R v Parkes - [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

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.
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
Armitage DCJ then remanded the appellant for sentence to the District Court in Sydney on 3 August, and refused bail.
Proceedings on sentence commenced before Christie DCJ on 24 August 2001, the appellant still being represented by Mr. Gelbert. Documentary evidence was tendered and admitted without objection, including a Statement of Facts. Counsel addressed on penalty. The matter was then adjourned to 1 November 2001 at 2pm for sentence.
On 1 November 2001, Mr. Gelbert and his instructing solicitor sought and were granted leave to withdraw, in circumstances where the appellant wished to apply to withdraw his plea of guilty. The matter then adjourned; and after some further adjournments, Christie DCJ heard this application on 11 June 2002 and 19 July 2002.
On 5 September 2002, Christie DCJ gave judgment in which he dismissed the application to withdraw the plea of guilty; and on 16 October 2002, he passed sentence on the appellant.
At that time, the appellant was serving a sentence for other offences, the total head sentence being for five years from 25 May 2001, with an overall non-parole of three years expiring 24 May 2004. Christie DCJ sentenced the appellant on count 2 to twelve months imprisonment, to date from 24 May 2004 and expiring on 23 May 2005, and on count 1 to six months imprisonment to date from 24 May 2004 and expire on 23 November 2004. He fixed a single non-parole period of four years expiring on 23 May 2005.
On 13 September 2002, the appellant lodged a Notice of Intention to Appeal, which lapsed on 13 March 2003. On 1 April 2004, he filed a Notice of Appeal against conviction and sentence, and a Notice of Application for Extension of Time.
GROUNDS OF APPEAL
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.
The numbers of the paragraphs were added for ease of reference. The diagram referred to is attached at the end of this judgment.
SOME FACTUAL ISSUES
Without detailing all of the alleged inaccuracies suggested by the appellant, it appears that the substance of the challenges to the statement, and the substantial defence that would be raised by the appellant if withdrawal of his plea were permitted, would include the following matters:
1.The transactions in question were approved by the Credit Committee and the Board of Schoeller.
2.They did not involve dishonesty, intention to gain advantage, or improper use of the appellant’s position, inter alia because:
(a)they were for full consideration to Schoeller;
(b)they involved no improper advantage to the appellant or his wife.
3.As to (a), in respect of the three smaller payments, the loan to Barrack was protected by caveat, amounts were repaid by 24 October 1996 when the caveat was withdrawn, and Schoeller received a fee from the proceeds of the second mortgage from which the amounts were repaid.
4.As to (a) in respect of the larger payment, this was a loan to Pantec which dealt with Schoeller on commercial terms and had given security to Schoeller in respect of its loan account.
5.As to (b), the appellant and his wife obtained no interest in the property, and paid a commercial rent for their occupation of it.
6.The beneficiary of the transaction was Pan Pacific Bankers (HK) Trust, which was associated with a Mr. Cha or Mr. Chia; and it owned Schoeller with a paid up capital of $1 million.
Part of the complaint of the appellant is that, when he pleaded guilty, he was unaware of material that would have assisted his defence. Before reviewing what appears to me to be the most significant of this material, it is convenient to set out some additional facts concerning the Vaucluse property, which do not seem to be the subject of dispute.

It appears that Barrack was the trustee of First Capital Trust from 30 May 1996 until 4 May 1997, that Marine & Industrial Technology Pty. Limited (Marine) was trustee from 4 April 1997 to 16 September 1997, and that Barrack became trustee again on 16 September 1997.
The purchase of the Vaucluse property was funded by amounts provided by Schoeller, and also by a loan of $300,000.00 from Arkway Pty. Limited to Barrack, secured on first mortgage, arranged through Shakespeare Haney, Solicitors.
On or about 24 October 1996, Barrack borrowed $50,000.00 from Stanley Wilson, a client of Jasmina Rogers, secured by a second mortgage over the Vaucluse property, of which $46,623.00, part of the principal, was deposited in Schoeller’s bank account with the National Australia Bank. On or about 18 November 1996, Schoeller paid an instalment of $9,000.00 under this mortgage to Mrs. Rogers.
Schoeller was placed into administration on 12 January 1997.
On about 4 April 1997, Marine borrowed $305,000.00 from Norma Smithers and Kentwell & Taylor, secured by a first mortgage over the Vaucluse property, and $94,000.00 from Sydney and Lynette Helprin, secured by second mortgage over the Vaucluse property. These loans were arranged through Kremnizer & Co., Solicitors, and were used to pay out previous mortgages.
On 12 October 1999, the Vaucluse property was sold at auction. The proceeds were barely sufficient to pay out the mortgages, and there was no return to Schoeller. The appellant, and his wife and children, subsequently returned to live in the property by arrangement with the new owner.
Returning to the $145,980.85 applied towards purchase of the property, the records of Schoeller attributed this to the loan account of Pantec, increasing the amount due to Schoeller on that account from $199,023.63 to $345,004.48. The Pantec loan was never repaid, and Pantec was de-registered in June 1997.
I return to the documentary material that the appellant says he was unaware of when he pleaded guilty and which he says would assist his defence. The most significant of this material appears to be the following.
First, there are documents concerning the second mortgage advance of $50,000.00: however, they do no more than confirm that $46,623.00 was paid into Schoeller’s bank account on 24 October 1996.
Next, there are documents confirming the existence of persons named Cha and Chia.
Next, there are documents recording the $145,980.85 as a loan to Pantec, and the existence of security from Pantec (said to be contrary to the Statement of Facts).
Next, there are document showing that the ultimate beneficiary of the trust was Pan Pacific Bankers (HK) Trust, not the appellant or any of his family.
Next, there is a Schoeller document showing debits to First Capital Trust totalling $39,655.00 on 18 July 1996, 25 July 1996 and 20 August 1996, and a credit of $69,000.00 on 21 December 1996. However, this document does not show the receipt of $46,623.00 on 24 October 1996 or the payment of $9,000.00 on 18 November 1996. And there is a First Capital Trust document as at 4 March 1997 showing $40,000.00 from Schoeller repaid out of the second mortgage “Ex Rogers”, and a debit of $145,980.00 to Pantec, but not showing the payment of $9,000.00 on 18 November 1996.
There is a caveat over the Vaucluse property lodged on 9 September 1996 and withdrawn on 24 October 1996; suggesting that it may have been lodged to give security for the $40,000.00 and withdrawn when the second mortgage advance was received.
There is a Barrack document as at 30 June 1998 suggesting an expectation of rent at $400.00 per week in respect of the First Capital Trust.
There are documents suggesting some participation of the Credit Committee and of the Board of Schoeller, contrary to the Statement of Facts.
Finally, there are records of payments to mortgagees or their representatives, said by the appellant to be payments of rent paid direct to the mortgagees. These records start in March 1997 and finish in May 1998.
PROCEDURAL HISTORY
The grounds of appeal need also to be considered in the light of the procedural history of the matter, and it is appropriate to outline this.
The committal hearing occurred in February 2001, and at this the appellant was unrepresented. He was committed for trial on four charges. Although this hearing disclosed relevant material, the appellant says he was unable to satisfactorily investigate it because he was imprisoned on other charges on 25 May 2001.
On 30 March 2001, Mr. O’Connor, solicitor, appeared for the appellant before Blanch CJ, and the matter was adjourned to 6 April 2001 to fix a trial date.
On 6 April 2001, Mr. O’Connor appeared before Blanch CJ, and the trial was fixed for 12 June 2001.
Following his incarceration on 25 May 2001, the appellant applied for legal aid, and this was granted on 9 June 2001.
Meanwhile, on 1 June 2001, Mr. D’Arbon of Counsel appeared for the appellant before Christie DCJ, and sought four weeks’ adjournment. This was opposed by the Crown and refused. The trial date was confirmed for 12 June 2001.
The matter came before Armitage DCJ on 12 June 2001, and on that day Mr. Gelbert applied for an adjournment of two days. This was not opposed and the adjournment was granted.
On 14 June 2001 the appellant, still represented by Mr. Gelbert, pleaded guilty to two charges, and asked that two further offences be taken into account. On 15 June 2001, the appellant signed the following document, witnessed by Mr. Gelbert:
I Damien Parkes am presently charged with 4 counts pursuant to s.232(6) Corporations Act that while being an officer of Schoeller Australia Ltd I did with intent of gain/advantage make improper use of my position by causing Schoeller to pay $155,980.85 to Barrack Mortgage Managers and $29,665.00 to the State Bank of NSW.
I have had a lengthy conference with my barrister, Maurice Gelbert and legal clerk Michael O’Connor yesterday and have now decided to plead guilty to these matters today before Judge Armitage.
I provide these instructions with the knowledge that I am unable to defend these charges with any evidence capable of demonstrating that the house purchase was for anything other than a vehicle to provide accommodation for my estranged wife and 4 children.
I understand that these charges relate to the purchase of a property situate at 355 Military Rd Vaucluse by First Capital Trust and Barrack Mortgage Managers of which Ken Long was a director.
It is clear in the Statement of Facts that I was representing to Ken Long that [struck out].
I understand that if there were some evidence that the house was being rented by my wife or paid for by my or her personal monies then no charges would be forthcoming.
I give these instructions on the basis that I am aware that I am pleading guilty at the first opportunity to a revised set of charges in that charges 1 + 3. I will plead to on the indictment and charges 2 + 4 will be put on a schedule to be taken into account by the sentencing judge.
I am aware that these charges will incur a full custodial sentence.
I am also aware that after pleading guilty today the matter will be adjourned for some time to enable preparation for sentence submissions.
Events leading up to the hearing by Christie DCJ of the application to withdraw the plea are set out above.
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.
In the present case, the application to withdraw the plea was made before sentence, and possibly before conviction. It is not entirely clear whether the remanding of the appellant for sentence amounted to conviction: Maxwell v. The Queen (1996) 184 CLR 501. But while more caution might be required where leave to withdraw a plea is sought after conviction and sentence, the principles that apply where the application is made before conviction and sentence are to similar effect: R v. Favero [1999] NSWCCA 320, R v. Vergara [1999] NSWCCA 352. In general, leave will be granted if the application for leave shows that the plea did not arise from genuine recognition of guilt (whether because of misunderstanding of the facts or of the elements of the charge, or because of pressure, or because of some other reason) and that there is a real question to be tried.
Where the application for leave to withdraw the plea of guilty is made before sentence, and an appeal is brought from refusal to grant that leave, the appeal court will intervene only if the judge who refused leave fell into error in the exercise of discretion in the manner described in House v. The King (1935) 55 CLR 499.
PROCEDURAL MATTERS
The appellant challenges the refusal of adjournments by Blanch CJ and Armitage DCJ. I would take this challenge as extending also to the refusal of an adjournment by Christie DCJ on 1 June 2001.
In my opinion, in circumstances where there was a committal hearing in February 2001 in which the Crown case was led, where the appellant had legal representation in March and April 2001, and where he did not apply for legal aid until about May or June 2001, it cannot be said that the refusal of adjournments were errors justifying appellate intervention. The appellant was incarcerated on 24 May 2001, and undoubtedly this hindered his preparation for trial, but no substantial justification is offered for his not preparing for trial in the period between the committal proceedings and 25 May 2001.
The delay that occurred between the offences and the conclusion of the hearing below is not a matter of material relevance to the present appeal. The delay between the imposition of sentence and the hearing of this appeal appears to a considerable extent to be due to a mistaken belief of the appellant as to how his appeal was to be progressed. I am prepared to grant necessary extensions of time to enable the appeal to be dealt with, but this delay is not a matter that in any way supports the appeal against conviction.
The appellant was refused bail which he sought for the purpose of preparation of this appeal. This is not a matter which can of itself support the appeal, although the Court can take into account that the incarceration of the appellant, who was unrepresented, has restricted his ability to collate material that may have assisted him. However, that question only arises if the Court finds that the decision of Christie DCJ was vitiated by error, so that this Court has to reconsider the application to withdraw the plea.
OTHER CONVICTION GROUNDS
Some grounds can be disposed of briefly. Ground 3 fails: it is appropriate on an application for leave to withdraw a plea to consider whether there is a real issue to be tried, and this is what the primary judge did. Ground 4 fails: rejection of an application for leave to withdraw a plea did not involve a trial on indictment within s.80 of the Constitution. Ground 8 fails: the evidence of Mrs. Parkes was not admitted; nor was it inadmissible since s.18 of the Evidence Act does no more than limit the compellability of spouses to give evidence. Ground 12 fails: the appellant’s evidence in support of his application to withdraw his plea raised and dealt with his communications with his legal advisers, so that evidence as to those communications from his advisers was no longer excluded by privilege.
The remaining grounds are more substantial, and I will briefly outline the appellant’s submissions, which were long and extremely repetitious.
The appellant pointed to cross-examination of Mr. O’Connor before the primary judge, in which Mr. O’Connor admitted inter alia that on 6 April 2001, he was pretty “clueless” about the terms of the matter, had not issued subpoenas, did not have a copy of the s.19 examinations, and had not requested particulars of the four charges. The appellant submitted that he met his barrister Mr. Gelbert for the first time on the morning of 12 June 2001, had a two-hour conference with him on 13 June, when he was advised to plead guilty but asked Mr. Gelbert to see documents held by ASIC; and was told by him on 14 June that he had been to ASIC and they did not have any documents, and that he could not get the transcript of the committal proceedings. The appellant submitted that Mr. Gelbert’s evidence that he had a meeting with the appellant before 12 June, when he explained the elements of the offence, was incorrect, because Mr. Gelbert is recorded in the transcript of 12 June as saying he had met the appellant for the first time that morning.
The appellant referred to documents that he later obtained, and inaccuracies in the Statement of Facts, the general nature of which is referred to above.
The following alleged errors in the judgment of the primary judge were identified, in that, contrary to statements in the judge’s reasons: first, there was evidence of rent paid by the appellant and/or Mrs. Parkes; second, there was no justification for the primary judge’s adverse finding on the appellant’s credit; third, moneys were recovered; fourth, there was evidence that the directors and/or the credit committee knew and approved of the transactions; fifth, there were assertions and evidence as to who was or was not the beneficiary of the First Capital Trust; sixth, there was evidence that the sum of about $145,000.00 referred to in the second count was a loan to Pantec on commercial terms for which security was given; seventh, there were circumstances affecting the integrity of the plea; and eighth, the appellant was not advised by competent and experienced Counsel and was pressured to plead guilty. I will deal with these suggested errors in turn.
In considering whether there were such errors, it is useful to have regard to the relevant elements of the offence. There was no question that the appellant was an officer of Schoeller and that he caused Schoeller to pay the sums in question. The possible issues related to whether this use was improper, whether the appellant intended to gain an advantage for himself and/or Mrs. Parkes, and whether the appellant acted knowingly and dishonestly in this regard. In the present case, the use would be improper if not for the purposes of the company. The provision of accommodation for Mrs. Parkes and the children would be an advantage for himself and/or Mrs. Parkes, at least unless this was for full consideration. The actions would be knowing and dishonest if the use was not for the purposes of the company and if it was not intended that full consideration be given by the appellant and/or Mrs. Parkes, and if the appellant appreciated these things.
Dealing with the first and second criticisms of the primary judge’s judgment, evidence of rent paid by the appellant and/or Mrs. Parkes could be relevant to these issues, if they could help combat inferences that the transactions were not for the purposes of the company, were intended to be an advantage to the appellant and/or Mrs. Parkes, and that the appellant appreciated these things.
Evidence relevant to the actual payment of “rent” by the appellant and/or Mrs. Parkes consisted of documents indicating the following:
1.$1,300.00 paid to Kremnizer & Co., Solicitors on 7 March 1997.
2.$240.00 paid to Kentwell & Taylor on 24 September 1997.
3.$2,047.50 paid to Smithers on 24 September 1997.
4.$1,253.33 paid to S. & L. Helprin on 24 September 1997.
5.Promises dated 2 December 1997 of payments for Smithers of $2,502.50 on 2 December 1997 and 5 December 1997, and $2,957.50 by 12 December 1997.
6.Promises dated 23 April 1998 of payments for S. & L. Helprin of $1,410.00 on 23 April 1998, for Smithers of $2,502.50 on 24 April 1998 and 1 May 1998, and Kentwell & Taylor of $293.33 on 24 September 1998.
7.Actual payment of the first two of those payments.
8.Payments of $1,410.00 to S. & L. Helprin and $2,502.50 to Smithers by 22 May 1998.
The only other document concerning rent was a Barrack document as at 30 June 1998 suggesting an expectation of rent at $400.00 per week in respect of the First Capital Trust; but there was no evidence that this rent was actually paid.
There was no document suggesting any money was actually paid by the appellant or Mrs. Parkes as rent to the mortgagor of the property. There was no evidence that anything was paid by them prior to 7 March 1997, after Schoeller had been placed into administration on 12 January 1997 and after the appellant ceased to have any role in the management of Schoeller. The evidence available suggested no more than payments to mortgagees of amounts not related to any rent figure, but rather to meet amounts owing to mortgagees, and to avoid loss of possession to mortgagees.

In those circumstances, in my opinion there was no material error by the primary judge in saying that there was no evidence of payment of rent, or in the primary judge reaching the view that the evidence of the appellant that he withheld rent was “off the top of his head”. The reasonable inference was that the money that was paid was paid after the appellant lost his connection with Schoeller, simply to meet the requirements of mortgagees, and thus was in no real sense rent. The evidence so regarded could not materially combat inferences that the transactions were not for the purposes of the company, were intended to be an advantage to the appellant and/or Mrs. Parkes, and that the appellant appreciated these things.
Turning to the third suggested error, evidence that Schoeller’s money or some of it was recovered could not directly combat the relevant inferences, but could possibly lend indirect support to defences seeking to combat these inferences. In fact, there was evidence that $40,000.00, representing the amounts in the first count and the two offences in the schedule, was repaid on or about 24 October 1996 from the second mortgage on the property.
However, this could not help combat the relevant inferences, because the payment was not made out of funds of the appellant or Mrs. Parkes but out of a mortgage on the property itself, increasing the amount owing on the property and thereby reducing the chance that there would ultimately be an equity in the property out of which Schoeller could recover the amount of about $145,000.00 referred to in the second count. Furthermore, the same evidence shows a further $9,000.00 of Schoeller’s money being paid out in respect of this second mortgage on 18 November 1996.
Accordingly, while the statement of the primary judge that moneys were not recovered was not strictly correct, this error was not material.
Turning to the fourth matter, evidence that the transactions were known to members of the Credit Committee and/or the Board could help combat relevant inferences, but only if the knowledge extended to relevant aspects of the transaction, including its commercial reality and the role of the appellant and Mrs. Parkes in it. Bare reference in Credit Committee or Board documents to the execution of the second mortgage or the withdrawal of caveat would be of the slightest relevance. In my opinion, there was no material error by the primary judge in saying there was no evidence that the Credit Committee or directors knew and approved of the transactions.
As regards the fifth matter, there was evidence that the true purchaser was a trust in which the Parkes family was not named as a beneficiary; but the named beneficiary was only a further trust, so this evidence did not take the matter much further. The appellant alleged this trust was associated with the ultimate owners of Schoeller; but if in fact the beneficiary was an owner of Schoeller, this would not contribute to the propriety of the transaction. A company cannot properly divest itself of property for the benefit of shareholders. In any event, there was no material error by the primary judge in circumstances where there was no evidence as to what persons were the ultimate beneficiaries.
As regards the sixth matter, the fact that the sum of about $145,000.00 was documented as a loan to Pantec, which had given security, could help combat the relevant inferences, if the purpose of Schoeller was suggested to be a commercial transaction with Pantec, and Pantec was suggested to be the beneficial owner of the property. However, the security in question was a general security given earlier, with no significant evidence of its value, and apparently already securing a debt of about $200,000.00. The apparent payment of $6,623.00 to Schoeller out of the second mortgage is of minimal relevance. Further, there was no suggestion that Pantec was intended to be the beneficial owner of the property, and no substantial explanation of why Pantec would have made available $145,000.00 lent to it for the purposes of the trust which was the purchasing party, apart from vague suggestions of connections between Pantec and the trust. The confusing relationships between the various entities if anything tended to support the inferences against the appellant. In my opinion, no error is shown by the absence of reference to these matters by the primary judge.
Finally, as regards the seventh and eighth matters, no doubt the appellant would have wished to have the opportunity to have access to all company documents held by himself and the liquidator and others, and to have legal advisers examine minutely all these documents and advise as to whether anything in all these documents might possibly assist in his defence; and he did not have this opportunity. However, to a large extent this was his own fault. He had many documents in his own possession, which he did not investigate: the appellant has told us that he probably has copies of many Board minutes and the like, which he has not been able to access since he has been in prison. However, he took no steps to this end between his committal and 25 May 2001.
I accept that Mr. Gelbert was probably in error in his assertion that he had a conference with the appellant about a week before 12 June 2001, having regard to his statement to Armitage DCJ. But having regard to all the circumstances of this case, I do not think the evidence suggests that the appellant did not have an adequate appreciation of the facts and the elements of the offences with which he was charged, nor does it suggest pressure such as to deprive the plea of its character as expressing genuine recognition of guilt. In my opinion, there was no error by the primary judge in finding that the appellant was advised by competent and experienced Counsel, and was not pressured into making this plea.
In all the circumstances, I am not satisfied that material error has been shown in the judgment of Christie DCJ such as to justify appellate intervention.
SENTENCE APPEAL
The appellant seeks to appeal against his sentence on grounds that relate to denial of benefit from totality in sentencing principles (ground 9), and to hardship because of delay in having the appeal considered (ground 15).
In my opinion, the primary judge plainly had regard to principles of totality and sentencing, and in the result arrived at a total sentence that could not possibly be considered excessive.
The delay in having the appeal considered does not of course suggest any error by the primary judge. In my opinion, there is nothing in the circumstances of this delay that could possibly justify the intervention of this Court.
CONCLUSION
I note that additional evidence was sought to be relied on initially by the appellant, and that the Crown also tendered some additional evidence. Ultimately, in circumstances that appear from the transcript of the hearing on 13 August 2004, the appellant did not read his evidence; and there was no occasion for reading the Crown evidence. In circumstances where no error was shown by the primary judge, so that this Court did not itself enter into the question whether leave to withdraw the plea should be granted or what the appropriate sentence was, the additional evidence would not in any event have been material.
For those reasons, in my opinion the following orders should be made:
1. Appeal against conviction dismissed.
2. Leave to appeal against sentence refused.
HULME J: I agree with the orders proposed by Hodgson JA and with his Honour’s reasons.
SMART AJ: I agree with Hodgson JA.

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LAST UPDATED: 05/11/2004