjournments (ground 1).2.Other procedural matters (delay and matters going to preparation of appeal) (grounds 11 and 14).3.Matters going to the integrity of the plea (grounds 2, 5, 6, 7 and 12).4.Matters going to the existence of a real question to be tried (grounds 3, 4, 8 and 10). The remaining grounds 9 and 15 relate to the matter of sentence. The matters in 3 and 4 above are interrelated. The appellant said that his plea did not arise from recognition of guilt because of pressure, lack of preparation and a feeling of hopelessness; and the later discovery of documents both confirms the lack of preparation and pressure and the existence of a real question to be tried. I will deal first with the procedural matters 1 and 2, then with other conviction matters under 3 and 4 above, and then with sentence. First however, I will consider the law applicable to the conviction appeal.RELEVANT LAW As stated by Studdert J in R v. ARG NSWCCA 2/8/83, “an application to withdraw a plea of guilty particularly where followed by conviction and sentence must be considered with caution”; and his Honour went on the cite the following statement by Kirby J in Liberti (1991) 55 A Crim R 120 at 122:For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O'Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81.

Ratio Decidendi

Legal Principle Established

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