R v Taylor
[2006] VSCA 124
•2 June 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 261 of 2004
| THE QUEEN |
| v. |
| MALVYN GREGORY TAYLOR |
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JUDGES: | BUCHANAN, VINCENT and NEAVE JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 5 May and 2 June 2006 | |
DATE OF ORDER: | 2 June 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 124 | |
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Criminal law – perjury - application for further adjournment – application for leave to appeal against conviction and sentence – no purpose to be served by a further adjournment – application for further adjournment refused - appeal against conviction misconceived; appeal against sentence without merit – applications for leave to appeal against conviction and sentence dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.A. Gamble | Instructed by Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | Appeared in person |
BUCHANAN, J.A.
The applicant has applied for leave to appeal against his conviction on one count of perjury and the sentence which was imposed upon him in consequence.
The application for leave to appeal was adjourned on 5 May 2006 in order to enable the applicant to obtain legal representation. The applicant has been unable to obtain legal representation. He now appears in person and seeks an adjournment to enable him to obtain what he calls his file from the Legal Aid Commission and his former solicitor. He has made requests and has been supplied with certain documents, but now claims that there are other documents retained by the Commission.
The applicant is unable to identify any document which might bear upon the application for leave to appeal or which might found or support a ground of the application.
In our opinion, no purpose will be served by a further adjournment of the application and accordingly the application for an adjournment is refused.
(Discussion ensued.)
NEAVE J.A:
The applicant, Mr Malvyn Taylor was convicted of one count of perjury and sentenced to eight months imprisonment. The sentence was wholly suspended for a period of 12 months.
His conviction arose out of events following a judgment against him in civil proceedings. The applicant was held liable to pay damage of approximately $292,000 plus costs. In October 2000, Mr Taylor applied to the Registrar under the Judgment Debt Recovery Act 1984 for an order permitting him to pay the judgment debt in instalments. As part of this process, he was required to swear an affidavit setting out his assets and liabilities. The affidavit was sworn on 18 October 2000.
When he swore the affidavit, he was the registered proprietor of properties at 28 McCulloch Avenue, Seaford and 384 Spencer Street, Melbourne, but these assets were not disclosed, nor did he disclose some outstanding debts.
The applicant was interviewed by the police about the statements made in the affidavit. He denied that he had made false statements and gave evasive answers about his ownership of 28 McCulloch Avenue, Seaford and 384 Spencer Street, Melbourne. During the police interview, he said that he had sold the properties two or three years before swearing the affidavit. It was put to him that it would have been impossible for him to sell the Spencer Street property, because there was a caveat over it and he conceded that “It may be so.” He was also asked whether anyone had advised him how to fill out the Judgment Debtor’s Affidavit of Financial Situation. He replied that he had not received advice and said he had completed it “of [his] own free will”.
The trial
At the date of the trial, the applicant was still the registered proprietor of the Spencer Street property. The evidence also showed that he was the registered proprietor of the Seaford property until April 2002 and was paying off a mortgage on it until July 2000, only a few months before he swore the affidavit. The Crown led evidence at trial about the extent of various debts owed by the applicant, which were omitted from the affidavit.
In order to prove the crime of perjury it is necessary to show that the accused knew his statement was untrue and that he made it deliberately, not inadvertently or as a result of an honest mistake. Thus the main issue at the trial was the state of mind of the applicant when he swore the affidavit. The applicant did not give evidence.
The defence case was that the Crown had not proved that the omissions from the affidavit were made deliberately or dishonestly. Rather this was a case of “carelessness, sloppiness, not criminal behaviour”.
In the case of the Seaford property it was submitted that the applicant may have believed he did not have a beneficial interest in it, because “there were debts eating into the equity of the property” and the mortgage payments were being met from rent paid by a tenant.
It was also submitted that he may have carelessly failed to disclose his ownership of the Spencer Street property because he had defaulted in his mortgage payments and thought the property was lost to him. He may also have been confused about his debts, because some of them were incurred a long time ago.
The Crown case was that the applicant had deliberately sworn a false affidavit and had told lies at his police interview. The Crown contended that the false statements made in the police interview were evidence of the applicant's consciousness of guilt.
The learned trial judge gave a comprehensive and careful jury charge, including a consciousness of guilt warning about the applicant's lies in the police interview. Evidence about various debts owed by the applicant was given at trial. The trial judge warned the jury that they should not reason that the applicant was likely to commit the offence of perjury because he was the kind of man who would not pay his debts.
At the request of the applicant's counsel his Honour also directed the jury that they should not speculate on evidence which was not called or led by the prosecution.
The appeal against conviction
Mr Taylor's grounds for his application for leave to appeal against conviction were that the learned trial judge:
i.erred in finding that there was a lie in the Judgment Debt Recovery Act form filed under the instructions of the Deputy Registrar; and
ii. erred in failing to take into account that there were two contracts of sale over the relevant properties that were omitted on the advice of the Deputy Registrar.
Ground one is misconceived. The trial judge made no such finding. The finding was made by the jury. Both grounds were, in substance, based on the applicant’s contention that the failure to include the two properties, occurred as a result of advice given by Mr Thiele, a Deputy Registrar of the County Court or a member of his staff. This advice was said to be based on the fact that the properties were subject to contracts of sale.
Mr Thiele gave evidence on this matter at trial. The tenor of his evidence-in-chief was that registry staff responded to questions from members of the public about how to fill out forms, but did not give legal advice. The evidence that Mr Thiele gave in cross-examination was summarised in His Honour's jury charge as follows:
“[Mr Thiele] said he could not dispute that the documents were filled out, including the affidavit at the old County Court in the Registry on that day. If asked, he said again, the staff including himself, would help. Providing that that help would be just in relation to procedure, not in relation to legal matters. He had seen, he said, dozens of affidavits of this type, double figures he said. He asked how many people leave parts blank, such as that page that had living at home written on it. He said such people would be in the minority of people who filled them out. He said it was not the sloppiest job he had seen. He had seen much worse, but he put it, he said, in the bottom 25 per cent of documents of that type he had seen.
He was re-examined and he said that the onus in this situation, or these situations is on the applicant in relation to the contents of the document, not on the Registry staff.”
The jury had the opportunity to assess all the evidence, including Mr Thiele's evidence about registry processes and the circumstances in which Mr Taylor completed the affidavit. There was ample evidence before the jury to justify the conclusion that the false statements about the properties were knowingly made by the applicant. The grounds of appeal do not refer to the statements in the affidavit about the applicant's debts, which were also false.
I have referred to his Honour's jury directions above. There is no suggestion that there is any error in these directions. Since the applicant's appeal against conviction is hopeless, I would not grant the application for leave to appeal.
Appeal against sentence
Mr Taylor also appealed against sentence. The learned sentencing judge imposed a sentence of eight months’ imprisonment which was wholly suspended for 12 months.
In his sentencing remarks, his Honour referred to the applicant's financial and personal history as a mitigating factor. The applicant had lost his rural properties because of the break-down of his marriage, a depressed wool market and problems in relation to live sheep export. He had used an agricultural re-establishment grant to buy the two Melbourne properties, but had defaulted on mortgages over these properties.
His Honour found that there was no real likelihood that Mr Taylor would benefit from either property and that he had substantial other debts which were unlikely to be paid. His Honour also referred to the fact that the applicant had no prior convictions, that he was aged 61, that he had significant health problems, including migraines and hypertension and needed to use a walking frame.
His Honour did not accept the submission that this form of perjury was at the lower end of the range in terms of culpability because it was “non-curial”. He said that this was a serious example of perjury because it was “a considered attack on the proper and honest functioning of the legal system”. In his view it was necessary to impose a sentence of imprisonment for the purposes of general deterrence and specific deterrence. The sentence was suspended because of the applicant's prior good character, age, bad health, difficult personal history and present circumstances.
I can find no error in his Honour's sentencing remarks. I would therefore
dismiss the application for leave to appeal against sentence.
VINCENT J.A:
I agree.
BUCHANAN J.A:
I also agree. The orders of the Court will be that the applications for leave to appeal against conviction and sentence are refused.
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